United States: A Look At Potential Supreme Court Nominees' Class Action Decisions

Last Updated: February 10 2017
Article by Andrew E. Samuels

Tonight, President Donald Trump is expected to nominate one of three federal appellate judges to the Supreme Court: Judge William Pryor of the Eleventh Circuit, Judge Neil Gorsuch of the Tenth Circuit or Judge Thomas Hardiman of the Third Circuit. While their class action experience varies, all three judges have recently sided with class action defendants on frequently litigated issues: Pryor on predominance, Gorsuch on CAFA removal and Hardiman on ascertainability.

Judge Pryor on predominance in Brown v. Electrolux (11th Cir. 2016)

Writing for a unanimous Eleventh Circuit, Judge Pryor recently vacated a district court order certifying two statewide classes of consumers who complained of "smelly washing machines" allegedly caused by a "rubber seal on the front door [that] retains water, which allows mildew to grow." Brown v. Electrolux Home Prods., 817 F.3d 1225, 1230 (11th Cir. 2016). Judge Pryor identified at least two reasons why the district court abused its discretion in finding Rule 23(b)(3)'s predominance requirement satisfied.

First, the district court certified the plaintiffs' consumer claims even though "their elements of causation," including reliance, "require individual proof." Id. at 1237. Some class members, Judge Pryor observed, might have "already know[n] about the mildew problem, which was well-publicized at the time, when they purchased their ... washing machines." Id. at 1232. This could defeat causation for some putative class members but not others, which could in turn defeat predominance.

Second, the district court "did not first resolve several questions of state law," including whether applicable state law requires "pre-suit notice, an opportunity to cure, and manifestation of the defect." Id. at 1237. All these questions, Judge Pryor concluded, "bear on predominance" because they "could require individual proof" from each putative class member. Id. at 1238.

Remanding to the district court, the Eleventh Circuit "express[ed] no view" about how these predominance questions should be answered. Id. at 1241. Earlier in his opinion, though, Judge Pryor echoed recent Supreme Court precedent in warning that "[t]he party seeking class certification has a burden of proof" under Rule 23, not just a "burden of pleading." Id. at 1234 (quotation omitted).

Judge Gorsuch on CAFA removal in Hammond v. Stamps.com (10th Cir. 2016)

Also in 2016, Judge Gorsuch wrote for a unanimous Tenth Circuit in reversing a district court order that "refused jurisdiction" under the Class Action Fairness Act, which "promises a federal forum for proposed class actions if (among other things) the amount 'in controversy' exceeds $5 million." Hammond v. Stamps.com, Inc., 844 F.3d 909, 2016 U.S. App. LEXIS 22600, at *1, 3 (10th Cir. Dec. 20, 2016).

The Hammond plaintiff complained in state court that she and a putative class of subscribers were misled by Stamps.com, which "lets customers print their own postage from home," about the site's monthly subscription charges. Id. at *1-2. She allegedly believed that she would be charged "only for those months when she actually used its service, not every single month." Id. at *2. She demanded $300 in statutory damages, about $32 in subscription charges and unspecified punitive damages. Id. at *2-3.

Stamps.com removed the case to federal court under CAFA, presenting "uncontested declarations showing that ... at least 312,680 customers called to cancel their subscriptions" within the likely statute of limitations period. Id. at *3. So "if each of these persons were to win the same $300 in damages" that plaintiff demanded, then "the value of this case would exceed $93 million." Id. Even without statutory damages, "the case's potential value would still lie at almost $10 million" – nearly double "the $5 million threshold Congress ordained." Id. Yet the district court remanded to state court because there was no proof that all of the 312,680 potential class members "were actually deceived." Id. at *4.

Judge Gorsuch corrected the district court's "legal error about the meaning of ... 'in controversy'" under CAFA. Id. "[F]ederal jurisdiction under CAFA," he explained, "doesn't depend on how much the plaintiff is likely to recover but on the amount the plaintiff's allegations suggest she might lawfully recover." Id. at *11 (emphasis added). Following the Seventh, Eighth and Ninth Circuits, the Tenth Circuit held that "once the proponent of federal jurisdiction has explained plausibly how the stakes exceed $5 million ... the case belongs in federal court unless it is legally impossible for the plaintiff to recover that much." Id. (quotations and citations omitted).

Judge Hardiman on ascertainability in Carrera v. Bayer Corp. (3d Cir. 2014)

Judge Hardiman has yet to individually weigh in on the Third Circuit's ascertainability requirement for class certification, but he sided with a 9-4 majority in denying rehearing en banc of the court's widely cited Carrera decision.

In Carrera, the Third Circuit vacated an order certifying a class of Florida consumers who bought a Bayer diet supplement. Carrera v. Bayer Corp., 727 F.3d 300, 303 (3d Cir. 2013). "[T]he ascertainability question," then, was "whether each class member purchased [the supplement] in Florida." Id. at 307. And that question could not be answered by reference to retailer records or consumer affidavits. Id. at 308. The Third Circuit found "no evidence that retailers even ha[d] records for the relevant period," and reaffirmed its distaste for identifying class members by their own "say so." Id. at 306, 309.

The plaintiff petitioned for rehearing en banc, and the Third Circuit denied the petition by a 9-4 vote. Judge Hardiman joined but did not write for the majority, which reiterated that the plaintiff "ha[d] not satisfied his burden to show that there is a reliable, administratively feasible method to determine class membership." Carrera v. Bayer Corp., No. 12-2621, 2014 U.S. App. LEXIS 15553, at *3 (3d Cir. May 2, 2014). On remand, though, the plaintiff would have "the opportunity to submit a screening model specific to this case that can reliably distinguish between accurate affidavits and fraudulent or inaccurate ones." Id. Only then might consumer "say so" suffice to identify class members.

Ascertainability is a hot topic and the subject of a Circuit split regarding its existence (or nonexistence). (See prior post.) If Judge Hardiman is indeed elevated to the Supreme Court, the future of ascertainability may be brighter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions