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Wal-Mart Stores v. Dukes: A Year of Substantial Influence

Friday, August 10, 2012

By John Beisner and Geoffrey M. Wyatt, Skadden, Arps, Slate, Meagher & Flom LLP

A year ago, the U.S. Supreme Court decided Wal-Mart Stores, Inc. v. Dukes1—one of its most detailed pronouncements on the meaning of Fed. R. Civ. P. 23, the rule governing class-action practice in federal courts, and the first ever to examine in detail the portion of that rule governing certification of claims seeking injunctive relief.

In Dukes, the Supreme Court reversed an en banc ruling of the U.S. Court of Appeals for the Ninth Circuit that gave the green light to a sprawling nationwide class action that encompassed 1.5 million female Wal-Mart employees. The plaintiffs had alleged discrimination and sought injunctive and declaratory relief as well as backpay, and the Ninth Circuit had affirmed certification of the class under Rule 23(b)(2), which allows class treatment of claims where “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”

In explaining its conclusion, the Court set forth several important propositions that have already broadly influenced class-action litigation. Specifically, it clarified that “Rule 23 does not set forth a mere pleading standard,” and the decision whether to certify a class requires a “rigorous analysis,” and imposes a burden on the movant to “affirmatively demonstrate his compliance with the Rule.”2 It also held that in its en banc decision, the Ninth Circuit had misapplied the commonality standard of Rule 23(a)(2), which requires that “there are questions of law or fact common to the class.”3 The Supreme Court explained that “[c]ommonality requires the plaintiff to demonstrate that the class members have suffered the same injury”—not “merely that they have all suffered a violation of the same provision of law.”4 Put simply, the Court explained, there must be “some glue holding the alleged reasons for all th[e allegedly discriminatory] decisions together,” such that “examination of all the class members' claims for relief will produce a common answer to the crucial question[.]”5 The Court explained that the proposed class fell far short of this standard given that the “crucial question” in each class member's case—i.e., “why I was disfavored?”—could not be resolved with a “common answer.” Rather, such a question entailed “millions of employment decisions” that destroyed any semblance of commonality.6

The Court also held that the Ninth Circuit's en banc decision misapplied the standard for certification under Rule 23(b)(2) in a number of respects. It began by explaining that the core prerequisite for (b)(2) treatment is the “indivisib[ility]” of the requested relief, be it injunctive or otherwise in nature.7 Noting the requests for backpay in the case were certain to involve individualized analysis, the Court concluded that they could not be certified under (b)(2).8 It further suggested that claims seeking monetary relief may never be appropriate under (b)(2), and certainly not “where … the monetary relief is not incidental to the injunctive or declaratory relief.”9 Finally, addressing the lower courts' efforts to circumnavigate this problem by reliance on a sample set of class members to prove liability and damages with respect to the entire class, the Court rejected such a “Trial by Formula” as contrary to the federal Rules Enabling Act, which “forbids interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right.’”10 Of particular concern to the Court was the fact that the proposed trial plan would have deprived Wal-Mart of its statutory defenses under Title VII.11 As the Court explained, “a class cannot be certified on the premise that [a defendant] will not be entitled to litigate its … defenses to individual claims.”12

Though much has already been written about the decision, the courts are still debating the significance of Dukes. Some have questioned its importance, suggesting that its holding will likely be limited to the facts of the case before it—the sui generis, titanic class comprising 1.5 million members13—or, more generously, to employment actions14 or actions seeking injunctive relief15 generally. As one federal district court put it, Dukes “did not change the law for all class action certifications. Instead, it provided guidance on how existing law should be applied to expansive, nationwide class actions.”16 Along similar lines, another court opined that Dukes “simply reflects the application of the long-standing rule that class members suffer a common injury.”17 But this is shaping up to be a fringe view. A significant majority of courts and commentators have been impressed with Dukes’s portent for the field, describing the case as a “landmark” decision18—even “the most important decision on the landscape of class certification law”19—and predicting that it “will make it harder to certify all class actions.”20

So far the majority view appears to have it right. In the application of Rule 23's specific procedural requirements, courts have suggested an effect for Dukes on many of the requirements for class certification—far beyond the commonality and (b)(2) provisions that were central to the Dukes analysis. And it has even made an impact beyond the federal class-action arena.

