Interesting Post-Dukes Class Action Procedural Ruling


Taking a look at the fairly recent decision denying class action certification in In re: Bisphenol-A (BPA) Polycarbonate Plastic Products Liability Litigation, 2011 WL 2634248 (W.D. Mo. July 5, 2011), we weren’t as much interested in the result (denial of class certification) as in the procedure the court adopted following the Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), decision. Heck, the plaintiffs were pursuing multi-jurisdictional class certification in Bisphenol-A. That was pretty much a lost cause for them before Dukes. Indeed, Dukes might not have been as damaging to multi-jurisdictional class actions as the Court’s other recent opinion in Smith v. Bayer Corp., 131 S. Ct. 2368, 2377 (2011), which made the point that even identically-phrased enactments (rules in Smith, but equally applicable to the UCC or a Restatement section) can be interpreted differently in different jurisdictions, thus creating “different standards.” Multi-jurisdictional class actions are dead as a doornail (although why a doornail is less animate than, say, a picture frame or a pencil is beyond us).

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