Dukes v. Wal-Mart: Remaking the Familiar Merits-Certification Divide in Class Actions

It cannot be disputed that the eventual Dukes decision will remake the rules for federal district courts’ consideration of motions for class certification. And in light of the state courts’ practice of regularly consulting Rule 23 jurisprudence, Dukes will likely be a landmark class certification ruling from the Roberts Court. The Dukes decision is also likely to remake the strict divide between class certification analysis and merits analysis. Specifically, those who litigate class actions in federal court invariably invoke and confront the maxim set forth in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), that, in ruling on a motion for class certification, trial courts must only determine whether the requisite class certification elements (numerosity, predominance, and so forth) have been satisfied, not whether the class is likely to prevail on the merits. Plaintiffs’ counsel frequently underscore the holding in Eisen with citation to Blackie v. Barack, 524 F.2d. 891 (9th Cir.) (1975), for the proposition that the allegations in the complaint must be presumed true throughout the class certification analysis. However, in Dukes, the Ninth Circuit noted a tension between Eisen and Blackie and the largely unarticulated mandate in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982), requiring that trial courts conduct a “rigorous analysis” of each Rule 23 element.

While the Ninth Circuit’s opinion in Dukes purported its emphasis on the “rigorous analysis” standard to be a legal non-event, without circuit split implications, its rejection of the Blackie rule requiring that the operative class complaint’s allegations be presumed true has caused many observers to speculate that the Supreme Court will build on that and fashion a new rule for class certification jurisprudence interpreting the Falcon “rigorous analysis” requirement to entail a substantially greater consideration of the merits than that to which class action practitioners have grown accustomed over the first forty-plus years of Rule 23 jurisprudence.

Accordingly, whether the future of trial courts’ consideration of class certification motions will involve a more probing assessment of the merits is undoubtedly one of, if not the, most watched issues in connection with the Dukes case.