November 12, 2012 Articles

Class Certification after Wal-Mart v. Dukes

Following Dukes, courts are likely to consider whether common questions have common answers.

By Ashish Prasad

There has been much speculation and concern over the impact of the U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), on class action litigation. While some argue that the decision will make it much more difficult for litigants to obtain class certification, others argue that in many cases, the decision will really have little or no impact on resolution of class certification issues.

The impact of Dukes likely will vary depending on the circuit in question. A majority of circuits already were applying standards much like those laid out in Dukes. Others applied much more lenient standards to class certification. The Supreme Court’s decision in Dukes may be best understood as an attempt to reconcile the different circuits’ interpretations of earlier Supreme Court cases.

This article first briefly surveys Supreme Court case history before Dukes to examine the evolution of case law regarding class certification. Next, this article examines Dukes in the context of the law on class certification at the time the decision was rendered, looking specifically at how Dukes affects class certification standards. This article then analyzes case law on standards for class certification after Dukes. Finally, this article explores the practical implications of Dukes on class action litigants.

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