The One in Which Sonia Sotomayor Reverses Herself

The One in Which Sonia Sotomayor Reverses Herself

This is a tale of two class actions filed in one court, the 2nd U.S. Circuit Court of Appeals. In the first, Judge Sonia Sotomayor wrote the opinion that set a new standard for class certification. In the second, she joined the three-judge panel that expressly disavowed her first decision.

The first case, decided in 2001, was In re Visa Check/Mastermoney Antitrust Litigation. It was an antitrust case that sought certification of a class action on behalf of merchants against Visa and MasterCard. The trial court certified the class under Rule 23 of the Federal Rules of Civil Procedure and the credit card companies appealed.

The main issue on appeal was whether the report of the plaintiffs' expert was sufficient to support class certification. The defendants said the report was flawed and they objected to its use. Writing for the two-judge majority of the three-judge panel, Sotomayor affirmed the certification, holding that the standard of expert testimony for certification of a class is less than on the merits of a case. The testimony should be admitted, she said, as long as it is not "fatally flawed."

The district court correctly noted that its function at the class certification stage was not to determine whether plaintiffs had stated a cause of action or whether they would prevail on the merits, but rather whether they had shown, based on methodology that was not fatally flawed, that the requirements of Rule 23 were met.

Five years later, the 2nd Circuit again faced the question of the correct standard to apply in certifying a class action. This time, it was a securities case... [MORE]

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Posted by Robert J. Ambrogi on June 17

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Rodrigo González Fernández
Diplomado en "Responsabilidad Social Empresarial" de la ONU
Diplomado en "Gestión del Conocimiento" de la ONU

 

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