This article is by no means a comprehensive review. Hundreds of decisions have already cited Dukes. Instead, it covers a sampling of these decisions in an attempt to provide a broad but detailed overview of this one decision's impact on the class-action universe.

The Higher Standard for Certification in Class Actions

Most prominently, Dukes has changed the way courts approach class-certification requirements. These changes, of course, extend to the particular certification requirements addressed in that case—commonality and (b)(2) class actions—but have also had an impact on other class-certification considerations.21

Applying the Requirements—the ‘Rigorous Analysis.’

The Supreme Court long ago held that courts must undertake a “rigorous analysis” in deciding whether to certify a class.22 But this term has arguably been assigned a different meaning after Dukes, which emphasized that a truly rigorous analysis will usually require a court to look beyond pleadings and assess the evidence and merits of a case to decide whether a case could really be proven on a classwide basis—and that the “party seeking class certification must affirmatively demonstrate” this fact.23

As one commentator has pointed out, this part of Dukes means that it would now be error to indulge the old presumption in favor of class certification, and that doubts should no longer be resolved in favor of class certification.24 Most courts have reached the same conclusion. As one court noted, compliance with Rule 23 cannot be presumed even “notwithstanding Defendant's failure to file an opposition” to a motion for class certification.25 Another court explained that it could not “[s]imply adopt[] plaintiff's assumptions” that the evidence will apply uniformly to the class.26 And a third underscored the burden on the plaintiff to affirmatively demonstrate how the evidence in the case will enable class treatment by remarking that it is not sufficient for the plaintiff to “drop[] off” a “banker's box full of discovery materials” in support of class certification.27 Rather, the plaintiff must specifically identify relevant evidence in proving compliance with each and every requirement of Rule 23—even numerosity28—and a court must not “contort the requirements in order to certify.”29 If necessary, a court should hold an evidentiary hearing to test whether the plaintiff has really met its burden in demonstrating compliance with Rule 23's requirements.30

Dukes itself offered at least two concrete examples of how its rigorous analysis would change class certification as a practical matter going forward: the use of statistical evidence to overcome problems of individualized evidence; and the significance of affirmative defenses.31

For example, Dukes rejected the proposed use of statistical sampling to prove liability on a classwide basis, which had previously been permitted by at least some courts.32 It viewed the use of sampling in lieu of the individualized proceedings they would replace as incompatible with the Rules Enabling Act, which “forbids interpreting Rule 23 to ‘abridge, enlarge or modify any substantive right.’ ”33 In other words, at least as a general matter, the mere fact that a case is tried as a class action does not permit proof of a claim by different types of evidence than would be required to prove an individual claim in a traditional trial. Some courts have already followed this ruling in rejecting proffers of statistical proof intended to overcome individualized variations inherent in the class.34 These rulings demonstrate that, after Dukes, it will be harder to demonstrate that liability can be proven on a classwide basis. Although courts and commentators have suggested that aggregate or statistical proof might still be admissible to prove classwide damages,35 it is clear that litigants can no longer use statistics to attempt to paper over individualized issues on causation and the other elements of liability.

Relatedly, Dukes held that individualized defenses cannot be ignored in the certification analysis, stating that “a class cannot be certified on the premise that [the defendant] will not be entitled to litigate its statutory defenses to individual claims.”36 The Dukes decision tied this statement to its ruling on statistical proof, explaining that the proffered evidence would have stripped Wal-Mart of its defenses, and suggesting that such a proceeding would abridge or modify Wal-Mart's “substantive right[s].”37 This holding may add significant rigor to the certification inquiry, particularly in light of the prior “tradition[]” of according less weight to individualized affirmative defenses in the class-certification inquiry.38 Since Dukes, some courts have continued to tow the old line,39 but most courts have changed course.40 And state courts, which are not bound by the federal Rules Enabling Act (the law that animated the Dukes view on this issue), have nevertheless also followed this aspect of the ruling, finding the need to consider defenses in the class-certification analysis as rooted in due process.41

The bottom line is that Dukes has reversed any old presumption in favor of certification: after Dukes, it is clear that courts should search rigorously for reasons to deny class treatment and, only after finding none, consider certification.42


The relevance of standing to class certification is a source of disagreement among the federal courts of appeals. Some courts have held that a class cannot be certified if it contains members who would lack standing to bring individual suits43; others have concluded that standing should not be considered as long as the class representative has standing to sue.44

