Buried within the U.S. Supreme Court’s March 20 per curiam opinion in Frank v. Gaos is an important argument to potentially defeat class certification, said Richmond partners Diane Flannery and Trent Taylor and associate Drew Gann in a Law360 “Expert Analysis.”
Their article, published May 3, focuses on Justice Clarence Thomas’ dissent slip opinion, a sentence that meant little to the outcome of the case but “provides class action defendants with a viable additional argument for lack of superiority in certain class actions.”
Many cases, they noted, proceed as class actions because they are small-claims lawsuits that, as a practical matter, could advance only as a class action. But a federal district court, consistent with Thomas’ dissent, “could analyze another consideration at class certification: the value of extinguishing a class member’s claim.”
It’s not an effective argument in every case, the authors noted in closing, but “it should certainly be considered in the right case with the properly developed record. With defeating class certification the main goal … this argument may help persuade a district court to rule in favor of your client.”