As the first anniversary of the U.S. Supreme Court’s June 20, 2011, landmark class action decision in Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541, approaches, a smattering of federal district court decisions suggest that judges are carefully parsing that opinion and still certifying class actions. Although it is far too early to project any definitive assessments, some melodramatic pronouncements of the death of class litigation in Dukes‘ wake seem premature.
The chief concern in Dukes‘ aftermath focused on the Court’s reassessment of the appropriate standard for satisfaction of the Fed. R. Civ. P. 23(a)(2) threshold commonality requirement. In determining whether a class of female Wal-Mart employees had sufficiently alleged classwide discrimination under Title VII, the Court summarized the commonality requirement as necessitating that the plaintiffs demonstrate that the class members had suffered the same injury.
The Court indicated that this did not mean that all the class members had suffered a violation of the same provision of law. Rather, “[t]heir claims must depend upon a common contention — for example, the assertion of discriminatory bias on the part of the same supervisor. The common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” 131 S. Ct. at 2551.
Critics swiftly opined that the Court had ratcheted up and imposed a more demanding commonality requirement, essentially reading Rule 23(b)(3)’s predominance requirement back into Rule 23(a). A chorus of Cassandras predicted that this higher threshold commonality requirement effectively would kill off attempts to certify not only Rule 23(b)(3) class actions, but Rule 23(b)(1) and (b)(2) classes as well, which do not require a finding of predominance of common questions of law or fact.
POST-’DUKES’ CLASS CERTIFICATIONS
Assessing Dukes’ impact after one year requires a high degree of caution, because there are few reported certification decisions citing the Court’s opinion. In addition, it is impossible to ascertain the true extent of Dukes‘ impact because any number of certification decisions remain unpublished. Therefore, a larger body of reported case law is required realistically to assess Dukes‘ influence on class certification.
Nonetheless, two decisions from the Southern District of New York illustrate how that court has approached the Dukes decision. The most recent, Stinson v. City of New York, 2012 WL 1450553 (S.D.N.Y. April 23, 2012), should inspire every New Yorker who has ever received a parking ticket. Aggrieved New Yorkers filed this class action against the city of New York, the New York City Police Department and Police Commissioner Raymond Kelly. The complaint alleged that the defendants implemented and sanctioned a policy, practice and custom of issuing unconstitutional summons in violation of 42 U.S.C. 1983, and the First, Fourth, Fifth, Eighth and 14th amendments. The plaintiffs alleged that police issued summons without probable cause in order to meet minimum quota requirements, and punished officers who issued fewer summons and rewarded those who met their quotas.
The plaintiffs sought certification of a Rule 23(b)(2) injunctive class and a Rule 23(b)(3) compensatory and punitive damage class. The district court granted certification, noting that “[i]n addressing Rule 23(a)’s commonality requirement particular attention must be paid to the Supreme Court’s recent decision in Wal-Mart Stores, Inc. v. Dukes.” After reviewing that decision’s commonality standard, the court held that the proposed class satisfied Rule 23(a)(2) commonality.
In reaching this conclusion, the district court indicated that, unlike in Dukes, in which the plaintiffs alleged a corporate policy of discretion to local managers and corporate officers hostile to the advancement of women, the plaintiffs in Stinson had alleged a specific policy and practice promulgated by the defendants in which New York police officers issued summons without probable cause in order to meet a summons quota. The district court concluded that, as such, “the Supreme Court’s holding in Dukes supports a finding that Rule 23(a)’s commonality element has been established in this case.”
In another Southern District of New York case relying on Dukes, female employees of Goldman Sachs won a partial class certification victory. See Chen-Oster v. Goldman, Sachs & Co., 2012 WL 205875 (S.D.N.Y. Jan. 19, 2012). This class of women alleged gender discrimination, in violation of Title VII, 42 U.S.C. 2000e, and New York human rights law. They sought certification of Rule 23(b)(2) and (b)(3) classes. In an interesting pre-emptive procedural maneuver, the defendants moved to strike the class allegations in light of the Wal-Mart decision.
The court denied the defendants’ motion to strike, essentially ruling that a motion to strike class allegations was an inappropriate procedural means to challenge class certification. The court suggested that this end-run would require the court to make assessments similar to a class certification decision, and thus a motion to strike was both duplicative and premature.
Having concluded that a motion to strike class allegations was impermissible, the court nonetheless previewed several opinions about whether the Goldman Sachs women might be able to satisfy class certification requirements. With regard to commonality, the court suggested that the Goldman Sachs plaintiffs had identified a number of specific employment practices by the defendants, including its review process, forced quartile rankings, and “tap on the shoulder” system for promotion. The court noted that it was unclear from the pleadings alone the extent to which any of these factors contributed to a common mode of exercising discretion by Goldman Sachs managers. However, the court indicated that, with further discovery, the plaintiffs might be able to show that the combination of some or all of these practices meet the Rule 23(a)(2) commonality requirement, “even in light of the gloss provided by Dukes.”
And in California, where a federal court gave us the original Wal-Mart litigation, two district court decisions have not found the Dukes commonality requirement to be an impenetrable obstacle to class certification. See Oster v. Lightbourne, 2012 WL 685808 (N.D. Calif. March 2, 2012) and In re Google AdWords Litig., 2012 WL 28068 (N.D. Calif. 2012). In Oster, the plaintiffs moved for class certification under rules 23(a) and (b)(2), challenging two provisions of California law mandating reductions to the state’s In-Home Support Services for elderly and disabled persons. The defendants opposed class certification to a subclass of future claimants, contending this class violated the Dukes commonality requirement.
The district court concluded otherwise, holding that there was no question that California law instituted a 20 percent reduction in hours and the fact that recipients might request a restoration of hours did not destroy the commonality of the injury. In addition, the court concluded that the restoration application process did not afford discretion to social workers to restore hours, and therefore the plaintiffs had demonstrated commonality consistent with Dukes.
Finally, in the Google AdWords litigation, the plaintiffs sought certification of a Rule 23(b)(3) class alleging that the defendant engaged in deceptive advertising and unfair and unlawful business practices involving Google AdWords. The court held that Dukes commonality was satisfied because the plaintiffs’ question centered on whether Google’s alleged omissions were misleading to a reasonable AdWords customer, while the defendant’s question centered on whether customers were entitled to restitution. “In the court’s opinion, both parties’ proposed questions are central to and will drive the litigation.…Because plaintiffs present a valid common question, commonality is satisfied.” Nonetheless, the court declined to certify the class, finding that individualized issues relating to restitution defeated the Rule 23(b)(3) predominance requirement for certification.
Linda S. Mullenix holds the Morris and Rita Atlas Chair in Advocacy at the University of Texas School of Law. She is the author of Leading Cases in Civil Procedure(2d ed. 2012) and Mass Tort Litigation(2d ed. 2008).