That is the name of my panel this morning at the ABA Section of Antitrust Law Spring Meeting, which is taking place this week in Washington, D.C. For those in attendance, and for my readers at home, here is a copy of the handout with cites to some of the more recent cases construing Dukes and Concepcion.
Our wonderful and very diligent moderator is Amy Ralph Mudge of Venable LLP. Amy co-authors the blog All About Advertising Law. My three co-panelists could not be more distinguished: Miguel A. Estrada of Gibson Dunn & Crutcher LLP, Professor Alan B. Morrison of George Washington University Law School, and Andrew J. Pincus of Mayer Brown LLP.
One of Andy's many claims to fame is that he argued the Concepcion case before the U.S. Supreme Court. His client was AT&T Mobility. Miguel, too, is an experienced U.S. Supreme Court advocate with many arguments under his belt. Alan co-founded the Public Citizen Litigation Group with Ralph Nader in 1972 before turning to academia. He is also a U.S. Supreme Court litigator who has handled many arguments.
This is the description of our panel:
Will the 2011 term decisions represent a sea change in the treatment of class action litigation, or will they be narrowly interpreted by lower courts? At issue -- binding arbitration clauses in consumer contracts (Concepcion), class certification (Dukes), jurisdiction over foreign corporations after Goodyear/Nicastro, and re-litigating dismissed class allegations after Bayer.
I highly recommend the articles that each of my co-panelists submitted (available to Spring Meeting attendees on the flash drive). These are the titles:
- "The Impacts of McIntyre on Minimum Contacts" by Alan B. Morrison
- "The Supreme Court's Strict Application of Rules Governing Access to the Courts: Implications of the Court's 2010 Term on the Availability of Judicial Remedies in the Antitrust and Consumer Protection Contexts" by Miguel A. Estrada and Jesenka Mrdjenovic
- "In re American Express: Erroneously Limiting Concepcion to State-Law Claims" by Andrew Pincus
- "The Impact of Wal-Mart and Concepcion on Antitrust and Consumer Protection Class Actions: A Brief Survey of Recent Developments in the Lower Courts" by Robert J. Katerberg, Adam Linkner and Amy Ralph Mudge
- "Dukes and Common Proof in California" by Kimberly A. Kralowec