A year post-‘Dukes’ - The Supreme Court answered some questions, but created more, now being addressed in the lower courts

Originally published in the July 23, 2012 edition of THE RECORDER © 2012 ALM Media Properties, LLC.

One year ago, the Supreme Court in Wal-Mart v. Dukes rejected an expansive, nationwide Title VII class action filed on behalf of 1.5 million current and former female Wal- Mart employees. The court held 5-4 that the plaintiff employees had failed to prove the common companywide pattern or practice of discrimination necessary to maintain their claims as a class. Upon remand from the Supreme Court, the Dukes plaintiffs have continued to press new variations of their claims in their quest for class treatment. Plaintiffs have divided their claims into multiple regionally-based class actions, including one currently pending in the Northern District of California. Wal-Mart’s motion to dismiss these class claims was heard last month and is currently under submission.

Not surprisingly, Dukes has since reverberated in class action proceedings across the country. In the three months following the 2011 decision, more than 90 district courts and a handful of circuit court decisions cited the case, often decertifying previously certified classes in an array of areas, including product liability, environmental and mass tort cases. Dukes appears to have also had a measurable impact on the filing of class certification motions. A LexisNexis search of motions for class certifications reveals that in the year prior to Dukes, 520 motions for class certification were filed, with 245 classes certified; in the year following Dukes, 449 motions for class certification were filed, 234 of which resulted in certification. Thus, the filing of class certification motions declined 13 percent.