In an article for the Washington Legal Foundation's Legal Pulse, Shook Partner Frank Cruz-Alvarez and Associate Rachel Canfield discuss the future of class actions in light of Supreme Court Justice Antonin Scalia's passing. "In the specific area of class-action litigation, Justice Scalia repeatedly thwarted the plaintiffs’ bar’s efforts to encourage liberal interpretation of Rule of Civil Procedure 23 and broadly applied the preemptive effect of the Federal Arbitration Act (FAA)," they write. "His death and vacancy have generated much speculation about how the post-Scalia high court will address class actions and other related cases in the terms ahead."
Cruz-Alvarez and Canfield provide an overview of Scalia-authored opinions in class action appeals and discuss immediate effects of his death on the litigation environment, noting that one company candidly announced it would not seek certiorari in an antitrust class action because of Scalia's absence from the bench. Further, they note, certiorari was denied in Direct Digital LLC v. Mullins, "a case initially thought of as a front runner for review."
"Justice Scalia’s passing and absence from the Court will have a profound impact on the process by which the Court selects and decides future class-action cases," Cruz-Alvarez and Canfield write. "While the current Court sits divided on such issues, confirmation of the next justice, regardless of his or her approach to business litigation issues, will undoubtedly have far reaching implications when it comes to class-action litigation."