Skadden has posted its spring 2015 Class Action Chronicle.

As we have noted in previous editions of the Chronicle, a number of federal courts have ignored the problems inherent in overbroad class actions. For example, the U.S. Court of Appeals for the Seventh Circuit has approved certification of consumer classes largely consisting of absent class members who never encountered the alleged defect in certain products, such as washing machines, windows and roofing tiles. The Seventh Circuit and other courts have justified this approach with a promise that the uninjured could be sorted out in later proceedings if necessary — specifically, in individual damages trials following a plaintiff verdict on liability. We have questioned the viability of this approach, noting that class participation is typically quite low in consumer suits even when submitting a claim is as simple as completing a form, and thus the notion that any significant number could be expected to participate in actual damages trials is wishful at best.

These issues were front and center in the U.S. Court of Appeals for the First Circuit’s recent decision in In re Nexium Antitrust Litigation, Nos. 14-1521, 14-1522, 2015 WL 265548 (1st Cir. Jan. 21, 2015). Although a majority of the court failed to grapple with these important practical questions, they were the focus of a well-reasoned dissent that is likely to promote further exploration of these issues in future decisions. (Normally, the presence of a dissent would seem to have made the case ripe for en banc treatment, but further action on the class-certification question is unlikely at this point because the case proceeded to a defense verdict on the merits while the appeal was pending. Nexium, 2015 WL 265548, at *20 (Kayatta, J., dissenting).)

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