Perhaps the most ominous prediction that accompanied the Supreme Court’s Wal-Mart v. Dukes decision was that a wave of decertifications would nullify many, if not most, already-certified actions. Yet more than a year after Dukes, that prediction has not come to pass, a fact underscored by a recent decision from California’s Central District. See Kingsbury v. U.S. Greenfiber, LLC, No. 08-CV-00151 (C.D. Cal. Jul. 2, 2012) (order denying motion to reconsider order granting class certification) (available here). In Kingsbury, the plaintiff successfully moved for certification in May of 2011, a ruling that was upheld with the court’s denial of the defendant’s motion to reconsider. Id.
The action was filed in 2008 by a group of homeowners whose homes contained allegedly defective insulation that was prone to water retention and mold contamination. See Order at 1-2. The plaintiffs claim that the defendant failed to inform them of the mold risk. Id. In attempting to reverse the 2011 class certification ruling, the defendant argued that decertification was required under both Dukes and the Supreme Court’s other much-discussed 2011 class action decision, AT&T v. Concepcion, and that Concepcion also supported the defendant’s contention that all disputes with the plaintiffs should be resolved in arbitration. See Order at 2-3. Judge A. Howard Matz rejected both arguments. Id. at 10.
As to the Concepcion-based arbitration argument, Judge Matz found that the defendant had waived any entitlement to arbitration, “because even before [Concepcion] was decided, [the defendant] was well aware of its right to arbitrate. By engaging in extensive litigation for almost four years, [the defendant] waived its arbitration rights.” Order at 3.
Addressing the defendant’s argument that common questions of law or fact did not predominate in light of the new standard presented in Dukes, the court held that “Dukes does not alter the Court’s decision to certify a class,” because “there are numerous common contentions that are central to the resolution . . . of each class member’s claim.” Order at 10. Judge Matz went on to enumerate the predominant common questions, and in doing so provided useful guidance for plaintiffs and counsel who confront perhaps the most recurring of class action defenses where commonality is dispositive to certification. The common questions included: whether the defendant’s purchase agreement is deceptive under California’s Unfair Competition Law; whether the at-issue insulation is prone to water retention and mold; whether a reasonable consumer would expect disclosure of these risks; whether the presence of the at-issue insulation affects home values; and whether the defendant concealed material information about the insulation. Id. at 10.
Kingsbury is far from an outlier among cases where defendants have invoked Dukes in an attempt to decertify misrepresentation and non-disclosure claims. See, e.g., Johnson v. General Mills, Inc., 276 F.R.D. 519 (C.D. Cal. 2011) (Carney, J.) (finding predominance of common questions, notwithstanding Dukes); Jermyn v. Best Buy Stores, Inc., 276 F.R.D. 167 (S.D.N.Y. 2011) (McMahon, J.) (same). More notable are the instances where decertification motions were denied in Dukes-like employment discrimination cases or other circumstances with a similarly subjective, individualized element. See, e.g., United States of America v. City of New York, 276 F.R.D. 22 (E.D.N.Y. 2011) (Garaufis, J.) (denying decertification motion in employment discrimination case, notwithstanding Dukes); DL v. District of Columbia, 277 F.R.D. 38 (D.D.C. 2011) (Lamberth, J.) (denying decertification motion in Individuals with Disabilities and Education Act action and distinguishing Dukes). The latter cases further undermine the myth that few certifications would survive post-Dukes.