In This Issue:
Dukes Is No Hazard: Eight Months On, District Courts Have Been Largely Unmoved by Wal-Mart Stores, Inc. v. Dukes
New York Clarifies that Private Securities Claims are Not Pre-empted by the Martin Act
Patent Litigation Update
Life Science Litigation Update
$63.7MM Arbitration Win for Rosen Capital Partners and Other Victories
Excerpt from Dukes Is No Hazard: Eight Months On, District Courts Have Been Largely Unmoved by Wal-Mart Stores, Inc. v. Dukes
In June 2011, the Supreme Court handed down its decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), provoking cries that the case was the “death knell” of the nationwide class action. Less dramatically, Justice Ginsburg, in her partial dissent, accused the majority of “elevat[ing] the [Rule 23](a)(2) inquiry so that it is no longer ‘easily satisfied.’” Id. at 2565 (Ginsburg, J., concurring in part and dissenting in part). Yet eight months after Dukes was decided, an examination of district court decisions suggests that most courts have not been affected significantly by the controversial portions of Dukes. With few exceptions, district courts have continued to hew to their rulings issued prior to the Supreme Court’s decision, as the unique circumstances in Dukes have allowed district courts to shrug their collective shoulders. Rather, the most dramatic effects of Dukes appear to be in the Court’s lesser-known unanimous holding, concerning back pay claims. The recent case law also suggests that Dukes left unresolved the most contentious issue in the case: how to apply the standard from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in a class action setting, an issue that has already created the beginnings of another circuit split, suggesting that the Court may see a Dukes sequel in the near future.
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