Lewis WienerSutherland, Asbill & Brennan LLP

Washington, DC

Class Actions After Dukes:A Whole New World, or

Same Song, Different Verse?

Christopher WillisBallard Spahr LLP

Atlanta, GA

Three Things That Don't Go Together

• "Jumbo Shrimp"

• "Near Miss"

• "Class Action Fairness"

Why Care About Class Actions After Concepcion?

• Continued resistance to class action waivers in California (Sanchez v. Valencia Holding Co., Cal . App. 2d Dist. Oct. 24, 2011)

• Arbitration Fairness Act

• CFPB "study" of consumer arbitration

• Euphoria may be short lived

What Dukes Means

• Plaintiff has the burden of proof, and examining the merits is permissible at the certification stage

• Heightened standard for commonality

• Incidental monetary relief under Rule 23(b)(2)

• Likely application of Daubert at class certification stage

• No trial by formula/statistical sampling

The Plaintiff's Burden of Proof

• Class certification requires evidentiary proof of elements of Rule 23

• Plaintiff cannot rely on pleadings alone, and has the burden of persuasion under Rule 23

• Merits issues are not “off limits”

• Court must evaluate evidence and make findings of fact supporting certification

The New Commonality Standard

• Common issues must show that claims can be proven by collective evidence

• Allegation of common harm, assertion of common legal issues, or factual themes, are not sufficient

• Dukes’ commonality analysis very similar to predominance standard under Rule 23(b)(3) in some circuits

• Now, same stringent standard applies in Rule 23(b)(1) and (b)(2) cases

Rule 23(b)(2): Injunctive and Declaratory Relief Only

• Distinction between 23(b)(2) and 23(b)(3)

• Prior to Dukes, most circuits had held that “equitable” monetary relief could be pursued under Rule 23(b)(2) – like back pay or restitution

• Dukes held that Rule 23(b)(2) permits only classwide injunctive and declaratory relief, not other “equitable” relief

• Plaintiffs cannot use Rule 23(b)(2) to recover damages disguised as “restitution” or “disgorgement”

Daubert at Class Certification

• Junk is junk

• 9th Cir refused to apply Daubert.

• Supreme Court holding suggests the same standard applies at class certification stage as in merits analysis

Sampling is Disapproved• No trial by formula

• What evidence would be required of a plaintiff pursuing an individual cause of action; why should anything less be required in a class proceeding

• A class cannot be certified on the premise that the defendant will not be entitled to litigate its defenses to individual claims

Take-Aways From Dukes and Other Cases

• Greater clarity about evidentiary burden to sustain certification

• Confirmation that Rule 23 is a procedural rule only

• Certain avenues for “masking” individual issues are cut off, but others remain

• Will state courts follow Dukes?

• Common issues still rule the day