The opinion in Dukes v. Wal-Mart really is oppressively long for someone with a busy practice! I'm still only through Part II of the discussion, entitled "Standards for Class Certification Under Rule 23" (slip op. at 6151-83). Still, that section is a very important part of the majority opinion, comprising 32 pages out of 97. It contains a number of significant points.
The core issue this section addresses is the extent to which a district court may or may not consider and decide merits questions at the class certification stage.
My first observation is that the majority goes out of its way to emphasize that Ninth Circuit precedent on this point is essentially no different from the precedents of other circuits, and that we do not face a crisis-level split among the circuits:
- "As we describe in more detail below, every circuit to have considered this issue, including our own previous decisions, has reached essentially the same conclusion: Falcon’s central command requires district courts to ensure that Rule 23 requirements are actually met, not simply presumed from the pleadings." Slip op. at 6154-55, citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982).
- "The Second Circuit’s decision in IPO agreed with Szabo, providing what is now the leading case on the extent to which a district court must resolve Rule 23 issues that overlap with the merits of the case. IPO held that factual disputes concerning each of the Rule 23 factors must be analyzed and resolved. 471 F.3d at 41. This is a similar holding to our previous explanation—discussed in more detail below—that a district court must make 'determinations' that the prerequisites of Rule 23(a) have been satisfied before it certifies a class, 'which may require review of the same facts and the same law presented by review of the merits.' Falcon, 457 U.S. at 161; Blackie v. Barrack, 524 F.2d 891, 897 (9th Cir. 1975)." Slip op. at 6157 (emphasis added).
- "Though, of course, different circuits have used different words in articulating the review necessary, we think New Motor Vehicles overstates the degree of difference among the circuits. The core holding across circuits that have considered the issue is essentially unanimous: district courts must satisfy themselves that the Rule 23 requirements have been met before certifying a class, which will sometimes, though not always, require an inquiry into and preliminary resolution of disputed factual issues, even if those same factual issues are also, independently, relevant to the ultimate merits of the case." Slip op. at 6157-58 (emphasis added).
- "A closer discussion of the cases the First Circuit has cited demonstrates the truly narrow range in which this 'spectrum' actually exists. .... In our review of these cases, we find this 'spectrum' of certification standards narrower and more internally consistent than does the First Circuit. .... [W]e respectfully disagree with the First Circuit's conclusion that the Third Circuit allows a more lax standard of review than do the other circuits." Slip op. at 6158, 6159, 6150.
- "While this language is not as definitive as that used by the Second Circuit in IPO, for example, it sets up essentially the same standard." Slip op. at 6160-61.
- We thus view whether an appellate court requires district courts to 'resolve,' id.; 'find,' Unger, 401 F.3d at 319-20; or 'determine,' IPO, 471 F.3d at 40-41, that Rule 23 requirements have been met, as essentially, even if not precisely, the same standard." Slip op. at 6161.
- "Blackie is entirely consistent with the Supreme Court’s guidance .... In short, the explanation we provide today is not a new standard at all. ... Our explanation confirms what our decisions have held for more than twenty-five years...." Slip op. at 6168-69.
- "This review of Supreme Court dictates, as well as our own and other circuits’ treatment of the issue, leads us to recognize a number of constant holdings across circuits ...." Slip op. at 6170.
- "In short, these observations, which include the Supreme Court’s direction, long-standing precedent in this court, and treatment from other circuits, lead us to the following explanation of the proper standards governing a district court’s adjudication of a Rule 23 motion for class certification." Slip op. at 6176.
I will have more in a later post on the substantive issue that the majority says has been so consistently resolved across the circuits. But doesn't it seem that the lady doth protest too much? The majority's protestations (and I haven't even quoted all of them) seem intended to convince a skeptical U.S. Supreme Court that there is no split among the circuits warranting review. Which is not to say that the argument is not ultimately convincing.
