As was recently reported, tomorrow a federal district court in California will consider whether the Wal-Mart v. Dukes class action lawsuit recently reversed and remanded by the U.S. Supreme Court may proceed in the form of multiple class action lawsuits involving narrower classes.
On June 20, 2011, the Supreme Court issued its opinion in Wal-Mart v. Dukes. That decision, among other things, held that the proposed nationwide class of some 1.5 million female employees was not consistent with Rule 23(a) of the Federal Rules of Civil Procedure. Specifically, the Court concluded that Rule 23(a)(2) requires a party seeking class certification to prove that the class has common questions of law or fact, i.e., the claims must depend upon a common contention of such a nature that it is capable of classwide resolution. On remand, an open question remains whether the commonality requirement can be met if the gargantuan class action is broken down into hundreds if not thousands of smaller class actions.
Where do trial courts go after Wal-Mart v. Dukes? What do the "new and improved" classes look like if they are to pass the standard announced by the Supreme Court? As a matter of policy, what is the right outcome for our system of justice?