By: Robert J. Tucker and Katherine R. Johnston*
Judge Kavanaugh has had very few occasions to address the procedural mechanism of Rule 23. This is not surprising given that few class-action cases end up in the D.C. Circuit. But where he has, Judge Kavanaugh’s commentary suggests that he may be mindful of the realities and difficulties class-action defendants face.
Some insight into Judge Kavanaugh’s views on class actions can be inferred from his dissenting opinion in Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011). In Cohen, the IRS had illegally collected an excise tax on long-distance phone calls. To remedy the problem, the IRS set up a “simple” refund procedure for taxpayers that would allow them to check a box on their tax returns for a standard refund amount. Id. at 719. Taxpayers who were unhappy with their refund amount under the refund rules could file a tax refund suit. Judge Kavanaugh noted that about 90 million Americans took advantage of the refund program.