Interpreting Dukes: 2012 in Review

While many predicted that 2012 would be the year in which interpretations of the U.S. Supreme Court’s ruling in Dukes v. Wal-Mart (131 S. Ct. 2541 (2011)) would effectively spell the end of class actions, this year has instead produced numerous pro-class judicial decisions, despite the more rigorous standards imposed by Dukes.

At the year’s outset, the Seventh Circuit affirmed class certification of wage and hour claims in a decision that provided considerable guidance as to the Dukes commonality requirement. In Ross v. Charter One, No. 10-3848 (7th Cir. Jan. 27, 2012), the Seventh Circuit found that Dukes did not require reversal of class certification, because the plaintiffs had shown sufficient evidence of classwide employment policies relating to unpaid overtime. Also in January, in Winfield v. Citibank, No. 10-7304 (S.D.N.Y. Jan. 27, 2012), the court granted conditional certification. In so ruling, New York’s Southern District rejected the application of Dukes v. Wal-Mart to motions for conditional certification under the FLSA. Similarly, in Myles v. Prosperity Mortgage Co., No. 11-01234 (D. Md. May 31, 2012), conditional FLSA certification was granted in an action alleging misclassification, with the express holding that Dukes is inapplicable at the certification stage of an FLSA action.

In addition to finding the post-Dukes defeat of class certification more difficult than expected, defendants also found themselves frequently rebuffed when attempting to decertify a previously certified class in light of Dukes. For instance, in Driver v. AppleIllinois, No. 06-6149 (N.D. Ill. Mar. 2, 2012), although the defendant argued that Dukes required the decertification of a wage and hour class, the court distinguished Dukes because class treatment in Dukes would have required the assessment of numerous subjective employment decisions, whereas class treatment in Driver was found to solely entail “strictly objective” issues of law and fact. Likewise, in Lyons v. Citizens Fin. Grp., No. 11-11187 (D. Mass. Nov. 9, 2012), the trial court responded to the First Circuit’s request that its certification ruling be revisited in light of Dukes by affirming its earlier certification of a class alleging misclassification and non-payment of overtime. And in California’s Northern District, in Ellis v. Costco, No. 04-3341 (N.D. Cal. Sept. 25, 2012), the court certified a class and meticulously distinguished the Title VII claims in that case from the far larger class that had been proposed in Dukes. This broader, plaintiff-friendly trend continued, as California’s Southern District narrowly interpreted Dukes by granting certification in Johns v. Bayer Corp., 09-1935 (S.D. Cal. Feb. 3, 2012).

Even the putatively conservative Seventh Circuit, in the person of Judge Richard Posner, participated in this trend. Early in 2012, in McReynolds v. Merrill Lynch, 672 F.3d 482 (7th Cir. 2012), Posner cautioned trial court judges to apply the same analytical rigor required by Dukes in denying class certification motions as they do to granting them. Later, in Butler v. Sears, Roebuck & Co., Nos. 11-8029, 12-8030 (7th Cir. Nov. 13, 2012), Posner set out to “clarify the concept of ‘predominance’ in class action litigation” in light of Dukes, and in so doing established analysis that, while more rigorous than in the pre-Dukes era, is hardly insurmountable for plaintiffs. And within the influential Second Circuit, in Chen-Oster v. Goldman Sachs, No. 10-6950 (S.D.N.Y. Jul. 17, 2012), the court rebuffed the defendant’s motion to strike class allegations, largely rejecting the defendant’s Dukes-based analysis.

Finally, in the ultimate testament to the post-Dukes vitality of class actions, Dukes itself was re-filed, with a streamlined class definition, in late 2011. Throughout 2012, Wal-Mart pursued a motion to dismiss, which was denied by Judge Charles Breyer in September. Dukes v. Wal-Mart, No. 01-2252, Dkt. No. 812 (N.D. Cal. Sept., 21, 2012) (Order Denying Motion to Dismiss). Thus, Dukes v. Wal-Mart, filed more than a decade ago, remains pending in California’s Northern District, having survived its own landmark U.S. Supreme Court ruling.