In Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013), the Supreme Court considered the appropriateness of class certification pursuant to Fed. R. Civ. P. 23(b)(3), which requires that “questions of law or fact common to class members predominate over any questions affecting only individual members.” In holding that the class was improperly certified, the Court reversed the Third Circuit, and emphasized that any economic damages model must comport to the plaintiff’s theory of liability on a classwide basis. The Behrend decision is important to class action defendants because it signals a potentially significant change in the Court’s interpretation of Rule 23’s predominance analysis.
Congress enacted the Federal Arbitration Act (FAA) in 1925 to foreclose judicial hostility to arbitration. 9 U.S.C. §1 et seq. Establishing a liberal federal policy favoring arbitration agreements, the FAA provides in relevant part: "A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. The FAA codified the principle that arbitration is fundamentally a matter of contract. Absent a fatal infirmity to the contract itself, then, the FAA requires courts to enforce an agreement to arbitrate, according to its terms. See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. __, __ (2010) (slip op., at 17); Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989); Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 221 (1985).
2013 may be remembered for the high profile gay, lesbian, bisexual and transgender (GLBT) issues that have played across national headlines. Consider the following. Two cases were argued before the Supreme Court in March with potential for landmark rulings on gay marriage, and for the first time, national polls show most Americans support giving gays the right to marry. In April, the Boy Scouts of America announced the group is considering dropping a hundred year old ban on gay members. Modern Family, which features a same s*x couple, has become one of the most watched television show in the country. And just this past Monday, National Basketball Association player Jason Collins made headlines when he became the first active professional athlete in a “major” North American team sport to come out publicly as gay. Based on these developments, we can assume GLBT individuals can go anywhere with ease, yes? Well, not so fast.