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A Paradigm Shift On Commonality


In this article, Brian Hill and Jonathan Kossak* discuss the Supreme Court's historic decision in Wal-Mart Stores Inc. v. Dukes, which is likely to have a significant impact on a variety of other types of class action cases, in particular consumer fraud actions. The Supreme Court's ruling, with its focus on the requirement under Federal Rule of Civil Procedure 23(a)(2) that there be "questions of law or fact common to the class," has, perhaps inadvertently, set a higher bar for plaintiffs at the class certification stage.

This subtle paradigm shift will likely have significant implications for plaintiffs seeking class certification in the consumer fraud context and beyond. Because reliance is often a key element that plaintiffs must prove in the consumer fraud context, there is always a tenuous balance between individual issues and common questions in such cases. Prior to Dukes, the commonality requirement did not involve an inquiry into that balance and was rarely a matter of dispute among opposing parties as defendants chose to save their most pointed arguments for issues that were not so "easily met." However, as Justice Ginsburg predicted, that strategy will likely change, with the commonality requirement becoming a tougher front in the battle for class action certification.

*Former Miller & Chevalier attorney