Emory Law Professor Richard Freer addressed the judges of the United States district court and court of appeals for the Eleventh Circuit last week, in a workshop sponsored by the Federal Judicial Center.

Freer was invited to speak on the U.S. Supreme Court’s recent decisions on class actions, which he characterized as “unprecedented.”

The Court has decided five major class-action cases in its past two terms and granted review in four others this year, Freer said, which he finds part of a larger recent trend of the Court’s increasing concern with civil procedure.

“While the popular press has seen the class-action cases as manifesting a pro-business, anti-consumer bias, one of the cases—a 5-to-4 decision by Justice [Antonin] Scalia—actually saved federal class actions from possible evisceration by state law,” Freer said.

“Occasionally the justices line up in surprising ways,” he added. “In that same case, Justices Scalia, [Clarence] Thomas and Chief Justice Roberts held in favor of small-claim plaintiffs to pursue their aggregate claims against an insurance company, while Justices [Ruth] Ginsburg and [Stephen] Breyer would have required individual claims, which was the position espoused by the insurance company defendant.”

Still, Freer says the cases do suggest an increased strictness in applying the rules for class-action certification that will make it more difficult to proceed with class suits. He analogized this trend to the Court's decisions in 2007 and 2009 that increased the detail with which a plaintiff must allege claims to gain access to federal court.

“There is no question,” Freer says, “that the Court is requiring more of plaintiffs – in terms of pleadings and in terms of proof for class certification – than has been required in recent times. These are more than procedural quibbles. They have an impact on access to the judicial system.”

Freer is the Robert Howell Hall Professor of Law at Emory. He teaches civil procedure, complex litigation and business associations.

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