Following a record volume of amicus briefs and extensive mainstream media coverage recognizing it as a landmark-in-the-making, oral argument in Dukes v. Wal-Mart is finally here. Starting this morning at 10:00 a.m. EST, Wal-Mart’s appellate attorney, Theodore Boutros of Los Angeles-based Gibson Dunn & Crutcher, presented his oral argument (with frequent interruptions from the Justices, of course).

For those looking to the oral argument for indications of how the Court might rule, the transcript is available here.

For more background and briefing, see the blog sponsored by Goldstein, Howe & Russell, P.C. — bringing to bear the singular insights and analysis of attorneys from one of the country’s preeminent Supreme Court litigation specialty firms, with particularly trenchant and comprehensive coverage of Dukes.

For a brief analysis of this morning’s oral argument, see the Associated Press’ coverage here.

Along with Dukes v. Wal-Mart and AT&T v. Concepcion, class action practitioners are closely watching another key case during this term of the United States Supreme Court: Smith v. Bayer, 593 F.3d 716 (8th Cir.), cert. granted, 131 S. Ct. 61 (U.S. Sept. 28, 2010) (No. 09-1205), in which the Court will decide whether federal courts have the authority to enjoin state class actions. Specifically, the justices are considering whether the denial of class certification in a federal district court can be res judicata as to a class action in state court making the same substantive allegations, with a different named plaintiff.

Smith v. Bayer arises from respondent Bayer’s distribution of Baycol, a prescription cholesterol drug that gave rise to multi-district proceedings, including McCollins v. Bayer Corp., in which a West Virginia resident who had taken Baycol moved to certify a class under West Virginia’s consumer protection law. Certification was denied because individual questions predominated. Thereafter, a different named plaintiff (now the Smith v. Bayer class representative) moved for certification in West Virginia state court, asserting the same theory of liability as had been denied certification in McCollins v. Bayer. However, the McCollins court issued an injunction, holding that the attempted certification in West Virginia state court fell within the re-litigation exception to the Anti-Injunction Act. The court reasoned that the proposed class was identical to that in McCollins, West Virginia’s class certification rules are identical to Rule 23, and petitioners’ interests had been adequately represented in McCollins. The Eighth Circuit affirmed and the Supreme Court granted certiorari.

The petitioners argue that a federal court’s denial of class certification cannot collaterally estop a state class action, irrespective of whether the theory of liability is substantively identical and the basis for the denial of class certification was not unique to the prior named plaintiff. In turn, Bayer argues that there is no due process violation, as the petitioners can still bring individual actions, and are simply precluded from re-litigating the identical class certification issue.

The parties’ Supreme Court briefs are available here: Brief for Petitioners, Brief for Respondent, Supplemental Brief of Respondent, and Petitioners’ Reply Brief.

Following on a torrent of amicus submissions that have made Dukes v. Wal-Mart, 603 F.3d. 571 (9th Cir.) (en banc), cert granted, 131 S. Ct. 795 (Dec. 6, 2010) (No. 10-277) perhaps the most extensively briefed case in Supreme Court history, the case is now set for oral argument next Tuesday, March 29, 2011. In concert with AT&T v. Concepcion (which takes up the validity of class action waivers), Dukes represents an opportunity for the Roberts Court to remake the rules applicable to class actions in federal courts.

Apart from taking up several discrete issues broadly relevant to nearly all class actions, Dukes is effectively a Rorschach test on class actions: Corporate interests see Rule 23 as merely a device for “greedy” plaintiffs’ firms (is there any other type?) to blackmail companies into paying attorneys’ fees, while consumer and employee rights advocates contend that class actions are a necessary corrective in the free market system.

While oral argument can be an unreliable indicator of Supreme Court outcomes, there are some tendencies to look out for during next Tuesday’s session. For instance, do Justices presumed to be unsympathetic to class actions (notably Scalia, Thomas, and Alito) appear swayed by class action supporters’ market-based arguments? Is a radical remaking of class action rules harmonious with a conservative Justice’s preference for stability and predictability? Likewise, oral argument will occasionally reveal signs of ideological drift on the Court’s liberal wing. Justice Breyer, for instance, while known as a member of the progressive bloc of the Court, was at the forefront of the movement to deregulate airfares during the 1970s. Here, one should look for indications that a Justice presumed to be supportive of class actions harbors any skepticism toward the large and varied class in Dukes.

As with any case where big-picture procedural issues are at stake, it is likely that behind-the-scenes negotiations will result in complex majority opinions and concurrences in both Dukes and Concepcion that may be difficult to reconstruct from the Justices’ public statements at oral argument. The suspense should end by late spring, when decisions in both cases are expected to be issued.

With the proliferation of expensive cell phones, customers regularly buy insurance that will pay for a replacement phone in the event of loss, theft, or destruction, which typically includes a deductable. In Cole v. Asurion Corp., No. 06-6649 (C.D. Cal. filed Oct. 18, 2006), the plaintiff alleged that, as a result of a change in her cell phone insurance carrier, her deductable suddenly increased from $35 to $110. Her complaint included claims under California’s consumer protection statutes as well as common law claims for misrepresentation, breach of contract, and unjust enrichment. Significantly, in addition to alleging affirmative misrepresentations, the plaintiff also alleged material omissions which, if established, give rise to a class-wide presumption of reliance, obviating the most common and potent argument against class certification: that common questions of law or fact do not predominate.

Defendants made the familiar argument that variations in particular representations made to consumers precluded class certification altogether. Rejecting the defendants’ argument, the court granted certification on the omission-based theory of liability. Cole v. Asurion Corporation, 267 F.R.D. 322 (C.D. Cal. 2010). In so ruling, Central District Judge Phillip S. Gutierrez reinforced the trend of distinguishing misrepresentation- and omission-based theories of class-wide liability, and enforcing the presumption of reliance that attaches to material omissions. See, e.g., Wolin v. Jaguar Land Rover North America, LLC, 617 F.3d 1168 (9th Cir. 2010) (reversing denial of certification where district court abused discretion; common questions predominated as to defendant’s duty to disclose under consumer protection statutes).