The Littler Report: DUKES v. WAL-MART: Some Closed Doors and Open Issues

Table of Contents:

I. INTRODUCTION 1

II. A NEW ANALYTICAL FRAMEWORK FOR CLASS ACTIONS 1

A. Individual Evidence Is Relevant to Certification and Liability as Well as Damages 1

B. The Problem with Representative Testimony and Trial by Formula 3

III. SOME OPEN ISSUES 5

A. Dukes’ Potential Impact on Social Science Evidence in Future Litigation 5

B. Application of Dukes to Fair Labor Standards Act Collective Actions 9

IV. AGGREGATE LITIGATION POST-DUKES 12

A. The Ninth Circuit Reverses Course: Ellis v. Costco 12

B. Some District Courts Have Considered Dukes in FLSA Collective Actions 13

V. CONCLUSION 13

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