Retail Litigation Center Urges Supreme Court to Reinforce Safeguards Against Overbroad Consumer Class Actions

The Retail Litigation Center (RLC), together with the U.S. Chamber of Commerce, American Tort Reform Association, and Business Roundtable, today filed an amicus brief urging the U.S. Supreme Court to review Bayer Healthcare LLC v. Drake. The case presents the question whether a damages class may be certified before plaintiffs establish that an alleged misrepresentation caused concrete injury across the class. The distinction is consequential as certification creates substantial potential liability and settlement pressure before plaintiffs have established that the challenged representation harmed the consumers they seek to represent. 

The brief argues that the Ninth Circuit improperly permitted certification based on a proposed economic model that had not been performed and could ultimately show no injury. RLC’s brief urges the Court to enforce the constitutional and procedural safeguards governing class certification, warning that inflated litigation costs ultimately burden consumers and workers.  

“Retailers should not be compelled to defend a class action before plaintiffs establish that the challenged representation caused concrete injury across the class,” said Monica Welt, President of the Retail Litigation Center. “Postponing that determination until after certification is not a neutral procedural choice. It subjects retailers to substantial settlement pressure before plaintiffs have established a necessary basis for proceeding on behalf of the class.”

The brief was authored by Candice C. Wong, Madeline Kane, and Phillip McCarthy of Fried, Frank, Harris, Shriver & Jacobson LLP.

 Read the amicus brief here.


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Media Contact: press@rila.org

 Directed by the chief legal officers of the country's leading retail companies, the Retail Litigation Center (RLC) is the only organization dedicated to advocating for the industry's top priorities in the federal and state judiciary. The RLC also works with leading law firms and retail corporate counsel to develop forward-thinking strategies to combat meritless mass action litigation. Founded by the Retail Industry Leaders Association (RILA) in 2010 as an independent organization, the RLC is a 501(c)(6) membership association open to all retailers and select law firms.