Alabama's ban on private consumer class actions can't fence Rule 23 in, says the Eleventh Circuit

Lisk v. Lumber One Wood Preserving, LLC, No. 14-11714 (11th Cir. July 10, 2015).

A rotted fence post (courtesy of Marcus Peaston / flickr)

A rotted fence post (courtesy of Marcus Peaston / flickr)

Plaintiff Robert Lisk had a new wood fence installed at his home. But the wood wasn’t properly treated—if it was treated at all—and it rotted prematurely. Lisk has now filed a federal civil action against the manufacturer of the wood, asserting a claim under Alabama’s consumer-protection law. And he brings that claim on behalf of a class of similarly situated people. 

The trouble is that Alabama’s consumer-protection law prohibits private class actions. Lisk acknowledges that state-law prohibition, but argues that in federal court it’s displaced by Federal Rule of Civil Procedure 23. Is it? That’s the main question the Eleventh Circuit answers here. 

This case, the Eleventh Circuit says, is controlled by the Supreme Court’s 2010 Shady Grove decision, which held that a New York statute prohibiting certain class actions was displaced by Rule 23. Now, there were two opinions in Shady Grove: an opinion for a four-judge plurality, and also a separate opinion by Justice Stevens, who concurred in only part of the plurality opinion, but concurred in the judgment. What five Justices agreed on, though, was that, under the Rules Enabling Act, Rule 23 displaced the New York prohibition on class actions. And the Eleventh Circuit believes there’s no meaningful distinction between the New York law in Shady Grove and the Alabama law here. So Shady Grove controls, and Alabama’s prohibition on private consumer class actions must yield to Rule 23.