Richard Nagareda’s analysis of class commonality influences Wal-Mart v. Dukes decision

Jun 22, 2011

The work of the late Richard A. Nagareda, an expert in complex litigation who was the inaugural head of Vanderbilt’s Cecil D. Branstetter Litigation and Dispute Resolution Program, was extensively cited in the Supreme Court’s majority opinion in Wal-Mart Stores, Inc. v. Dukes et al, as well as in a dissent to Part 2 of the majority opinion written by Justice Ruth Bader Ginsburg, in which she was joined by Justices Stephen Breyer, Elena Kagan and Sandra Sotomayor.

In this essay published in Thomson Reuters News & Insight, reporter Alison Frankel discusses the “elegant reformulation of the issue of commonality as it should be applied in certifying a class” outlined by Professor Nagareda in his 2009 New York Law Review article, “Class Certification in the Age of Aggregate Proof.”

In Wal-Mart v. Dukes, the Court ruled unanimously that the plaintiffs’ lawyers had improperly sued Wal-Mart under Rule 23(b)(2), a section of the rules governing class action lawsuits that was not primarily concerned with monetary claims, with all nine justices agreeing that “the class in this case…should not have been certified” under the rule.

However, the Court split 5-4 regarding the issue of whether the suit satisfied a requirement of the class-action rule that “there are questions of law or fact common to the class,” with both opinions citing Professor Nagareda’s scholarship.

“The Dukes case highlights Richard’s continuing influence on the way our courts evaluate and resolve our country’s most intractable disputes,” said Dean Chris Guthrie. “I wish Richard were here to see the way his work influenced the opinions in this decision and to lend his insights to the continuing debate.”

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