Wal-Mart’s Lasting Rule 23(b)(3) Impact: Establishing Strict Evidentiary and Burden of Proof Standards for Class Certification
Few opinions have received more publicity, and been the subject of more commentary, than the Supreme Court’s 2011 ruling in Wal-Mart Stores, Inc. v. Dukes, et al. Most commentary on Wal-Mart has focused on the elevation of the Rule 23(a)(2) commonality requirement. Yet a review of the numerous opinions that have cited Wal-Mart illuminates a startling revelation: The Court’s elevation of the commonality requirement has had minimal impact on decisions whether to certify Rule 23(b)(3) damages class actions. The long term impact of Wal-Mart instead concerns a critical legal issue that has received almost no publicity: the Supreme Court’s adoption of a strict evidentiary and burden of proof standard with respect to class certification rulings.
Reproduced with permission from Class Action Litigation Report, 13 CLASS 1270, 11/09/2012. Copyright © 2012 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com