A Year After Wal-Mart, Class Actions Not Dead Yet

Abstract

Commentary and analysis on case law developments in the lower federal courts, approximately one year after the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (June 20, 2011). In the wake of the Court’s Wal-Mart decision, several melodramatic commentators suggested that the Court’s decision signaled a death-knell for class actions, in light of the Court’s tightening the standard for class certification threshold requirement for proving commonality under Rule 23(a)(2). The negative commentary on the Wal-Mart decision further suggested that the Court’s decision would signal a set-back for future Title VII gender-based class employment discrimination litigation.

This analysis of emerging lower court cases suggests that any pronouncements of the death of class litigation in the wake of the Wal-Mart decision seem premature. Instead, among the few courts that have evaluated the newly articulated commonality standards, courts have certified class actions holding that the class proponents were able to satisfy those standards. In addition, in two California federal courts – where the Wal-Mart litigation arose – have not found the Wal-Mart commonality requirement to be an impenetrable barrier to class certification.