Rule 23(b)(3) of the Federal Rules of Civil Procedure is at the heart of the most recent heated debate among the justices of the U.S. Supreme Court. On June 20, 2011, the Supreme Court handed down its landmark class certification decision in Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011), which was widely thought would severely curtail the use of the class-action vehicle in federal cases as a result of its perceived expansion of the Rule 23(a)(2) commonality requirement. Almost two years later, the Supreme Court has clarified and built upon its Dukes decision in two opinions handed down within a month of each other: Amgen v. Connecticut Retirement Plans and Trust Funds, No. 11-1085, 133 S Ct. 1184 (Feb. 27, 2013) and Comcast v. Caroline Behrend, No. 11-864, 133 S. Ct. 1426 (March 27, 2013). The tension among the justices on this issue has led to a very narrowly carved path for plaintiffs to seek certification under Rule 23(b)(3), which threatens to curtail, if not completely foreclose, Rule 23(b)(3) class actions.
‘Dukes’
Presented with what it unanimously described as "one of the most expansive class actions ever," consisting of about 1.5 million plaintiffs, the U.S. Supreme Court considered whether the certification of the class of current and former female employees of Wal-Mart, the nation’s largest private employer, was consistent with Rules 23(a)(2) and 23(b)(2) of the Federal Rules of Civil Procedure. Dukes, 131 S. Ct. at 2547.
