Reaping the Benefits of Class Cerification: How and When Should "Significant Proof" Be Required Post-Dukes?

I. INTRODUCTION "[P]rocedure is power, whether in the hands of lawyers or judges. . . . Substantive rights, including constitutional rights, are worth no more than the procedural mechanisms available for their realization and protection. Procedural rules often have enormous influence on the outcome of a case and can effectively deny litigants the opportunity of reaching the merits.2 Nowhere, perhaps, is this more evident tiian with class certifications, which require that plaintiffs seeking to sue as a group explicitly obtain approval from a court before their joint claims can go forward. Courts have long recognized that denial of a class can be the "death knell" for a suit because it decreases plaintiffs' incentives to sue.3 On the other hand, die granting of class certification in some cases may also raise the stakes so high that defendants feel irresistible pressure to settle.4 The potential consequences of low class certification standards are illustrated by a long line of often conflicting cases, but especially by the Supreme Court's recent decision, Wal-Mart Stores, Inc. v. Dukes? The Court reversed the Ninth Circuit's6 certification of a proposed class represented by six female plaintiffs, who sued for billions of dollars and alleged that various Wal-Mart employees had engaged in sex discrimination.7 In an opinion written by Justice Scalia, the Court held that the plaintiffs had failed to present "significant proof that they had met the requirement of commonality, which is a prerequisite for certification.8 Even though Dukes has been laid to rest by the High Court, lower courts will likely continue to disagree over the level of proof required for certification because of the factual complexities involved in applying standards of proof to particular cases and the limited analysis regarding "significant proof in the opinion. While Dukes's holding and analysis clarify that a "significant proof standard applies to plaintiffs seeking to certify a class based on a claim that a subjective policy of decision making resulted in discrimination, the opinion does not make clear what that standard should entail and whether or when it applies outside of a Dukes-like context. Scholars who have advocated a high standard of proof and addressed the issue of how far a court can probe into the merits have also neglected to answer the same questions.9 Thus, this Comment adds to the existing literature by using Dukes and some of its notable predecessors as examples to illustrate what a "significant proof inquiry should entail and when it should be applied. The next section of the paper, Part II, explains the requirements for class actions and provides a background on Dukes and the "significant proof standard. Part III outlines what a "significant proof standard should entail; specifically, it argues that plaintiffs should be required to prove commonality and typicality by a preponderance of the evidence, that the amount of proof should increase with the size of the class, that a defendant's objections and proof on both sides of die case should be considered, and that Daubert standards should apply. Part W argues that a "significant proof standard should apply outside of the Dukes context to cases that share elements similar to those present in Dukes. Part V concludes. II. RELEVANT BACKGROUND ON CLASS CERTIFICATION AND DUKES A. Requirements for Certification The Federal Rules of Civil Procedure provide for three types of class actions, each with its own specific requirements.10 But no matter which type of class action plaintiffs seek, all class action suits must satisfy the following "prerequisites": "(1) the class is so numerous that joinder of all members is impracticable" (numerosity); "(2) there are questions of law or fact common to the class" (commonality); "(3) the claims or defenses of the representative parties are typical of the claims or defenses of die class" (typicality); and "(4) the representative parties will fairly and adequately protect the interests of the class" (representativeness). …