Friday, July 4, 2008
David G. Karro has just sent us a copy of his article, Common Sense about Common Claims, which was published in the first issue of volume 25 of the Hofstra Labor and Employment Law Journal. David critiques the class certification in Dukes v. Wal-Mart. One of the theses of the article is that "an important purpose of a certification hearing is to ensure class members will not be deprived of due process by being bound by an unfavorable judgment." More from the introduction:
[M]any courts, probably including both Wal-Mart courts, use class actions as a way of authorizing class counsel to enforce statutes the courts deem important. Yet, the Federal Rules of Civil Procedure cannot expand a plaintiff’s standing to challenge acts and practices. A plaintiff who does not represent a class has standing to ask the court to enjoin any practice or act that aggrieves him, and cannot broaden that standing by challenging acts or practices that do not aggrieve him, even if he represents people they do aggrieve. Class treatment, then, adds nothing to the ability of a litigant to enforce a statute.
Although the focus here is on the Wal-Mart decision, the Ninth Circuit did nothing that other courts don’t do; it just did it more ambitiously than anyone else. This, then, is an article about wide-spread misuse of Rule 23 in modern class actions, and the Wal-Mart decision is a spectacular example of what has gone wrong.
A very interesting read.