How is a district court supposed to apply the Supreme Court’s opinion in Wal-Mart v. Dukes? Dive deeply into the specifics of the plaintiff’s causes of action, the defendant’s defenses and the relevant facts. A more general, broad brush analysis will not do. That was the message delivered by the Fifth Circuit fairly strongly in an opinion released last Friday.
M.D. v. Perry, No. 11-40789, 2012 U.S. App. LEXIS 6061 (5th Cir. Mar. 23, 2012), is a class action brought by children in Texas’ foster care system, seeking declaratory and injunctive relief regarding alleged systemic deficiencies in that system. It is similar to cases arising out of other states in which classes had been certified, and certification affirmed, by other circuits before Wal-Mart. The Southern District of Texas certified a Rule 23(b)(2) class in this case, but the Fifth Circuit vacated and remanded largely because the district court’s analysis was not sufficiently rigorous and tailored closely enough to the requirements of Wal-Mart with respect to commonality. The Fifth Circuit explained that:
- The district court failed to focus intently on Wal-Mart’s key holding on commonality. The Fifth Circuit explained that “the district court failed to consider or explain how the determination of [common] questions would ‘resolve an issue that is central to the validity of each one of the [individual class member’s] claims in one stroke.’ Rather, the district court merely found that the Named Plaintiffs’ various allegations of ‘systemic deficiencies’ . . . raised common questions of fact.” Id. at *20 (quoting Wal-Mart).
- The district court’s analysis of common questions of law was too general and broad brush. The Fifth Circuit explained that “the district court conducted no analysis of the elements and defenses for establishing any of the proposed class claims, nor did it adequately explain how those claims depend on a common legal contention whose resolution ‘would resolve an issue that is central to the validity of each of the [individual’s] claims in one stroke.” Id. at *24-25 (quoting Wal-Mart). This is required to provide a proper record for appellate review.
- Delving into the details is essential. The Fifth Circuit instructed that “the district court must explain its reasoning with specific reference to the ‘claims, defenses, relevant facts, and applicable substantive law’ raised by the class claims, in order to ensure that ‘dissimilarities within the proposed class’ do not ‘have the potential to impede the generation of common answers.’” Id. at *26 (citations omitted).
How can defendants take advantage of this? Make the legal standards section of your opposition to class certification interesting to read. Spice it up, and use this case (and others) to illustrate what the district court needs to do under Wal-Mart in evaluating class certification. This case should be quite useful outside of the Fifth Circuit in reminding district courts of the importance of a thorough, rigorous analysis before certifying a class (although there are cases where no hard work is necessary to determine that the case is facially improper for certification). Call plaintiffs’ counsel on the carpet when they proffer a superficial analysis that does not delve into the details of the causes of action, defenses and facts.