Is My Case Suitable for Class Certification? Part 3

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Is My Case Suitable for Class Certification? Part 3

In a class action, a representative is permitted to conduct litigation only on behalf of a group of persons who are “similarly situated.” That is to say, a class representative may only conduct a class action if he or she and an ascertainable group of unnamed others share a common legal or factual question that it is capable of class-wide resolution. A common question is the linchpin of the class action device.

• Commonality

The crux of “commonality” is that a legal or factual question, shared by all class members, resolves an issue that is central to the validity of the class claims in a single stroke. Thus, what matters is not the raising of common questions in droves, but the capacity of the class action device to generate a common answer apt to drive the resolution of the class claims. Indeed, since the class action device is intended to promote judicial economy by sparing courts the burden of having to decide numerous actions, one after another, class-wide resolution of a question apt to resolve class claims, either favorably or not, must be possible.

Common questions may center on shared legal issues with divergent factual predicates, may center on a common core of salient facts with disparate legal remedies, or, as is most often the case, may center on a common core of salient facts and legal issues. The simplest and most straightforward example of a common question is that which arises in suits alleging a product defect resulting from a flawed design – i.e., is the product defective? In a different context, a common question often arising in suits alleging employment discrimination is whether a company-wide policy or practice wrongfully discriminates against a protected class of employees.

While the commonality prong is seemingly straightforward, it has been the spoil of numerous class action attempts. Indeed, in one high profile case, class certification was reversed at the Supreme Court for having no common questions of law or fact. In Wal–Mart Stores, Inc. v. Dukes (“Wal-Mart”), plaintiffs were female employees of the retail giant who alleged that the discretion exercised by local supervisors resulted in company-wide promotion and pay disparities between male and female employees in violation of Title VII. Wal-Mart’s male dominated corporate culture, the plaintiffs alleged, was tainted with bias against women. According to plaintiffs, the discretionary decision-making of each one of Wal-Mart’s thousands of managers, including pay and advancement decisions, was influenced by the discriminatory and unlawful bias against women. Thus, it was alleged by the class that all members shared in the question of whether bias against women tainted all employment decisions.

The Supreme Court, however, reversed class certification finding that there was a lack of evidence showing a company-wide policy of discrimination or “a common mode of exercising discretion that pervade[d] the entire company.” In other words, because the plaintiffs had failed to identify any particular common conduct which, if proved, would resolve the validity of each class members’ claim of discrimination, they had failed to identify a common question of law or fact apt to drive the resolution of the class claim. In fact, the Court observed that the obvious question – why the pay and promotion disparities? – would not generate a common answer apt to drive the resolution of the litigation since the pay and promotion disparities were the result of varying discretionary decision-making by local supervisors. While some decisions were likely tainted by bias, others may not have been. Thus, Wal–Mart exemplifies the difficulty in determining the existence of and properly articulating a common question likely to generate a common and decisive answer.

In contrast to Wal-Mart, the plaintiffs in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., identified two company-wide policies (a “teaming” policy and an “account distribution” policy) which, although paired with a level of discretion exercised by regional and local managers, were alleged to have resulted in discrimination under Title VII. Thus, whether either or both of the challenged policies were unlawful was a common question apt to drive the resolution of the litigation. By identifying specific, common conduct alleged to have caused discrimination, the plaintiffs in McReynolds avoided the pitfalls of Wal-Mart.

The defendant’s conduct was also decisive in establishing commonality in a case involving the oil spill in the Gulf of Mexico. In In re Deepwater Horizon, the Fifth Circuit Court of Appeals rejected the assertion that the claims of thousands of plaintiffs in the Gulf region were too uncommon and held that in determining whether there exists a common question of law or fact, the proper focus is on the defendant’s conduct, as opposed to damages suffered. Thus, it is important to distinguish between the defendant’s conduct, which, if common, will generally satisfy the commonality prong, and damages, the degree of which need not be common.

Finally, while plaintiffs seeking class certification may satisfy the commonality prong by identifying conduct common to the class, they need not prove, prior to certification, that all class members were, in fact, injured by the conduct. It is no bar to certification that some putative class members may not have suffered damages. To satisfy the prerequisites for class certification, it is enough that the defendant’s common conduct has the capacity to harm all class members.

If you feel you may have a claim suitable for class certification, The Klamann Law Firm can help. Please call us today to learn more.

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