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6 Wake Forest L. Rev. Online 1 (2016)

handle is hein.journals/wflron6 and id is 1 raw text is: WHAT'S COMING FOR CLASS ACTIONS Zoe Niesel* A trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification. Recently, in Wal-Mart v. Dukes,1 Comcast v. Behrend,2 and AT&T Mobility v. Concepcion,3 the Court handed down decisions that increased the burden on plaintiffs' attorneys to show issues and damages common to all plaintiffs in the proposed class, thereby making class certification increasingly challenging for plaintiffs. If the Court continues its trend, the current trio of cases may further increase the challenges associated with bringing a successful class action. I. T HE MARCH AGAINST CLASS ACTIONS It is no secret that the Roberts Court has been somewhat hostile to class actions, with the Court deciding a number of cases4 that substantially limited a plaintiffs ability to use the class certification mechanism to achieve class litigation.5 Recent decisions have * Adjunct Professor at Wake Forest University School of Law. 1. 564 U.S. 338, 131 S. Ct. 2541, 2560 (2011). 2. 569 U.S. __, 133 S. Ct. 1426, 1434 (2013). 3. 563 U.S. 333, 131 S. Ct. 1740, 1748 (2011). 4. Indeed, the sheer number of cases heard on class actions by the Roberts Court has drawn significant scholarly and national attention. See Elizabeth J. Cabraser, The Class Abides: Class Actions and the Roberts Court, 48 AKRON L. REV. 757, 800 (2015) (noting that recent Supreme Court jurisprudence on class actions has resulted in more frequent and searching scrutiny than has occurred during any decade since the modern class action was created by the 1966 amendments to Rule 23); see also Bernadette Bollas Genetin, Back to Class: Lessons from the Roberts Court Class Action Jurisprudence, 48 AKRON L. REV. 697, 698 (2015) (noting a dozen class-action decisions from the Roberts Court). 5. Some scholars have suggested that this is the result of a business- friendly Court, as evidenced by the impressively high win ratio currently enjoyed by the U.S. Chamber of Commerce. See David L. Franklin, What Kind of Business-Friendly Court? Explaining the Chamber of Commerce's Success at the Roberts Court, 49 SANTA CLARA L. REv. 1019, 1019-20 (2009) (noting that in forty-three cases in front of the Roberts Court, the party supported by the Chamber ended up prevailing in thirty, for a winning percentage of almost 1

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