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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Tag Archives: Dukes v. Wal-Mart

Klonoff on Rule 23(b)(1)

Posted in Certification

Rule 23(b)(1) is the forgotten stepchild in Rule 23 jurisprudence. Rule 23(b)(3) gets attention because it’s where the money is. Rule 23(b)(2) is essential to civil rights groups seeking injunctions, and drew attention from plaintiffs’ lawyers seeking an end-run around what they viewed as Rule 23(b)(3)’s more stringent requirements. But case law on Rule 23(b)(1)(A)… Continue Reading

Is the New Group Action Bill Cause for Concern?

Posted in Strategy

 Last week, Senator Al Franken (D-Minn) proposed a bill that would partially reverse the Supreme Court’s opinion in Wal-Mart Stores, Inc. v. Dukes. According to Senator Franken’s press release, the Equal Opportunity Employment Restoration Act (good title) would add a section 4201 to 28 U.S.C.: Section 4201(a) creates a new judicial procedure – called “group actions”… Continue Reading

The Problem with Trial by Formula

Posted in Motions Practice

In Wal-Mart Stores, Inc. v. Dukes, Justice Scalia registered his disapproval of using statistics to litigate liability in a class action, writing The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex… Continue Reading

Cohesiveness and Commonality – MD v Perry

Posted in Certification

 In the wake of Wal-Mart Stores, Inc. v. Dukes, plaintiffs and trial courts are still trying to determine exactly how to apply the clarified commonality standard of Rule 23(a)(2), and the standard for injunctive relief under Rule 23(b)(2). The good news for defendants, as demonstrated in the new case M.D. v. Perry, 2012 U.S. App…. Continue Reading

Rhetoric – Oddball Cases and Slaughtered Hogs

Posted in Strategy

 At the DePaul symposium a few weeks back, Professor Suja Thomas argued that the Supreme Court should not take on "oddball" cases, because the outlying facts make for decisions that are too sweeping. (She’s made this argument before about Iqbal and Twombly, so you don’t have to wait for the DePaul Law Review’s Symposium Issue to get… Continue Reading

Notes from DePaul Class Action Symposium

Posted in Certification, Strategy

A few weeks ago, I had the distinct pleasure of participating in the DePaul Law Review’s 22d Annual Symposium: Class Action Rollback? Wal-Mart v. Dukes and the Future of Class Action Litigation. The Law Review staff assembled an impressive array of speakers, all thoughtful, all interesting, only one of whom spoke too fast.  As is my… Continue Reading