Business Roundtable and the U.S. Chamber of Commerce filed an amicus brief on February 28, 2019 asking the U.S. Supreme Court to grant a petition of certiorari in McKesson Corp. v. True Health Chiropractic, Inc., which seeks review of a decision from the U.S. Court of Appeals for the Ninth Circuit.
This case presents an important question of federal class action law: Does the burden under Federal Rule of Civil Procedure 23(b)(3) shift to the defendant to establish that individual issues predominate over common ones when the individual issues relate to a defense.
Although the Ninth Circuit stated that it was not shifting the burden, it considered whether McKesson had presented individualized evidence of its affirmative defense of consent at the class certification stage. In doing so, the Ninth Circuit effectively flipped the burden of proof, requiring McKesson to mount a fact-intensive merits defense during class certification.
As Business Roundtable and the Chamber of Commerce argued, the Ninth Circuit’s decision reshapes settled class action procedures and conflicts with decisions from other circuits. Its approach strongly favors class certification and, if it is not corrected, will significantly increase the burden on defendants facing class action suits.