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Common Answers for Class Certification

Richard A. Nagareda

Vanderbilt University Law School (Deceased)

August 20, 2010

Vanderbilt Law Review En Banc, Forthcoming
Vanderbilt Public Law Research Paper No. 10-33

This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification. Prior to Dukes, the federal appellate courts had been gravitating toward a consensus on the parameters for judicial rulings on class certification. Under this emerging consensus view, the court is obligated to determine – under a preponderance-of-the-evidence standard and with no preclusive effect on the merits – whether the pertinent requirements for class certification have been satisfied. But the court has no authority to conduct a free-floating inquiry into the plaintiffs’ likelihood of success on the merits, unrelated to a class certification requirement. Dukes unsettles this emerging consensus, positing that courts may not withhold class certification as long as plaintiffs put forward a triable case as to the existence of a common, class-wide course of misconduct by the defendant. Under this view, the court may not determine whether the alleged class-wide course of misconduct more likely than not exists – even for the limited purpose of ruling on class certification – for fear of intrusion into the role of the fact finder at trial.

This Essay first explains why Supreme Court review is warranted in Dukes, above and beyond the usual concern over splits among the federal appellate courts. The Essay then observes that Dukes is part of a larger category of cases in recent years that involve class certification disputes centered on aggregate proof – in Dukes, primarily an analysis of Wal-Mart’s hourly work force, said to reveal statistically significant differences in pay and promotions across male-female lines.

The bulk of the Essay spotlights the crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment). Drawing on illustrations from class certification decisions in securities fraud, antitrust, and RICO litigation, the Essay explains how confusion between class certification and summary judgment can lead to both judicial underreach (as in Dukes) and judicial overreach (as in some decisions from other circuits). Supreme Court reversal in Dukes would lend clarity and consistency to the law of class certification, but in a way that would not cut uniformly for or against either plaintiffs or defendants across the gamut of civil law.

Number of Pages in PDF File: 20

Keywords: aggregate proof, antitrust, class action, class certification, Dukes, employment discrimination, fraud on the market, pattern or practice of discrimination, proximate cause, RICO, securities fraud, sex discrimination, Title VII, Wal-Mart

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Date posted: August 23, 2010  

Suggested Citation

Nagareda, Richard A., Common Answers for Class Certification (August 20, 2010). Vanderbilt Law Review En Banc, Forthcoming; Vanderbilt Public Law Research Paper No. 10-33. Available at SSRN: https://ssrn.com/abstract=1662620

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Richard Allen Nagareda (Contact Author)
Vanderbilt University Law School (Deceased)
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