In an interview Thursday with OTC, Sanford Heisler partner David Sanford said he has no reason to hope for good news from the Court, especially given the Justices’ ruling earlier this month in AT&T Mobility v. Concepcion—a case which precluded consumer class actions in favor of individual arbitrations.
Though the Court granted certiorari to Wal-Mart on the only-a-lawyer-could-love-it question of whether a class certified under the standard for injunctive relief can seek money damages, Sanford said his big fear is that the Justices will use the opportunity Dukes presents to swat down the whole idea of large classes made up of people in disparate circumstances. (In class action lingo, that’s the commonality requirement.) Sanford was in court for the Dukes oral arguments, and said Justices Antonin Scalia and Anthony Kennedy appeared to favor a basic interpretation of commonality, which doesn’t bode well for large employment classes.
If there’s an upside for Sanford Heisler to the Court’s engagement on class action issues, it’s that the firm will be in the vanguard of interpreting the new laws. In the recently-filed Cigna class action, Sanford said, the defense has moved to dismiss, citing the AT&T v. Concepcion opinion. Sanford Heisler, according to Sanford, will be the first firm to argue that the ruling doesn’t apply to employment class actions. And even as the firm braces for the impact of the Dukes ruling, he said, it’s planning to keep bringing race- and gender-bias class actions.
“My judgment: We keep filing these cases, we continue to make the arguments we need to make,” he said. “I want to be the one out front making the arguments.”