U.S. Supreme Court nominee Brett Kavanaugh has a limited record on class actions and mass torts, but many of his rulings favor businesses, lawyers say, raising the likelihood that he would favor the defense in such cases.
As a judge for the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh has had few dealings with class actions or mass torts. His rulings have focused largely on regulatory matters. But he’s sided mostly with parties fighting regulatory action and, in some circumstances, provided a glimpse of how he would rule in class actions.
“He would likely favor a restrictive view of class actions,” said Carl Tobias, a professor at the University of Richmond School of Law. “His opinions in the regulatory area tend to favor the regulated interests, which are frequent defendants in class action matters. Thus, it is possible to extrapolate from that area to class actions.”
Thomas Dupree of Gibson, Dunn & Crutcher in Washington, D.C., predicted Kavanaugh would interpret the federal rule governing class actions “as written.”
“From this perspective, the law cannot be stretched to facilitate class actions, particularly when doing so may violate the rights of defendants and in some cases the rights of class members as well,” he said.
Kavanaugh’s strongest view on class actions comes in a case called Cohen v. United States, in which 10 taxpayers challenged the Internal Revenue Service’s refund procedure involving taxes on phone calls. In a 2011 ruling, the majority allowed the case to go forward, but Kavanaugh dissented with a strong critique of the plaintiffs.
“Plaintiffs’ ultimate objectives are class certification and a court order that the U.S. government pay billions of dollars in additional refunds to millions of as-yet-unnamed individuals who never sought refunds from the IRS or filed tax refund suits,” he wrote. “And class certification is a necessary prerequisite to the class-wide jackpot plaintiffs are seeking here.”
Kavanaugh ultimately concluded that the plaintiffs failed to go through alternative remedies before suing. But his thoughts about the plaintiffs could portend how he would rule in class actions.
“He basically goes on a minor diatribe against class actions,” said Brian Fitzpatrick, a professor at Vanderbilt Law School. “He just put it in there for color. And why would you do that unless you have some hostility?”
Kavanaugh has dismissed some class actions. In a class action brought on behalf of lactose-intolerant plaintiffs, for example, he tossed failure-to-warn claims against milk producers, concluding “a bout of gas or indigestion does not justify a race to the courthouse.” And in a securities class action, he found an investment fund that lost money on mortgage-backed securities had not made material misrepresentations in its public offering.
“Some of his opinions, in this area, however reflect a view that plaintiffs are better off pursuing individual challenges or taking advantage of alternative procedures, instead of proceeding with a system-wide challenge to government misconduct,” said Adam Zimmerman, a professor at Loyola Law School, Los Angeles. “These decisions may have some relevance to a burgeoning area of class action jurisprudence, where some judges have declined to certify class actions because they believe class action is not ‘superior’ to other kinds of more individualized alternative dispute resolution.”
Kavanaugh has a politically conservative resume. Before becoming a judge, he was associate counsel in the Office of Independent Counsel Kenneth Starr during the investigation of President Bill Clinton, a defense lawyer at Kirkland & Ellis and assistant to President George W. Bush, who appointed him to the D.C. Circuit.
Advocacy groups immediately mentioned Kavanaugh’s favoritism toward business.
A joint statement from the American Association for Justice’s current president, Kathleen Nastri, and incoming president, Elise Sanguinetti, said: “Judge Kavanaugh has time and again sided with corporations, even when it meant risking the safety of families on our nation’s roadways or denying workers their right to band together to hold employers accountable in court for unfair labor practices. We urge the Senate to make workers, investors, consumers, and families a priority when they debate Judge Kavanaugh’s nomination.”
U.S. Chamber of Commerce vice president of media and external communications Blair Holmes said his group looks “forward to reviewing his record on legal issues important to the business community.”
One of those is a 2007 ruling in a tort case called John Doe v. Exxon Mobil. Kavanaugh dissented from a majority opinion written by Ronald Reagan appointee David Sentelle that refused to grant dismissal of a case brought by 11 Indonesian villagers under the Alien Tort Statute, the Torture Victim Protection Act and other common-law torts, like murder and sexual assault. Exxon had hired Indonesian security officials to guard a natural gas facility.
Exxon argued for dismissal due to a “non-justiciable political question,” citing letters from the U.S. State Department that cautioned the lawsuit could negatively affect U.S. relations with the Indonesian government. Sentelle agreed but allowed the common-law tort claims to go forward. Kavanaugh found that the panel should dismiss the entire case.
“That’s a nice case where Republicans were divided, and, dare I say, conservative Republicans, and Kavanaugh took the more conservative view,” Fitzpatrick said.
But Kavanaugh has primarily ruled on administrative appeals and regulatory matters.
In a 2014 opinion, Kavanaugh dissented in favor of SeaWorld in a case challenging a citation the U.S. Occupational Safety and Health Administration leveled after an orca whale killed one of its trainers in Florida.
Kavanaugh called it a “new regulatory arena” for the U.S. Department of Labor, which doesn’t oversee dangerous sports like football or NASCAR racing.
“Why isn’t close contact between trainers and whales as intrinsic to SeaWorld’s aquatic entertainment enterprise as tackling is to football or speeding is to auto racing?” he asked. “The department offers no answer at all.”
He ruled against the Federal Communications Commission in a case addressing whether an agency rule requiring opt-out notices on solicited faxes was lawful under the Telephone Consumer Protection Act. “It is the Judiciary’s job to respect the line drawn by Congress, not redraw it as we might think best,” he wrote in a 2017 decision in Bais Yaakov of Spring Valley v. FCC.
On 2016, Kavanaugh found in PHH v. Consumer Financial Protection Bureau that the structure of the CFPB was unconstitutional because it focused power on a single director rather than multiple members of the agency (an en banc panel overturned that decision earlier this year).
“What it demonstrates is that he’s somebody who’s very concerned about concentrating too much power in an administrative agency, like the CFPB,” said Alan Kaplinsky, co-practice leader of Ballard Spahr’s consumer financial services group. “He’s going to take a closer look at federal government agency action than maybe some other judges might, and not provide as much leeway for agencies as they might otherwise get from a different judge. He’s going to scrutinize their activities more closely.”
But does his CFPB ruling give any indication of how Kavanaugh would rule on consumer class actions?
“No,” Kaplinsky said. “I don’t think it provides any peek into how judge Kavanaugh would view consumer class actions.”