Last week I attended the ABA’s National Class Actions Institute in Chicago. If you weren’t there, you really missed out. The annual Institute is one of the few CLE programs with attendance that is evenly divided between the Plaintiff and Defense bars. The presenters are all at the top of their game, and their candor in discussing strategy and future trends makes this an incredibly valuable annual conclave. You should go next year.

I won’t violate the directive against quoting presenters outside the room. Please understand that this is why I’m not crediting folks as I share some of my impressions from the conference below.

My chief takeaway from the conference is that state court class actions are going to have increasing prominence in the future. The issue of standing—i.e., whether a claimant has a concrete injury that gives her a legitimate case or controversy—is being hotly litigated in federal court, and as I’ve previously addressed, the Supreme Court has clearly directed that a mere statutory violation is not enough to create standing in federal court. So the Plaintiffs’ bar appears to be looking for ways to bring such suits in state court, where case-or-controversy precedents may not exist. Look for more state court class actions where the violation of a state or federal statute triggers statutory damages, even if there is no actual injury.

This trend suggests some areas in which the defense bar needs to take action. Most states have precedents suggesting that, because their class action rule is based on the federal Rule 23, federal court decisions are persuasive authorities in those states. But do not be fooled: many states are stuck in a 1970s time warp in which there is a presumption in favor of class certification, with the notion that a class can be decertified later if the trial court deems it unmanageable. In those states, it is as if Walmart v. Dukes never happened. Their high court has not embraced a rigorous scrutiny requirement, they have lax precedents on commonality, and there is no authority dictating that where the remedy sought is damages, the plaintiff cannot have the class masquerade as one for “declaratory” relief.

How can this be? Well, since the passage of CAFA, we have largely removed class actions from state courts. No cases, no opinions to evolve. Moreover, in many states, it is as difficult to obtain an interlocutory appeal of class certification issues as it was in federal court prior to the adoption of Rule 23(f). (Few people take the time to appreciate just how important Judge Higginbotham’s little innovation has been to the development of a robust body of appellate precedent on the elements of Rule 23.)

The defense bar needs to wake up. Although state legislatures often undertake “tort reform,” many states have neglected their procedural rules relating to class actions and the precedents interpreting them, leaving them far outside current federal precedents. When defending claims in these states, lawyers need to make a detailed record on what the federal precedents actually say and the constitutional bases for these holdings. (Rigorous scrutiny, commonality, and other requirements are designed to protect the due process rights of absentees who would be bound by a class judgment.) And when serving on state bar committees and in other contexts, defense lawyers should consider how best to tether their state’s class action law to current federal precedents.