United States: Supreme Court To Decide Whether To Hear Four High-Stakes Cases Asking When A Suit May Be Litigated As A Class Action

The Supreme Court will decide before the end of this Term whether to hear any or all of four important cases that raise recurring questions of class action law that have sharply divided the lower courts. These cases address questions that we have blogged about before (e.g., here and here): whether a class full of uninjured members may be certified, and whether plaintiffs may rely on experts and statistics to gloss over individualized differences among class members in order to prove their class claims and damages. These questions strike at the heart of what it means to be a "class," because class actions generally must be litigated using common evidence to show that each class member has been harmed.

The Supreme Court's seminal decisions in Wal-Mart Stores, Inc. v. Dukes (2011) and Comcast Corp. v. Behrend (2013) seemed to resolve these legal issues. Dukes decertified a nationwide class of employees raising gender discrimination claims and held that plaintiffs seeking to represent a class must "demonstrate that the class members 'have suffered the same injury'" by proving their claims that must be "capable of classwide resolution ... in one stroke." The Dukes Court also disapproved of "trials by formula," in which liability is determined for a "sample set" of class members and then "applied to the entire remaining class." And in Comcast, the Court overturned a class certification order in an antitrust case because plaintiffs' statistical model fell "far short of establishing that damages are capable of measurement on a classwide basis."

Some lower courts have read Dukes  and Comcast to shut the door to class actions in which plaintiffs cannot establish classwide liability with common evidence, but others continue to allow plaintiffs to represent classes full of uninjured members. In 2013, defendants asked the Supreme Court to review Sixth and Seventh Circuits decisions that allowed a handful of plaintiffs who alleged that their washing machines produced musty odors to represent buyers of scores of different washing machines, even though only a small portion of buyers ever complained about odors, most purchasers were satisfied with their machines, and use and care habits varied across the classes and affected the conditions of users' machines. After an initial GVR the Court ultimately declined to hear those cases, and these important legal issues have now percolated in the lower courts for two more years, leading to the certification of many dubious classes.

Four cert petitions now ask the Court to pick up where it left off in Dukes and Comcast and further flesh out the limits of when a case may be litigated as a class action. In a massive antitrust case, Dow Chemical is seeking review of a Tenth Circuit decision (pdf) that affirmed a $1.1 billion judgment to a class of purchasers of polyurethane chemicals. Plaintiffs alleged that Dow conspired with other polyurethane manufactures to issue coordinated price announcements—not actual price increases—but the evidence at trial showed that individual purchasers robustly negotiated prices with individual suppliers, that many purchasers switched to lower-cost suppliers of the chemicals, and that other purchasers simply refused to pay announced price increases. The Tenth Circuit swept those individualized issues under the rug by presuming that price announcements actually increased prices to all purchasers, a presumption that the Supreme Court has called "unreasonable" in a controlling antitrust decision.

Cert petitions in three employment cases are also knocking at the Court's door. Wal-Mart seeks review of a Pennsylvania Supreme Court decision (pdf) that affirmed a $150 million judgment to a class of 187,000 current and former Wal-Mart employees alleging that Wal-Mart did not fully compensate them for rest breaks and off-the-clock work. The plaintiffs of course did not call 187,000 employees to testify at trial. They called a handful of plaintiffs and otherwise used statistical extrapolation of some employee time cards to prove injury to the class, depriving Wal-Mart of its right to challenge each individual class member's claim that he or she was not fully compensated.

Tyson Foods has asked the Court to review an Eighth Circuit decision (pdf) that affirmed a $6 million judgment to a class of workers alleging that Tyson did not fully pay them for time spent donning and doffing protective equipment. The evidence showed that protective equipment and walking times varied across the class, but the Eighth Circuit allowed plaintiffs to paper over those differences by modeling the time that it took the "average" employee to dress and walk to and from his work station—though most class members looked nothing like this hypothetical employee. Plaintiffs' controversial use of statistics fractured the Eighth Circuit. The panel split 2-1 in its decision, and the Eighth Circuit narrowly denied rehearing en banc by a 6-5 vote.

