In a recent Westlaw Journal Expert Commentary Series, Professor Robin Effron discussed the impact of Wal-Mart v. Dukes on commonality in class action cases. The Supreme Court ultimately sided with the defendant, who was being sued by nearly 1.5 million current and former female employees for gender discrimination. The Court was split on the issue of Rule 23(a)(2); the majority maintaining that it was impossible to determine whether all members of the class truly had the same claim.
In her article, Professor Effron explores how this new interpretation of Rule 23(a)(2) will affect future class actions. She comments, "...the overall definition of "common question" within the resolvability framework remains cryptic. Lower courts will undoubtedly give greater attention to the threshold commonality standard in their certification decisions. The content of the standard, however, is far less certain."
Read the full article.