Yesterday was the long-anticipated oral argument in Wal-Mart v. Dukes.  I’ve attached a copy here.  Overall, the Justices were clearly prepared for the argument, although they–like almost everyone else–had trouble keeping all of the facts straight.  A few highlights:

  • Justices Ginsburg, Kagan, and Sotomayor took an early lead in questioning Ted Boutrous (who argued

Commonality is rarely the subject of much discussion in class certification. The plaintiff often treats it as a perfunctory hurdle, subsumed into the more difficult questions of predominance (under Rule 23(b)(3)) or cohesiveness (under Rule 23(b)(2)).  But, much like numerosity, commonality is a requirement that may reward careful scrutiny when a defendant opposes class certification.

One of the strongest justifications for class actions is that they address large social wrongs that would otherwise go unremedied. But can there be a wrong that is simply too large for a class action to handle it properly? Something truly huge, like apartheid or genocide.

Some plaintiffs’ lawyers, like Hausfeld LLP, say no.