WSJ Ignores Radical Nature Of New Supreme Court Decision That Curbs Consumer Class Actions

The Wall Street Journal editorial page praised another bitterly split Supreme Court decision in which the conservative justices reached beyond the questions presented to further limit injured consumers' access to justice.

The Court released its decision in Comcast v. Behrend as the historic marriage equality cases were being argued on March 26 and 27, poor timing that resulted in the media largely overlooking the case. Nonetheless, the decision is a significant one and the case is already being described as a sequel to Wal-Mart v. Dukes, another 5-4 decision in which the conservative justices significantly restricted plaintiffs' power to hold corporations accountable for wrongdoing. From the WSJ editorial:

The other news at the Supreme Court on Wednesday was another big defeat for the trial bar. The Justices put a stop to the latest attempt to revive huge legal paydays by ruling 5-4 to reaffirm their requirements for certifying a class action.

In Comcast v. Behrend, the Justices ruled that in order for a class of plaintiffs to be certified they must demonstrate adequate commonality of harm. While the plaintiffs claimed the cable company's monopoly had let it improperly raise prices, the complaints drifted among four disparate theories of liability, with a wide array of potential plaintiffs.


The Comcast and Whirlpool [v. Glazer] cases have made it this far because both the Third and Sixth Circuit Courts of Appeal ignored the Supreme Court's 2011 decision in Wal-Mart v. Dukes that set serious limits on class actions. The current Court has taken much-needed steps to rationalize class certification, and the Justices should make it clear they expect other federal courts to honor the precedents. They should keep taking cases and overturning heedless junior courts until they get the message.

The Comcast plaintiffs were overcharged cable subscribers who tried to sue Comcast for illegally monopolizing the cable market in the Philadelphia area in violation of anti-trust law. The conservative majority on the Supreme Court killed the case before a court could thoroughly consider the merits of their claims and may have surprised both parties by also changing the rules of how classes of this sort can be certified in the future.

The WSJ (and other right-wing outlets) is using the decision as another opportunity to egg on the conservative justices to rewrite precedent and further constrict the certification of class actions on behalf of injured consumers. The editorial makes no mention of the scathing dissent written by Justices Ruth Bader Ginsburg and Stephen Breyer, which liberal Justices Sonia Sotomayor and Elena Kagan joined.

Justices Ginsburg and Breyer took the unusual step of reading the dissent from the bench, signifying the four justices' strong disapproval of the majority opinion. The dissent accused the conservative majority of a "bait-and-switch" by not only appearing to change long-time rules of class certification and dismissing factual findings of the lower courts, but also doing so without giving either side the opportunity to adequately brief or argue the issue. As explained by the Constitutional Accountability Center:

The dissent accused the conservative wing of "[a]bandoning the question we instructed the parties to brief" and “reach[ing] out to decide a case hardly fit for our consideration” - one that was “infect[ed] by our misguided reformulation of the question presented.”

As these quotes suggest, the dissent's main criticism of the conservative majority was that it went out of its way to reformulate the proposed question presented twice: first, when the Court granted cert; and, second, when the conservatives discovered that Comcast had forfeited its legal answer to the reformulated question (after the parties had both briefed and argued the case).  According to the dissent, this move “left respondents [the class of customers] without an unclouded opportunity to air the issue the Court today decides against them.”

From there, the conservative majority took it upon itself to probe the adequacy of the plaintiff class's proposed damages model - “resolving a complex and fact-intensive question without the benefit of full briefing” and relying “on its own version of the facts, a version inconsistent with factual findings made by the District Court and affirmed by the Court of Appeals.”  In the end, the dissent argued that, in ruling in Comcast's favor, the conservative majority “depart[ed] from our ordinary practice, risk[ed] inaccurate judicial decision-making, and [wa]s unfair to respondents and the courts below.”

The U.S. Chamber of Commerce, which supported Comcast like it supported the corporate defendant against allegations of massive and systemic workplace sex discrimination in Wal-Mart v. Dukes, has another win to add to its already-impressive record of victories before the Court. This "corporate capture of the Court" is continuing to restrict access to justice for average plaintiffs on behalf of big business and the liberal justices are loudly sounding the alarm.

Hopefully this warning is not lost amidst all the other hugely important issues the Court is tackling this term. Because it's not just traditional civil rights law that might be rewritten by the summer, it's the entire concept that the American legal system provides a fair shot to the "little guy."