It’s a busy week for me, so here’s just a brief rundown of two opinions vacated and remanded from the US Supreme Court:
RBS Citizens NA v. Ross (7th Cir. 2012). (More here.) The Seventh Circuit affirmed certification of a wage-and-hour case, despite what it conceded was a less-than-optimal order certifying the class. RBS appealed to the Supreme Court to ascertain how the certification fit in with the Dukes commonality standard. The Supreme Court vacated and remanded the case in light of its opinion in Comcast Corp. v. Behrend.
Whirlpool Inc. v. Glazer (6th Cir. 2012). The Sixth Circuit affirmed certification, holding that the district court did not have to investigate proximate cause of moldiness, and that “unharmed” class members might have a viable common overpayment theory. Whirlpool appealed to the Supreme Court seeking clarification on the role of the merits inquiry in certification. Like with Ross, the Supreme Court vacated and remanded in light of Behrend.
Now it’s usually difficult to pin down the Court’s exact position in cases like these, since it might think Behrend has a direct bearing on these cases, or it might just be clearing its docket. But at this point it is certainly safe to say that Behrend’s reinforcement of the predominance standard is going to have an effect on the certification debate in 2013.