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 wont, I took a lot of notes, and here’s a quick summary of them.

Oddball Cases. The opening presentation, by Professor Suja Thomas, focused on the Supreme Court’s alleged predilection for deciding "oddball" cases, which Professor Thomas thinks make for less-than-ideal … Continue Reading

I’ve had an exhausting (but very fulfilling) US travel week.  As a result, I have not yet gotten together my notes on DePaul’s Symposium on Class Action Rollback.  My apologies; I will try to have a post on that later this week or early next.  

Meanwhile, as a peace offering, please accept this slide deck from my first presentation at the Symposium. I think it gives a flavor for my remarks.  … Continue Reading

Six months after the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, courts are still working out how best to apply the newly-clarified standard of commonality. This week, the Seventh Circuit offered some further guidance.

In Jamie S. v. Milwaukee Public Schools, the plaintiffs–seven disabled public-school students–challenged Milwaukee’s implementation of the Individuals with Disabilities Education Act.  The trial court denied certification, but allowed the plaintiffs to amend their complaint. It then certified the amended class proposal, and proceeded to a bench trial, where it found various violations of the IDEA, and ordered a complex, court-monitored remedial … Continue Reading

Lexblog TV did a brief interview-by-Skype with yours truly on Wal-Mart Stores, Inc. v. Dukes and AT&T Mobility v. Concepcion.  If my (admittedly poor) embedding skills are working you should be able to see it below.  If not, I’ve linked it here.  

I’d call this one shameless self-promotion, but frankly, I’m fairly shamed.  After watching it, I’m resolving to (1) just stare at the webcam the next time, and (2) get back to the gym.… Continue Reading

 This was a busy year for class-action jurisprudence. Clearly, most of the Supreme Court cases had some effect on class action practice. But the district and appellate courts also rendered a host of rulings this year that significantly affect class-action practice. Despite what a number of academics and plaintiffs’ lawyers have claimed, the class action is not dead.  That said, it’s probably true, to quote plaintiff’s lawyer Daniel Girard, that while the "death of the class action" is overstated, the "Golden Age of the private attorney-general" is over. There were so many interesting opinions in the past year, … Continue Reading

One of the key issues that many (including me) assumed would be resolve in Wal-Mart v. Dukes was the question of what kind of Daubert inquiry would be necessary at the class certification stage.

The 1993 case Daubert v Merrell Dow Pharmaceuticals, Inc., involved a challenge to the longstanding "general acceptance" test for scientific evidence articulated by the D.C. Circuit Court of Appeals in Frye v. United States. The litigation in Daubert concerned infants suffering from birth defects that allegedly resulting from their mothers’ use of the anti nausea drug Bendectin. After extensive pretrial discovery, Merrell Dow … Continue Reading

Today, the Supreme Court issued its much-anticipated opinion in Wal-Mart v. Dukes.

For those who like to skip ahead to the end to figure out whether their side won, the Court ruled in favor of Wal-Mart. That said, the real winner was the late Professor Richard Nagareda, whose articles on commonality clearly influenced Justice Scalia’s majority opinion.

In ruling for Wal-Mart, the Court issued two holdings: it held (5-4) that the plaintiffs had not met their burden on proving commonality, and (unanimously) that the plaintiffs could not certify a class for money damages under Rule 23(b)(2).

Now, what does … Continue Reading