Dukes did not directly address standing, but it did note that some members of the class would lack standing to sue for injunctive relief since they were no longer employed by Wal-Mart and thus could not possibly enjoy any benefit from an injunction.45 At least two courts have taken this discussion in Dukes as a suggestion that a class must be “defined in such a way that anyone within it would have standing.”46 This reading of Dukes would weigh in favor of those courts that have held that absent-class-member standing is a prerequisite to class certification, but it remains to be seen whether courts that had rejected such a requirement prior to Dukes will read its brief discussion of standing in a similar light.47


Although it is not an explicit requirement of Rule 23, the ascertainability rule—that class membership is discernible by reference to objective (and objectively verifiable) criteria—has been accepted as an implicit requirement by most federal courts that have considered the issue.48 Once again, Dukes itself made no direct statements about ascertainability. But at least one court has demonstrated that Dukes’s “rigorous analysis” requirement could have a significant impact on ascertainability questions.

Specifically, in Stone v. Advance America,49 the plaintiffs sued check-cashing companies that provide payday loans, alleging that they had discriminated against a class of individuals who “principally spoke Spanish in the discussion or negotiations leading to the loan.”50 The court rejected the class as unascertainable. Citing Dukes’s instruction that courts consider the merits of a claim to the extent they overlap with class-certification requirements, the court explained that the evidence on record demonstrated that the “only way to determine if a specific customer principally spoke Spanish is to evaluate the particular transaction.”51 The court emphasized that the problem “raise[d] due process concerns” because the question whether a self-identifying class member actually “principally spoke Spanish” during a relevant transaction was a credibility matter that the defendant was entitled to test through cross-examination.52 This language in turn echoes the Supreme Court's admonition in Dukes that defendants must be entitled to raise individualized defenses where they apply.53 In short, Dukes suggests that greater scrutiny of certain class definitions may be appropriate where membership depends in any significant degree on self-identification.


Not surprisingly, courts and commentators have written much about the impact of Dukes on the commonality requirement of Rule 23(a)(2). Most agree that Dukes elevated the showing required to satisfy commonality.54 But courts are divided on the details, particularly over the character of the common question that a plaintiff must identify in order to support a bid for class certification. In particular, courts have disagreed over how central such a question must be to the claims at issue, as well as how specific it must be.

As to centrality, most courts have agreed that a common question must be one that is a “central” or “important” question—one at the “crux” of the case.55 These cases typically cite Dukes’s holding that a common question should be one whose determination “is central to the validity of each one of the claims in one stroke.”56 In Corwin v. Lawyers Title Ins. Co., for example, the plaintiff brought a putative class action against a title insurance company, claiming unjust enrichment, and alleging that the company overcharged her by failing to provide a discounted rate that must be granted when the purchaser of a title policy provides evidence that she had previously purchased other title insurance on the subject property.57 The district court denied the plaintiff's motion for class certification.58 In holding that the plaintiff had failed to demonstrate commonality, the court acknowledged that she had identified “questions common to the absent class members and the plaintiff that must be decided before liability is established,” but it nonetheless concluded that class treatment was inappropriate because “the critical inquiry without which liability cannot attach requires individualized determination.”59 Specifically, each class member would have to prove that there “was a previous title policy issued on the specific property in question,” a showing that would be “uniquely individualized.”60 Because the “critical” issue in the case was not a common one, commonality was not satisfied.

Nonetheless, other courts have disagreed, concluding that “commonality only requires a single significant question of law or fact,” and the question whether such issues are “crucial” to the claims of all class members “go[es] to predominance under Rule 23(b)(3), not to whether there are common issues under Rule 23(a)(2).”61

The latter view seems difficult to reconcile with the language of Dukes and would seemingly undo its holding if it were applied in cases seeking certification under Rule 23(b)(2). One way to reconcile this tension would be to conclude that the apparently heightened commonality analysis applied in Dukes was intended to apply in Rule 23(b)(2) cases only; and some courts and commentators have done so.62 Nevertheless, at least for now, the majority of courts appear to have accepted that the commonality requirement can only be satisfied by questions that go to the heart of the plaintiffs' claims.63