Finally, Allstate Insurance has asked the Court to review a blogged about previously. There, the Ninth Circuit allowed one claims adjuster to represent a class of all California claims adjusters alleging that Allstate has an unofficial policy of pressuring adjusters to work uncompensated hours. The lower courts' apparent trial plan is to allow the plaintiff class to prove three issues that would not resolve liability for even one class member and then to push all individualized defenses and damages issues to nebulous, to-be-determined individual hearings that the district court will describe more fully at some later date.

Predicting which cases the Supreme Court will hear is always difficult, but chances seem good that the Court will grant certiorari in one or more of these cases. The Dow, Wal-Mart, and Tyson petitions are unusual in that these cases all were tried, reached final judgments, and have fully developed records. Because class certification puts tremendous pressure on defendants to settle, very few class actions are litigated to final judgment. The cert petitions the Court sees in class actions typically challenge interlocutory rulings upholding class-certification orders; plaintiffs oppose those petitions by arguing that any harm is speculative and any errors can be corrected by the district courts as the case proceeds. The plaintiffs in Dow, Wal-Mart, and Tyson cannot not offer those arguments. The full trial records allow the Court to see exactly the effects that class certification has on the defendants' ability to mount a defense at trial; no speculation is required.

Given the staggering judgments in Dow and the most recent Wal-Mart case, there will be even more pressure on defendants to settle future cases after orders granting class certification. If the Court doesn't step in soon to clarify to the lower courts that it meant what it said in its decisions in Dukes and Comcast, defendants will be even more likely to throw in the towel rather than risk another nine- or ten-figure jury verdict. The cert petitions in these cases present the Court with an extraordinary opportunity to review class-certification orders in cases with fully developed trial records, one that may not come around again given the behavior of many lower courts now.

Numerous friend-of-the-court briefs have asked the Supreme Court to hear these cases, signaling their importance. The Chamber of Commerce, Business Roundtable, National Association of Manufacturers, Product Liability Advisory Council, prominent economists, and many other concerned organizations have highlighted the broad impact that these cases have on class-action litigation and discuss the significant toll that class actions take on our economy. And John Engler, the former governor of Michigan and now president of Business Roundtable, urged the Supreme Court to review these cases because of their importance to American business in a recent op ed in the Washington Times.

These four petitions show that, despite the Supreme Court's decisions in Dukes and Comcast, courts continue to certify large classes that are so disparate that a defendant cannot conceivably offer a full defense within the class-trial format, which prevents close individual inquiry into each class member's circumstances. We would not be surprised if the Court decides to hear some or all of these cases and then issues decisions that will have lasting impact on class-action law.

Tags: antitrust, Bouaphakeo v. Tyson Foods Inc., Braun v. Wal-Mart Stores, Class Certification, Comcast Corp. v. Behrend, Eighth Circuit, employment, In re Urethane Antitrust Litig., Inc., Jimenez v. Allstate Ins. Co., Ninth Circuit, Pennsylvania Supreme Court, product liability, Sears Roebuck & Co. v. Butler, Seventh Circuit, Sixth Circuit, Supreme Court, Tenth Circuit, Trial by Formula, wage and hour, Wal-Mart Stores Inc v. Dukes, Whirlpool Corp. v. Glazer

Visit us at mayerbrown.com

Mayer Brown is a global legal services provider comprising legal practices that are separate entities (the "Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP and Mayer Brown Europe – Brussels LLP, both limited liability partnerships established in Illinois USA; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales (authorized and regulated by the Solicitors Regulation Authority and registered in England and Wales number OC 303359); Mayer Brown, a SELAS established in France; Mayer Brown JSM, a Hong Kong partnership and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.

© Copyright 2015. The Mayer Brown Practices. All rights reserved.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions