December 19, 2013 Articles

Living in a Post-Dukes World

What is the meaning of "trial by formula"?

By Jocelyn Larkin and Della Barnett

Class action defense counsel are trying to assign a meaning to the “Trial by Formula” phrase from Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), that is not supported by the case. The expression is not, by its terms and read in context, a sweeping condemnation of the use of aggregate proof. Nor does the Dukes case assume, let alone enshrine, a constitutional due process right to litigate each class member’s claim individually.

Instead, the phrase “Trial by Formula” refers to just one highly idiosyncratic model of class proof that the Ninth Circuit described as a possible means of calculating damages in its en banc opinion in Dukes, a model that the Supreme Court repudiated. That form of proof—used in the Ferdinand Marcos class action, Hilao v. Estate of Marcos, 103 F.3d 767, 782–87 (9th Cir. 1996), and in no case since—relied on a set of sample trials to extrapolate compensatory damages for victims of torture, “disappearance,” or summary execution. Id. at 786. In Dukes, the Supreme Court merely observed that because Title VII’s unique statutory scheme mandates individual remedy hearings for back-pay claims, the Ninth Circuit’s proposal to substitute the Hilao methodology for those statutory hearings was unacceptable. 131 S. Ct. at 2550, 2561.

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