USA Law and Practice Contributed by: Roger Cooper and Lina Bensman, Cleary Gottlieb Steen & Hamilton
5. Key Trends 5.1 Impact of Key Trends
Federal appeals courts have taken differing approach- es on some of the most consequential recent class certification questions, including: • whether standing must be evaluated prior to class certification; • whether members of the class must be able to be identified in an administratively feasible way prior to class certification; and • whether expert evidence must be evaluated for admissibility before being presented in support of class certification. The United States Supreme Court has recently declined to resolve all three of these outstanding issues, leaving them ripe for future legislation or Supreme Court action. 4.2 Legislative Reform As discussed above, class action waivers in arbitra- tion agreements have traditionally been considered enforceable, particularly after a recent United States Supreme Court decision clarified that the Federal Arbitration Act pre-empts state law to the contrary. In response, recent legislative efforts to bar pre-dispute arbitration agreements in the employment context have emerged, as well as efforts to end class action waiver agreements, though they have not so far suc- ceeded.
Despite efforts from some courts to create more rigor- ous class certification standards, class actions con- tinue to proliferate, and cumulative settlement values for class action litigation have also been increasing over time. Third-party litigation funding has emerged as part of the narrative around class actions; the com- mercial litigation market continues to grow, and more companies face class action litigation in recent years than had previously. Traditional types of class action activity remain key, including employment and labour class actions, and consumer protection class actions. Other areas have also been main drivers of growth, including class action litigation around PFAS, data breach or data privacy class actions, and class actions pertaining to ESG and “reverse discrimination” class action suits. Class actions with claims based on generative AI tools are also an emerging area, and likely to see further growth in future years.
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