The waves of class action litigation continue to lash against the shores of American business. As the new year begins, it is worth taking stock of recent developments on this front, and what those developments portend for 2014 and beyond. Based on some recent case rulings, case filings and cases under consideration at the U.S. Supreme Court, it is possible to make some forecasts as to the direction and intensity of the class action storm.
In 2011, the Supreme Court, in Wal-Mart Stores Inc. v. Dukes,1 construed the Rule 23(a)(2) commonality requirement in a manner that took some wind out of class plaintiffs’ sails. The Supreme Court reminded litigants that Rule 23 is not a mere pleading standard; plaintiffs must prove they can satisfy each element of Rule 23 before a class should be certified, even if those considerations overlap with the merits.2The court also observed that “[c]ommonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury’,” meaning that all of their claims must depend upon a common contention that can be resolved “in one stroke.”3 The court noted in a footnote — as if the proposition were obvious — that if the class members must prove a point (e.g., the efficient market hypothesis in a securities class action) in order to obtain Rule 23(b)(3) certification, they “surely have to prove [it] again at trial in order to make out their case on the merits.”4 Although Dukes involved a nationwide class of female employees asserting claims under title VII, the case has been applied to many types of class actions.5 |