Much has been already said about the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). From its clarification of commonality to its implicit recognition of a plaintiff’s burden of proof at the certification stage, counsel, commentators and courts all acknowledge that Wal-Mart significantly altered the class action landscape. For an overview of the Supreme Court’s holding in Wal-Mart, click here.
The true legacy of Wal-Mart, however, is only now being written by the lower courts whose task it is to apply the decision and to determine how, if at all, prior precedent can be harmonized. The challenge is significant because the case forces a reevaluation of concepts that rarely received the type of critical analysis that is now required.
Perhaps Wal-Mart’s most significant—and most challenging—contribution to class action analysis is its treatment of commonality. According to the Court, plaintiffs must do more than simply identify a common question. They must now show that the common question or questions can “generate common answers apt to drive the resolution of the litigation.” Wal-Mart, 131 S. Ct. at 2551 (quoting R. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L. Rev. 97, 131-132 (2009)).
The recent decision in Powell v. Tosh, 2011 WL 4862401 (W.D. Ky. Oct. 13, 2011)—which was briefed before, but decided after Wal-Mart - illustrates the challenges that courts now face in applying the new commonality standard.
To read the full article, click here.
