Developments in Class Action Law
Class action law has changed dramatically in some ways over the years. Not only is the Rule 23(a) “commonality” requirement heightened in the aftermath of the Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), but some courts have begun certifying “issues” under Rule 23(c)(4) more readily in the aftermath of Wal-Mart, as Judge Posner did in the Seventh Circuit in McReynolds v. Merrill Lynch, 672 F.3d 482 (7th Cir. 2012).
In addition, for the last several years, the question of how much evidence a plaintiff must present to get a class certified, and whether the evidence presented by plaintiffs and defendants at the class certification stage must be admissible under the Daubert standard, has been litigated around the country in a variety of contexts. While the issue of Daubert admissibility might have been decided by the Supreme Court in Comcast Corp. v. Behrend, No. 11-864, the Court did not address that issue. Instead, Comcast was decided on the basis of individualized damages, with the Court deciding that the predominance criterion could not be met given the individualized nature of damages in the case.