Courts also appear to have diverged in the level of specificity they have demanded in proffered common questions, although this issue is somewhat more difficult to measure given the natural variation in facts from one case to the next. For its part, Dukes suggested that commonality means something specific—“that the class members ‘have suffered the same injury’ ”—not merely that they “suffered a violation of the same provision of law.”64

As the U.S. Court of Appeals for the Seventh Circuit construed this language in Jamie S. v. Milwaukee Public Schools, for example, litigants must proffer more than “superficial common questions.”65 In Jamie S., the plaintiffs moved to certify a class seeking an injunction requiring a local school district and a Wisconsin state agency to provide services to children with special education needs under the Individuals with Disabilities Education Act (“IDEA”).66 The district court certified the class, but the Seventh Circuit reversed. Among other reasons, the Seventh Circuit explained that the district court had misapplied the commonality requirement. The plaintiffs' proffered common issue—whether “all potential class members have suffered as a result of [Milwaukee Public Schools's failure to ensure their Child Find rights under IDEA and Wisconsin law”—was nothing more than the “bottom-line liability question in any individual plaintiff's IDEA claim,” and thus too “superficial” to establish commonality under Dukes.67 Other courts have spoken similarly.68

But at least one court has suggested that abstract questions may suffice to show commonality, at least in Rule 23(b)(2) cases.69 So far, few others appear to have followed this view, and it is one that is at least arguably in tension with the language of Dukes—itself a Rule 23(b)(2) decision. Finally, a recent holding of the U.S. Court of Appeals for the Fifth Circuit suggests still a third approach, under which the degree of scrutiny of proffered common questions may vary based on the allegations at issue, meaning that a court should make a more demanding inquiry of “amorphous” claims or claims that otherwise strike it as implausible candidates for class treatment.70

23(b)(2) Classes

That Dukes has changed the law for (b)(2) class actions is also unsurprising and generally accepted. But as with the commonality standard, courts are still working out the details of (b)(2) classes after Dukes. In particular, courts have struggled over whether (and if so when) claims that could entail monetary relief remain certifiable under (b)(2), and have disagreed about precisely when injunctive relief is “indivisible,” as required for certification under (b)(2) according to Dukes.

Dukes arguably invited discord over whether and when monetary relief may be sought under (b)(2) by expressly reserving the issue. On the one hand, the decision noted a “possible reading” of (b)(2) that “does not authorize the class certification of monetary claims at all.”71 On the other hand, it seemed to embrace the analysis of the Fifth Circuit in Allison v. Citgo Petroleum Corp.72 that monetary claims might be certifiable under (b)(2) as long as they are purely “incidental” to injunctive or declaratory relief, such that “damages [would] flow directly from liability to the class as a whole.”73 Most decisions since Dukes have followed the latter reading,74 but some others have expressed “doubt[s]” that (b)(2) certification is appropriate even in cases where “monetary relief is incidental to declaratory and injunctive relief.”75 At least one court has posited a justification for such a view, though without deciding the issue. As the U.S. Court of Appeals for the Federal Circuit explained in Beer v. United States,76 because the prospect of monetary relief entails the possible deprivation of property, even claims for incidental monetary relief in (b)(2) class actions raise due-process concerns because of the lack of opt-out rights in such cases.77 And interestingly, the Beer plaintiffs—several Article III federal judges—took the position that, after Dukes, “monetary relief” can never “be reduced to ‘incidental’ status through a combination with a request for injunctive or declaratory relief.”78 Although the Beer decision has been vacated pending en banc review before the Federal Circuit,79 the issues it identifies are likely to be grist for further litigation over the question whether monetary relief is ever appropriate in (b)(2) class actions.

Courts have also exhibited some disagreement over when injunctive relief is truly “indivisible.” As Dukes put it, Rule 23(b)(2) “does not authorize class certification when each individual class member would be entitled to a different injunction.”80 Interpreting this aspect of Dukes, three courts of appeals have suggested that (b)(2) certification is inappropriate—even in a case seeking injunctive relief—where the proposed relief would establish a unitary administrative process that in turn would fashion individualized relief to each class member. In M.D. ex rel. Stukenberg v. Perry,81 for example, the Fifth Circuit concluded that a proposed injunction to establish “special expert panels to review the cases” in a class of individuals challenging the Texas foster-care system failed to state a claim for indivisible relief under Dukes.82 Although it acknowledged that the proposed panel itself would operate on a classwide basis, the court viewed the requested injunction as an attempt to circumvent Dukes’s rule and rejected it.83 The U.S. Court of Appeals for the Seventh Circuit reached a similar conclusion with respect to a putative class alleging a right to education services under the IDEA.84

But the courts do not necessarily agree on the application of this principle. For example, following logic similar to that of the Fifth and Seventh Circuits, the U.S. Court of Appeals for the Third Circuit recently affirmed denial of a class action in a medical-monitoring case, concluding among other things, that an indivisible injunction was not possible despite the proposal of an allegedly uniform monitoring remedy in light of the fact that it “would not be [possible] to prove the medical necessity of plaintiffs' proposed monitoring regime without further individual proceedings to consider class members' individual characteristic and medical histories and to weigh the benefits and safety of a medical monitoring program.”85

Indeed, for this reason, the Third Circuit noted its “skeptic[ism]” that medical-monitoring claims can ever be certified under (b)(2).86 But at least one court has suggested disagreement with this assessment, opining that such classes are certifiable, even if the proposed monitoring regime must actually make individualized assessments of fitness for monitoring, as long as the class is defined in such a way that allows a plaintiff to allege that most of its members are likely to need monitoring, and as long as a determination of medical necessity “is built into the program.”87

The tension in these decisions reveals that some courts may yet be receptive to creative “injunctive” remedies designed to facilitate class treatment by removing individualized issues from the court's domain and leaving them to later resolution by the proposed remedy. The burden on plaintiffs going forward will be to come up with such remedies, while the burden on defendants will be to attempt to show that such relief in reality would be “class-wide in name only.”88

23(b)(3) Classes

Dukes did not make any new law regarding the standard for certification under Rule 23(b)(3). But in its wake, courts have struggled to describe the role of the (b)(3) predominance requirement—i.e., that common issues predominate over individual issues—in light of the higher standard Dukes set for showing commonality. Some courts have at least implicitly suggested that the commonality and predominance requirements are now essentially identical, such that satisfaction of the commonality requirement itself shows predominance of common issues.89

More often courts have concluded that predominance still requires more than commonality. Thus, for example, in Pryor v. Aerotek Scientific, the court denied class treatment—despite finding that the plaintiffs had sufficiently alleged a uniform policy regarding overtime to satisfy the commonality requirement—because there was “considerable variation in the extent to which individual … employees were affected by” the policy.90 As the court explained, the predominance requirement is still “ ‘far more demanding’ than the commonality requirement,” and class treatment requires satisfaction of each.91 These holdings are in better keeping with the language of Rule 23, which enumerates commonality and predominance as separate (if related) requirements, as well as the history of the Rule's application, which had previously viewed predominance as a higher hurdle than commonality. They are also consistent with Dukes’s insistence that it had not performed a predominance analysis under the auspices of commonality,92 and its observation that Rule 23(b)(3) is reserved for “situations in which class-action treatment is not as clearly called for”—suggesting that higher scrutiny of such class actions as a general rule may be appropriate.93


Dukes said nothing about settlement, but courts have cited the higher standard for certification it set as a factor weighing in favor of approving class settlements. As one court explained, Dukes presents a new litigation risk for class plaintiffs—even in a case where they had prevailed on class certification prior to Dukes—because the decision “increase[s] the likelihood of unfavorable appellate review” of class-certification decisions.94 Another court agreed, citing Dukes in support of its belief that litigation of the class presented the “risk that Plaintiffs might not be able to maintain certification.”95

Other courts have noted the problems that the commonality requirement would pose to certification and have cited the agreement to settle itself as one way of meeting the requirement. One court found commonality satisfied based “upon the stipulation of the parties” regarding one of the core issues in the case.96 Another felt that “[s]ettlement” itself “provides an answer to the common issues raised by all class members, regardless of the specific type of injury” they may have sustained.97

Each of these holdings appears to be at odds with the Supreme Court's prior warning in Amchem Products v. Windsor that a settlement class is only proper if Rule 23's requirements—including commonality—are actually met.98 But this tension does not appear to have been explored yet by the courts. Thus, it remains to be seen whether Dukes will continue to facilitate class settlements as it apparently has done so far.


