July 18, 2012 Articles

Rule 23(b)(2) Certification after Wal-Mart v. Dukes

Some day it may become impossible to certify claims for monetary relief under Rule 23(b)(2), but, for now, it is possible in a narrow range of circumstances.

By Adam C. Dembrow

In the year since the Supreme Court’s decision concerning certification of class actions under Federal Rule of Civil Procedure 23 in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), fierce debate has ensued as to the degree to which the decision has heightened the requirements for demonstrating commonality under Rule 23(a)(2). Often overlooked, however, is the portion of the decision holding that the class claims for monetary relief at issue in Dukes—claims for back pay under Title VII of the Civil Rights Act of 1964—could not be certified under Rule 23(b)(2). An examination of analysis in Dukes of Rule 23(b)(2), as well as of post-Dukes civil rights class actions considering certification under Rule 23(b)(2), suggests that, at most, Dukes has narrowly refined the law on whether class claims seeking monetary relief may be certified pursuant to this rule.

For a civil action commenced by a single named plaintiff, or a small group of named plaintiffs, to be litigated on behalf of a class of plaintiffs, all the requirements of Rule 23 must be satisfied. In particular, the four requirements of Rule 23(a)—numerosity, commonality, typicality, and adequate representation—must be satisfied. Even if all four of Rule 23(a)’s requirements are satisfied, an action may be maintained as a class action only if it is one of the types of class actions specified in Rules 23(b)(1), (2), or (3). Rule 23(b)(2) describes a class action in which “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Rule 23(b)(2) is the rule typically, although not exclusively, used in class actions seeking to vindicate the civil rights of a group of similarly situated plaintiffs. See, e.g., Fed. R. Civ. P. 23 advisory committee’s note (1966) (“Illustrative [of Rule 23(b)(2) class actions] are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.”) (citing cases).

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