By Elizabeth Chamblee Burch*
Wal-Mart Stores, Inc. v. Dukes is the latest in a long line of both congressional and court-based maneuvers that make certifying a class increasingly difficult and nonclass aggregation through multidistrict procedures exceedingly likely. Since the mid-1990s, both Congress and the courts have taken steady measures to curtail the prevalence of class actions by providing federal courts with jurisdiction, making it harder to plead claims, and raising the threshold for class certification. Consider, for example, the changes wrought over the past fifteen years by the Private Securities Litigation Reform Act, the Securities Litigation Uniform Standards Act, Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and the Class Action Fairness Act, to name but a few.
Although each of these changes made class actions more difficult to certify, Wal-Mart Stores, Inc. v. Dukes dramatically altered the relative ease with which plaintiffs’ counsel could certify not only a Rule 23(b)(2) class, but classes across the board. The Dukes majority presented defendants with three forms of new artillery: a formidable commonality standard under Rule 23(a), an impossibly high standard for recovering monetary remedies on a classwide basis under Rule 23(b)(2), and, lest a class squeak by under Rule 23(b)(3), the ability to raise individual defenses.