A New Battleground In Class Actions: Rule 23(a)(2)'s Commonality Requirement

Reproduced with permission from Class Action Litigation Report , 12 CLASS 853, 09/09/2011. Copyright © 2011 by The Bureau of National Affairs, Inc. (800-372- 1033) http://www.bna.com.

Prior to Wal-Mart Stores Inc. v. Dukes,1 federal courts generally treated Rule 23(a)(2) commonality as a low threshold requirement that could be satisfied by identifying a single common question of law or fact.2 Rule 23(a)(2) requires plaintiffs to establish that their claims share a common issue of law or fact with the members of the class they seek to represent. 3

However, this Rule 23 requirement '' 'does not require that all questions of law or fact raised in the litigation be common.' 1 H. Newberg & A. Conte, Newberg on Class Actions § 3.10, pp. 3-48 to 3-49 (3d ed. 1992); indeed, 'even a single question of law or fact common to the members of the class will satisfy the commonality requirement,' Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003).''4

In all manner of class actions filed in federal courts across the country, plaintiffs moving for class certification would routinely identify one or more common questions such as:

whether the defendant violated a statute; whether the defendant misled and/or deceived plaintiffs; whether the defendant overcharged plaintiffs; whether the defendant breached a contract; whether the defendant was unjustly enriched by its improper conduct; and whether the defendant's unlawful conduct injured plaintiffs and caused damages. Upon considering such common issues, courts generally would find that plaintiffs had satisfied the relatively simple requirement of identifying at least one common issue of law or fact.5 Indeed, defendants would not often seriously challenge ''commonality'' under Rule 23(a)(2), instead saving their fire for the far more demanding predominance requirement of Rule 23(b)(3).6

The Holding of Wal-Mart Regarding Rule 23(a)(2)

In Wal-Mart, the Supreme Court held that ''[c]ommonality requires the plaintiff to demonstrate that the class members 'have suffered the same injury.' This does not mean merely that they have all suffered a violation of the same provision of law. . . . Their claims must depend upon a common contention. . . . That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.''7 This central holding of Wal- Mart thus establishes a new precedent that it is not enough for the question to be the same for each class member, but that question must be answerable in one fell swoop.

The Supreme Court also found that plaintiffs have the burden of satisfying the Rule 23 requirements based on ''significant proof'' that can withstand rigorous analysis, and added that ''Rule 23 does not set forth a mere pleading standard.''8 Plaintiffs brought employment discrimination claims against Wal-Mart and supported their class certification motion by presenting expert...