January 19, 2012 Articles

Finding Commonality: The Lessons of Dukes for Class Litigation

By Jeffrey Krausman and John Lande

In June of 2011, the U.S. Supreme Court issued decisions in two cases applying Federal Rule of Civil Procedure 23 and its standards for class actions: Erica P. John Fund v. Halliburton, 131 S. Ct. 2179 (2011) and Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011). The decision in Halliburton, while important in its own right, has limited relevance to cases not sharing a similar factual background. Specifically, Halliburton dealt with class litigation in the context of investor suits against corporate executives who allegedly inflated stock prices. Dukes, described by the Court as "one of the most expansive class actions ever," examined at length the Rule 23(a)(2) requirement that class actions "state questions of law or fact common to the class." Dukes is important to examine because it represents a comprehensive analysis of the "commonality" and "predominance" standards in Rule 23 and because arbitration rules, such as the Supplementary Rules for Class Arbitration of the American Arbitration Association (AAA) and the JAMS Class Action Procedures, incorporate both the "commonality" and "predominance" standards found in Rule 23.

Premium Content For:
  • Litigation Section
Join - Now