Trump’s pick for U.S. SC denies he’s against class actions

By Jessica Karmasek | Mar 24, 2017

WASHINGTON (Legal Newsline) - Neil Gorsuch, President Donald Trump’s pick to replace the late Antonin Scalia on the U.S. Supreme Court, this week denied he is against class action lawsuits.

Nominated by Trump in January, Gorsuch faced four days of confirmation hearings by the U.S. Senate this week.

Gorsuch, a conservative who serves as a judge on the U.S. Court of Appeals for the Tenth Circuit, told senators Tuesday he is not necessarily pro-defense, as some have suggested.

“I represented class actions and people fighting class actions,” he said. “I ruled for and against class actions. It depends on facts presented to me.”

Gorsuch said his most recent class action case involved residents who lived near the Rocky Flats nuclear weapons facility, 16 miles northwest of Denver.

The residents, he explained, filed a class action for damage to their property. The plant, for more than four decades, manufactured plutonium triggers for the nation’s Cold War nuclear weapons stockpile.

“It took 25 years up and down the system,” Gorsuch told senators. “I issued a decision saying, ‘Stop, enough, they win.’ I believe it has been finished and they have been paid, and although it has been so long, that it has been their children getting the money.”

In 2015, Gorsuch, writing for a majority of the Tenth Circuit, instructed a trial court to enter judgment for the plaintiffs in the case.

“We can imagine only injustice flowing from any effort to gin up the machinery of trial for a second pass over terrain it took fifteen years for the first trial to mow through,” Gorsuch wrote in the 38-page opinion. “Injustice not only in the needless financial expense and the waste of judicial resources, but injustice in the human costs associated with trying to piece together faded memories and long since filed away evidence, the emotional ordeal parties and witnesses must endure in any retrial, the waste of the work already performed by a diligent and properly instructed jury, and the waiting -- the waiting everyone would have to endure for a final result in a case where everyone’s already waited too long.”

The class action lawsuit, filed in 1990, was settled in May for $375 million by Rockwell International Corp. and Dow Chemical Co. The two companies operated the Rocky Flats facility.

Gorsuch has authored only a handful of opinions on class actions, providing little insight into whether he would fill Scalia’s role as a class action foe.

Scalia, who served on the nation’s highest court for nearly 30 years, often expressed strong opinions against the class action mechanism.

“Judge Gorsuch’s class action opinions reflect his well-known commitment to a textual construction of statutes and an incisive, pungent writing style,” according to a recent survey by Carlton Fields attorneys. “They do not reflect, however, an ideological bias either in favor or against class actions in general.”

Scalia’s death in February 2016 has left eight justices on the court, split 4-4 between being fairly conservative and fairly liberal.

It was Scalia who authored the Supreme Court’s 5-4 opinion in AT&T Mobility v. Concepcion.

In April 2011, the court ruled that companies can enforce contracts that bar class action lawsuits. That means businesses that include arbitration agreements with class action waivers can require consumers to bring claims only in individual arbitrations, rather than in court as part of a class action.

Experts called the decision a “game-changer” for class action litigation.

If confirmed by the Senate, Gorsuch’s views on class actions could come into play sooner than later.

In January, the nation’s high court granted petitions for writ of certiorari, or review, in Epic Systems Corp. v. Lewis, Ernst & Young v. Morris and NLRB v. Murphy Oil USA Inc.

At issue in the cases is the validity of class action waiver clauses in employer/employee arbitration agreements.

Some experts in the class action field expected the three cases to be set for oral argument at the end of the current session. The Supreme Court holds oral argument between October and April, and the cases had been allotted a total of one hour for argument, according to the court’s Jan. 13 order list.

If the court had heard arguments by April, a decision could have been handed down by late June or early July, when the court recesses for the summer.

However, according to a Reuters report last month, the high court notified the lawyers involved that the three cases, which were consolidated, will be scheduled for argument in the 2017 term.

The 2017 term starts in October.

That means a decision likely won’t be reached until late this year or even early 2018.

It also means that, by then, the court more than likely will be back to its full nine justices.

However, Senate Democrats have threatened to filibuster Gorsuch.

Under Senate rules, 60 votes are required to overcome a filibuster. Republicans have 52 seats in the Senate, but they could use their majority to change the rules to lower the minimum threshold.

From Legal Newsline: Reach Jessica Karmasek by email at

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