Thursday, July 7, 2011
BNA has published a fantastic analysis by John Coffee on Wal-Mart v. Dukes. Unfortunately, it is behind a pay wall: 'You Just Can't Get There From Here': A Primer on Wal-Mart v. Dukes.
If you can, I highly recommend reading this short article. Coffee makes two points I want to highlight. First, the unanimous holding that backpay is not sufficiently "incidental" to be considered part of a b(2) class action is a real problem for vindicating rights in employment class actions. This is because it will be very difficult to certify a b(3) class action for back pay in a large employment class action where the defendant claims that they are going to assert any defenses.
This brings us to Coffee's second important point is that the majority opinion states that a "Trial by Formula" (or statistical adjudication) approach will violate the Rules Enabling Act because it limits defendant's ability to assert otherwise available defenses. The procedure would modify or abridge a substantive right, which is forbidden under the REA. He considers the chances that this holding will affect securities class actions, and concludes that it will not unless the court reconsiders Basic v. Levinson. He also considers how this will affect mass tort cases and concludes that it may fortell a limitation on sampling but probably not based on the REA: "...consolidated individual mass tort cases are not governed by any special rule, and that consideration does not apply. Possibly, the Court may in the future find due process problems in use of sampling problems, but that day has not yet arrived."
Finally, Coffee provides a very good analysis of the treatment of commonality, which has also been addressed by our own Sergio Campos and now Allan Erbsen.