On Monday, the Supreme Court granted certiorari in Fifth Third Bancorp v. Arlington Video Productions – an unpublished Sixth Circuit decision – vacated the judgment, and sent it back to the Sixth Circuit for further consideration in light of Comcast Corp. v. Behrend, 569 U.S. ___ (2013).  As we covered here, the Sixth Circuit in Arlington Video had reversed summary judgment granted to Fifth Third and reversed the district court’s denial of class certification.

In its petition for certiorari, Fifth Third urged the Court to vacate the decision on the grounds that Arlington Video contradicted the class certification principles set forth in Walmart v. Dukes and Comcast.  In particular, Fifth Third argued that, by requiring the district court to sua sponte modify a plaintiff’s class definition that failed to meet Rule 23’s requirements, the Sixth Circuit improperly shifted the burden of defining the class from the plaintiff to the district court, and created a circuit split.  Fifth Third also asserted that the Sixth Circuit failed to adhere to the Supreme Court’s precedents by not conducting a rigorous analysis of its revised class definition or finding that Rule 23 requirements were in fact satisfied.

It remains to be seen what impact, if any, the Sixth Circuit concludes Comcast has on the class certification analysis, and how the Sixth Circuit interprets the GVR (grant, vacate, and remand).  The Supreme Court appears to be paying attention to the Sixth Circuit’s class action jurisprudence – as we reported in April, the Court GVR’d Whirlpool Corp. v. Glazer, another Sixth Circuit class certification decision, in light of Comcast.  On remand in Glazer, the Sixth Circuit reaffirmed class certification, concluding that Comcast did not change the outcome of the Rule 23 analysis. This week, Whirlpool filed its petition for certioriari, arguing that the Sixth Circuit’s commonality and predominance rulings cannot be reconciled with Comcast.  These cases are very significant in the Circuit’s class action jurisprudence, and we will continue to keep a close eye on them.