NYU prof is 0-for-3 at SCOTUS this term – which is just what clients want

May 2, 2016

Last week, New York University law professor Samuel Issacharoff filed a brief in his fourth U.S. Supreme Court case of the term, once again standing up for class action plaintiffs. This time, Issacharoff’s client is a union benefits fund prosecuting a racketeering class action against GlaxoSmithKline for allegedly defrauding private insurers by falsely marketing the diabetes drug Avandia. If Issacharoff is successful – as he has been in his three other cases this term – the justices will decide not to take the case.

Issacharoff’s record this year cements his reputation as the man to see if you don’t want the Supreme Court to grant certiorari in your class action. It’s an unusual specialty within the already constricted niche of Supreme Court litigation, but Issacharoff seems to have mastered the art of dampening the justices’ interest in tough class action issues, even those the court has highlighted.

In Wells Fargo v. Gutierrez, for instance, Wells Fargo’s lawyers at Covington & Burling argued in a last-minute brief in March that the Supreme Court should hear its challenge to a $203 million judgment for Californians suing over the bank’s overdraft policies in order to clear up lingering uncertainty over the constitutional standing of supposedly uninjured plaintiffs. The justices took up that question in this term’s Tyson v. Bouaphakeo, and held the Wells Fargo cert petition until the court decided Tyson. The bank said its case could answer the standing questions the Tyson ruling didn’t end up addressing. Issacharoff and class counsel from Lieff Cabraser Heimann & Bernstein countered that standing wasn’t even at issue in the case because the trial judge determined every class member was injured by Wells Fargo’s policies.

The other cert petitions Issacharoff squelched this term featured a clear split between federal circuits on the emerging issue of whether class actions can be certified without objective criteria to identify potential class members, aside from plaintiffs’ affidavits. As you probably recall, the 3rd U.S. Circuit Court of Appeals has said classes may not be certified if affidavits are the only way to ascertain class membership. The 7th Circuit, however, explicitly repudiated the 3rd Circuit’s ascertainability standard in July 2015. The circuit split led to two different cert petitions, one by Direct Digital, the class action defendant in the 7th Circuit case; the other by Procter & Gamble, the loser in a 6th Circuit decision that adopted the 7th Circuit view of ascertainability.

Issacharoff was counsel of record for the class in both cases – and in both, he argued that defendants were ignoring facts to try to arouse the justices’ ideological interest. The Direct Digital and P&G cases involved nutritional supplements that were sold with allegedly deceptive ads. Most purchasers, according to the cert opposition briefs, were identifiable through the defendants’ own records. Even if ascertainability is under debate among the circuits, Issacharoff’s briefs said, neither the Direct Digital nor P&G cases is the right vehicle for Supreme Court review.

Similarly, the new opposition brief in the GlaxoSmithKline Avandia case argues that the Supreme Court should focus on underlying facts and not allow the defendant and its amici to engage in class action fear-mongering. “There is one overriding problem with this account of innocents adrift in the land of rapacious lawsuits,” the brief said. “Petitioner and all three of its amici must withhold the fact – reported all over the public record – that (GSK) pled guilty to criminal charges and agreed to pay the government $3 billion in what is the largest settlement ever against a pharmaceutical company.”

The theme of all of Issacharoff’s cert opposition briefs is that facts unique to a particular case overwhelm broader class action issues. His briefs concentrate on the message that specific lower-court rulings are routine and unremarkable, rather than arguing broadly in defense of class actions.

Since Justice Antonin Scalia’s death, many commentators have speculated that the Supreme Court will be less inclined to scrutinize class actions, and I should point out that all of Issacharoff’s successful cert oppositions this term have been decided after Scalia died. But he fended off some big-business-backed cert petitions while Justice Scalia was still alive, including two related petitions in the infamous moldy washer litigation. If we’re headed for a drought in class action cases at the Supreme Court, at least part of the thanks – or blame, depending on your perspective – should go to the NYU prof.

Issacharoff declined to comment for this story.

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