The Third Circuit Court of Appeals has taken a moderate approach to the predominance analysis required by the U.S. Supreme Court’s ruling in Dukes v. Wal-Mart, 131 S. Ct. 2541 (2011). See Sullivan v. DB Investments, No. 08-2784 (3rd Cir. Dec. 20, 2011) (order affirming class certification for settlement purposes) (available here). In an en banc decision, the Sullivan majority interpreted Dukes as holding that “the focus is on whether the defendant’s conduct was common as to all of the class members, not on whether each plaintiff has a ‘colorable’ claim.” Id. at 42.
Two of the panel’s nine judges dissented, arguing that the majority’s relaxed commonality standard resulted in the improper certification of a nationwide class that “includes people who have no legal claim whatsoever.” Id. at 1 (Jordan, J., dissenting). The dissenters claim that Dukes expressly requires classwide common questions and answers, which necessarily entail a finding that each class member has a colorable legal claim. Id. at 10 (Jordan, J., dissenting) (discussing Dukes, 131 S. Ct. 2551). However, the dissenters do not acknowledge or confront the fact that class members who are ultimately found to lack a viable claim may nevertheless share common questions with the rest of the class.
The majority addressed the dissent’s contentions and affirmed its holding as consistent with Dukes:
In Dukes, the Court held that commonality and predominance are defeated when it cannot be said that there was a common course of conduct in which the defendant engaged with respect to each individual. But commonality is satisfied where common questions generate common answers “apt to drive the resolution of the litigation.” Dukes, 131 S. Ct. at 2551. That is exactly what is presented here, for the answers to questions about De Beers’s alleged misconduct and the harm it caused would be common as to all of the class members, and would thus inform the resolution of the litigation if it were not being settled.
Id. at 42.
Because the disagreement between the majority and dissent is likely to play out in other trial and appellate courts, practitioners would do well to anticipate the dissent’s position and to note the majority’s compelling reasoning in response.