The U.S. Supreme Court’s majority opinion in Wal-Mart v. Dukes contains an elegant reformulation of the issue of commonality as it should be applied in certifying a class. It’s no trick for plaintiffs lawyers to pose a legal or factual question that’s common to the class, the opinion says. But that’s not what judges should be looking at, Justice Antonin Scalia wrote. To certify a class, plaintiffs must be able to show that their common concern can be resolved through a class action. Or, to quote the same lucid language that Scalia borrowed:
“What matters to class certification…is not the raising of common ‘questions’—even in droves—but, rather, the capacity of a classwide proceeding to generate common answers apt to drive the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.”
Justice Scalia was quoting from a 2009 NYU Law Review article by Vanderbilt law professor Richard Nagareda, the influential mass torts and class action scholar who died last October at the age of 47. Nagareda is cited no fewer than seven times in the Court’s Dukes ruling—in both the majority and minority opinions. And as class action lawyers begin to assess how the Dukes opinion will impact cases outside the realm of employment law, Nagareda’s friends and admirers are calling the Court’s opinion a tribute to his scholarship.
“I thought it was quite poignant,” said NYU professor Samuel Issacharoff, who served with Nagareda on the American Law Institute’s aggregate litigation project. “It was great to see Richard’s work cited in this fashion…But at the same time it was tragic. It reminded me of his young death, and that he wasn’t there to see it.”
Nagareda’s 2009 article, Class Certification in the Age of Aggregate Proof, specifically examined the Dukes case (along with several other major class actions). He faulted the three judges of the U.S. Court of Appeals for the Ninth Circuit who first considered Wal-Mart’s appeal of class certification for failing to consider the plaintiffs’ statistical and sociological evidence in the right context. Nagareda argued that the Ninth Circuit panel should have asked the overarching question of whether anti-discrimination laws even permit the kind of “structural discrimination” claim the Dukes class raises. (A structural discrimination claim, as opposed to a claim that Wal-Mart has an explicitly discriminatory policy, relies on showing discriminatory patterns through statistics.)
Wal-Mart counsel Theodore Boutrous Jr. of Gibson, Dunn & Crutcher cited Nagareda in Wal-Mart’s petition asking the Supreme Court to take the case, noting in particular the professor’s observation that nationwide labor statistics show gender disparities that parallel the disparities the Dukes plaintiffs asserted with regard to Wal-Mart. (The Supreme Court did not ultimately address that argument, but Justices Anthony Kennedy and Samuel Alito asked plaintiffs lawyer Joseph Sellers of Cohen Milstein Sellers & Toll about it at oral argument last March.)
Boutrous told OTC in an e-mail that Nagareda was considering writing a Supreme Court amicus brief for Wal-Mart, but died before the Court agreed to hear the case. “I was very glad to see the Court cite his work,” Boutrous said.
Nagareda’s influence on the Supreme Court’s thinking, added Adam Hoeflich of Bartlit Beck Herman Palenchar & Scott, will be all the more important as lawyers cite the Dukes opinion in class actions outside of the employment discrimination realm, including consumer and product liability cases.
(Reporting by Alison Frankel)