Updates on Class Actions Following Dukes v. Wal-Mart

by Spilman Thomas & Battle, PLLC
Contact

[author: R. Scott Adams]

At the Federal Bar Association’s Fall 2012 Banquet and CLE, Robin Shea of Constangy, Brooks & Smith in Winston-Salem will present to attendees on developments in class action litigation in the wake of Wal-Mart Stores, Inc. v. Dukes. In addition to its high profile due to Wal-Mart’s status as one of the largest private employers in the nation and the putative class size of 1.5 million people, Dukes garnered national attention because the Supreme Court of the United States clarified certain issues that are important for class action practitioners. This summary is adapted from Robin Shea’s manuscript and provides a preview of the valuable content that her presentation will provide.

In the context of a sex discrimination case, the majority in Dukes explained that not every aggregation of individual claims can proceed as a class action: rather, would-be class representatives must identify a question of law or fact that is common to all members of the putative class, and the resolution of this issue must dispose of the case. The Supreme Court also clarified the certification of individualized monetary claims, requiring such claims to proceed under Rule 23(b)(3). 

The Dukes Court explained that Plaintiffs must still satisfy the Rule 23(a) requirements, i.e., numerosity, commonality, typicality, and adequacy of representation. Importantly, the Supreme Court conveyed that commonality required “glue” to bind together the claims in a manner capable of class-wide resolution. This concept altered prior decisions that held a disparate impact theory could “conceivably” be used to establish class claims if there was significant proof an employer “operated under a general policy of discrimination” and the discrimination manifested itself in hiring and promotion practices in the same general fashion. The Supreme Court in Dukes found that this theory could not determinate with any specificity how often discrimination played a part in employment decisions. Also, the Supreme Court stated that plaintiffs needed to identify a “specific employment practice” as the “glue” to hold their 1.5 million claims together. 

With respect to monetary claims, the Supreme Court held that applying Rule 23(b)(2) to individualized claims was unfair to plaintiffs and defendants. The Court held that monetary claims could be certified under Rule 23(b)(2), which provides for a “mandatory class,” only when they were “incidental” to injunctive and declaratory relief granted to the entire class. This same reasoning informed the Supreme Court’s rejection of calculating damages based on a random sampling of plaintiffs and their recoveries.

Since Dukes, several federal courts throughout the country have applied the newly clarified standards applicable to commonality. For example, in Stockwell v. City and County of San Francisco, 2011 WL 4803505 (N.D. Calif. 2011), the district court found that plaintiffs did not make the necessary showing of commonality and stated that “statistical evidence of disproportionate impact, standing alone, is insufficient to establish that plaintiffs’ age discrimination claims can be proved on a classwide basis.” On the other hand, the same court held in Delagarza v. Tesoro Refining & Marketing Co., 2011 WL 4017967 (N.D. Calif. 2011) that where plaintiff alleged a common set of practices that applied to all members of the class throughout the facility with only exceptional variations. The court looked for the “glue” and distinguished cases based on the lack of a binding thread for plaintiffs’ cases.

As an alternative for avoiding the effect of Dukes, plaintiffs and courts may be able to rely on “issue certification” under Rule 23(c)(4), which allows an action to be brought or maintained as a class action with respect to particular issues.” Several decisions have highlighted that Dukes did not preclude issue certification and that courts may certify a single cause of action as an alternative to denying certification. See e.g., Kalow & Springut v. Commence Corp., 2011 WL 3625853 (D. N.J. 2011). 

Dukes also explained that Rule 23 does not set forth a mere pleading standard, thus bringing into play consideration of the merits of class action claims. The Supreme Court hinted that expert testimony in support of a motion for class certification (and in opposition) could be subjected to analysis applying the principles in Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Two class cases to be heard in the next term will touch on these issues, but in the meantime, plaintiffs and defendants should assert and defend against any applicable Daubert issues and preserve them for appeal.

Finally, Shea’s presentation will explore the application of Dukes to collective actions under the Fair Labor Standards Act (“FLSA”), which are different than Rule 23 class actions in important ways. Several cases since Dukes have examined whether collective actions should be subjected to the more rigorous analysis of Dukes. These cases have generally rejected such a position, but at least one court explained that Dukes could become relevant at the close of class-related discovery, at which point the court could conduct a specific analysis of each claim to ensure each plaintiff is an appropriate party. Spellman v. Am. Eagle Express, 2011 WL 4014351 (E.D. Pa. 2011). 

This presentation is not to be missed, as it will provide greater substance and detail on these cases, trends in class action litigation, and practice points for those who prosecute and defend these cases regularly.
 

For more information, please contact:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Spilman Thomas & Battle, PLLC | Attorney Advertising

Written by:

Spilman Thomas & Battle, PLLC
Contact
more
less

Spilman Thomas & Battle, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!