That question plays out in Comcast Corp. v. Behrend , which asks whether an antitrust class can be certified before a district court determines whether the plaintiffs' expert testimony on the method for calculating damages is admissible. It also is raised in Amgen Inc. v. Connecticut Retirement Plans, asking whether plaintiffs in a securities class action must prove reliance on alleged misrepresentation and the falsity of the misrepresentations before certification.
"What is going on here is recognition that the whole war is won or lost at the certification stage," Blatt says. "Very few companies can risk ruinous loss if they take a class action to trial."
Standard Fire Insurance Co. v. Knowles is the first case to present an issue under the Class Action Fairness Act, says Archis Parasharami of Mayer Brown. Under the 2005 law, defendants can remove class actions to federal court when the amount in controversy exceeds $5 million. Standard Fire asks whether a stipulation limiting the amount sought to less than $5 million binds absent class members.
"For practitioners, Standard Fire is going to be very important, because it will determine at a very early stage whether and how you remove a case to federal court," Parasharami says. And Comcast is important, he says, "because battles over expert testimony have become de rigueur in many class actions, and that fight can be outcome-determinative in class certification, which determines whether a case may settle or not."
Human rights groups and businesses are closely watching Kiobel v. Royal Dutch Petroleum , the first case to be heard in the new term. The justices ordered reargument after hearing arguments last term on whether corporations could be held liable under the 1789 Alien Tort Statute for international law violations. That issue is still in the case, but the court added a broader question: whether the law applies extraterritorially.
The highest-profile case of the term thus far is Fisher v. University of Texas at Austin because it draws the justices into an area of the law that remains controversial and has closely divided them in the pastaffirmative action. Under Texas law, the university is required to admit all Texas students who graduate in the top 10 percent of their high school class. The law was intended to promote diversity in the undergraduate institution. Although the plan succeeded in increasing the number of minority students, the university discovered that it still had whole departments and classrooms that were not diverse.
After the Supreme Court's decision in Grutter v. Bollinger in 2003, which held that race could be a factor in individualized consideration of student applicants in order to create a critical mass of underrepresented racial minorities, the University of Texas added that factor to its admissions policy. Abigail Fisher, a white student denied admission, claims that policy violates the equal protection clause of the Fourteenth Amendment and suggests overruling Grutter if necessary to reach that result.
"The premise of the 'whole person' analysis is that the university looks at every relevant factor to determine who should be admitted," says Elise Boddie, acting director of litigation for the NAACP Legal Defense and Educational Fund. "The idea that the University of Texas would not be allowed to consider race is counterintuitive."
The court may decide to "dodge a bullet" by neither overruling Grutter nor expanding affirmative action, adds Ilya Shapiro of the Cato Institute. "Probably the chief justice will say, 'Because the University of Texas is already employing a diversity plan, there is no need to further take race into account.' "
A version of this story appeared in The National Law Journal, a sibling publication of Corporate Counsel.