Three Myths About Wal-Mart Stores, Inc. v. Dukes

The Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes raised the bar for plaintiffs seeking class certification and will have a significant impact on all class actions for decades to come. Some lower courts, however, have adopted narrow readings of the Supreme Court’s decision, which has led commentators to underestimate the long-term importance of Dukes. This article seeks to debunk three myths about—and misinterpretations of—Dukes on which plaintiffs have relied, with some initial success, to circumvent its key holdings: (1) that Dukes is relevant only to large, nationwide class actions, (2) that “Trial by Formula” is still a viable method of classwide adjudication, and (3) that the Dukes majority conflated Rule 23’s commonality and predominance requirements. Properly understood, Dukes applies to all class actions regardless of the size of the class or the underlying substantive law, precludes the use of statistical sampling and extrapolation to deprive a class action defendant of its right to present individualized defenses, and did not merely conflate the commonality and predominance requirements, but instead clarified that both requirements are concerned with identifying common questions that can produce common answers.