The Duchesses Come Out Swinging in Dukes: Restoring the Balance in Class Certification

Jay Himes, William Reiss, Aug 10, 2010

With its much-anticipated en banc decision in Dukes v. Wal-Mart Stores, Inc., the Ninth Circuit became the most recent federal court of appeals to address the district court’s role in deciding whether a plaintiff has met Federal Rule 23’s class certification requirements. Like several other federal circuits in recent years, the Ninth Circuit considered whether the district court may analyze the underlying merits of the dispute in determining the class certification issue. The en banc Dukes majority upheld the district court’s merits inquiry where essential to ruling on class certification. At the same time, however, the majority declined to require the district court to resolve disputed expert testimony offered in class certification proceedings, holding instead that such resolution may appropriately await a later stage of the litigation. As we discuss below, while this approach differs from that of other circuits, it is more faithful to the language of Rule 23 and to the function of class certification as a procedural device for managing complex litigation and for framing the substantive issues that these cases present.

Dukes itself arises in the employment discrimination context. However, the majority’s ruling could well have a significant impact on class actions generally, including antitrust cases, both in the Ninth Circuit and in those other circuits where the court of appeals has not yet addressed similar issues.