Finally, Dukes may also have an effect on the appellate standard of review. Although it is probably too early to tell from the cases themselves, Dean Erwin Chemerinsky of the University of California, Irvine, School of Law, viewed the analysis in Dukes as “difficult, if not impossible, to reconcile … with an abuse-of-discretion standard of review,” and asked whether “federal courts of appeal will copy this approach and offer little deference” to district-court class-certification rulings.99

This criticism may be overstated, since even the abuse-of-discretion standard entails plenary review of the legal standards applied,100 and the Dukes ruling rested heavily on its disagreement with the lower courts over the proper legal standard to apply under the commonality and (b)(2) prongs of the decision. Nevertheless, as the lower courts struggle to define all of Dukes’s many consequences on the standards governing class certification, it would hardly be a surprising development if (at least in the short term) a number of these decisions are reviewed less deferentially under the auspices of clarifying the proper legal standards governing class treatment.

Dukes's Influence Beyond Federal Class Actions

Although the weight of Dukes’s influence has been felt in the federal class action arena, it has extended (or threatened to extend) beyond that arena as well in a few ways that bear mention.

First, while Dukes only purported to construe federal law and procedure—rather than constitutional principles—a number of state courts have taken to its analysis in applying their own class-certification standards. To date, courts in California,101 Colorado,102 Connecticut,103 Delaware,104 Florida,105 Georgia,106 Illinois,107 Kansas,108 Kentucky,109 Louisiana,110 Missouri,111 Montana,112 New Jersey,113 North Carolina,114 Ohio,115 Pennsylvania,116 and Rhode Island117 have either expressly adopted Dukes’s reasoning as applicable to state standards, mentioned Dukes as persuasive authority, or else simply cited or attempted to distinguish Dukes as though its relevance to state law were self-evident. And at least one court has found an aspect of the Dukes ruling to be rooted in due process and thus binding on the states,118 despite Dukes’s own silence regarding that possibility.

Second, courts have failed to reach consensus on whether Dukes’s strict construction of the commonality requirement should apply in deciding whether to conditionally certify collective actions under the federal Fair Labor Standards Act. In grossly simple terms, collective actions are not unlike class actions in that they purport to assert claims on behalf of a group of individuals, but they bind only those who affirmatively opt in.119 Because concerns about notice are correspondingly diminished, collective actions have historically been easier to certify than class actions, but they too require some showing of the presence of some common issues—specifically, that the members of the collective action are “similarly situated.”120

Most courts have concluded that Dukes’s commonality analysis has little bearing on a conditional-certification analysis in an FLSA action, explaining that the “standard for a … collective action is initially very low,” unlike the strict standard Dukes established for the commonality requirement applicable to class actions.121 Although a handful of courts have allowed for the possibility that Dukes is at least “instructive” in this context,122 the prevailing view that Dukes does not raise the bar for conditional certification of FLSA cases has probably contributed to the recent “uptick in the filing of FLSA suits.”123

Third, the imposing standards set by Dukes may be driving plaintiffs toward other alternative modes of aggregate litigation as well. In particular, some states authorize so-called “representative” actions, under which there is no explicit requirement that plaintiffs seek certification of a class but may nonetheless be authorized by statute to seek restitution or penalties on behalf of absent individuals. In Gonzalez v. Millard Mall Services, for example, the plaintiffs sought class certification of a number of claims in a suit alleging that the defendants failed to provide meal periods and pay split shift pay, among other things.124

But the plaintiffs also sought to advance one claim without seeking class treatment—specifically, a claim for civil penalties under California's Private Attorneys General Act of 2004 (“PAGA”).125 According to the court, class treatment was not necessary for the PAGA claim because such claims are “mainly for the benefit of the general public” that are in the form of a “private attorney[] general” action, and “PAGA provides no specific class certification requirements.”126 Some courts have similarly construed the consumer-protection law of the District of Columbia,127 though one local D.C. court held that “representative” actions under that law must still satisfy class-certification requirements.128 The parameters of representative actions—and the issue of whether they must comply with class-certification requirements, at least in federal court—remain to be defined with greater precision. But litigation in this area is likely to expand as class certification becomes more difficult to attain under Dukes.

John Beisner is a partner and co-chair of the mass torts and insurance litigation group at Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C. Beisner can be contacted at

Geoffrey Wyatt is an associate in the group, and can be reached at

The authors are grateful for the assistance they received from Skadden associates Jordan Schwartz and Milli Hansen in writing this article.


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