Few doubt that Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), profoundly changed the litigation landscape. But most misunderstand why. The Court’s rejection of a sprawling class action, which encompassed 1.5 million class members working in 3,500 stores across all 50 states, was hardly unexpected. The Court’s new commonality standard, which requires plaintiffs to identify a common question whose answer can significantly resolve the litigation, will downsize class actions in size and scope, but this was already occurring in most circuits by virtue of the other requirements of Federal Rule of Civil Procedure 23(a) (e.g., typicality and adequacy of representation).
The real impact of Wal-Mart lies in its two other holdings: (1) that individualized money damages cannot be awarded in a Rule 23(b)(2) class action for injunctive or declaratory relief, and (2) that affirmative defenses in a class action require individualized hearings and cannot be resolved by a sampling procedure. These rulings could eclipse the significance of class litigation in many contexts and will certainly alter the tactics and incentives of the parties.
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