Author: Deborah Renner, Partner at Baker Hostetler LLP
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 Dukes, as Judge Posner recently 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, and should now be decided in two very different cases before the Supreme Court, Comcast Corp. v. Behrend, No. 11-864, and Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085.
Meanwhile, a certiorari petition was just filed in American Express Co. v. Italian Colors Restaurant, No. 12-133, dealing with the issue of the enforceability of class action waivers in (more …)