If one message leaps out from this past term, it is that the U.S. Supreme Court’s five justice majority greatly dislikes class and aggregate litigation. This message came through loud and clear both in Wal-Mart Stores Inc. v. Dukes,1 in which the Court made class certification virtually impossible in any Title VII class action for money damages and in AT&T Mobility LLC v. Concepcion,2 in which the Court found that the Federal Arbitration Act preempted California’s attempt to mandate class-wide arbitration in standard form retail contracts.
But nowhere is it clearer than in Janus Capital Group Inc. v. First Derivative Traders,3 in which the same five justice majority selectively combs dictionaries to give the narrowest possible construction to the term “maker” for purposes of Rule 10b-5. The net result was that an investment adviser who controlled a mutual fund and drafted its public statements could not be held liable for knowing misrepresentations.
