Donald Falk, Marcia Goodman, Archis Parasharami, Aug 16, 2011
Last year we reported on the en banc Ninth Circuit’s pathbreakingly broad decision affirming the certification of a class of 1.5 million plaintiffs in a lawsuit alleging that Wal-Mart had discriminated against its female employees at all levels. At that time, we noted that the court of appeals had lowered the bar to class certification in several important respects, creating or deepening at least three conflicts among the circuits that might draw the attention of the Supreme Court.
The effects of the Ninth Circuit’s decision were short-lived; the Supreme Court granted certiorari and reversed in Wal-Mart Stores, Inc. v. Dukes. The Court unanimously concluded that the Ninth Circuit had gone too far in approving certification under Federal Rule of Civil Procedure 23(b)(2). Rejecting the Ninth Circuit’s use of that Rule as a less-demanding basis to certify a 1.5-million-member class of individuals seeking individual monetary awards, the Court restored Rule 23(b)(2) to its traditional limits as a means for permitting a class to seek a common injunction or declaration.
In addition, the Court (over dissent) provided its first comprehensive and coherent definition of what it means for a question to be “common” under Rule 23(a)(2). That holding will influence the analysis of damages classes that can be certified only by satisfying Rule 23(b)(3) with proof that common questions predominate over individual ones. Only qu