Federal Circuit Questions on Class Certification Standards

Is there going to have to be a Supreme Court decision somewhere along the line to amend an implied rift between the way federal courts seem to be determining class certification standards?

An article in May’s ABA Section of Litigation newsletter compares In re IPO Securities Litigation (2nd. Circuit, 2006) and Dukes v. Wal-Mart (9th. Circuit, 2007) as highlights of this divergent approaches seemingly being taken in applying Civil Rule of Procedure 23. (Here)

In IPO, despite “conflicting messages” associated with its previous precedents, the Second Circuit “aligned itself with other circuits, including the 4th., 7th., and 8th., in obliging district courts to determine whether all Rule 23 requirements had been met and allowing the courts to resolve factual disputes even if they overlapped merit issues or involved conflicting expert opinions.” This followed a 1982 standard set by the Supreme Court in General Telephone Co. v. Falcon, which “urged district judges to undertake a ‘rigorous analysis’ of a plaintiff’s class allegations, and adding that it sometimes ‘may be necessary for the court to probe behind the pleadings,’” according to the article.

In Dukes – what may be the largest class action in history, involving some 1.5 million female employees of WalMart Stores -- the Ninth Circuit Court of Appeals, repeatedly citing the 1974 precedent laid out in Eisen v. Carlisle & Jacqueline, “reasoned that in analyzing ‘commonality’ under Rule 23(a), the district court properly avoided resolving a ‘battle of the experts’ and was not required to apply the full-blown Daubert ‘gatekeeping’ standard.” [See Daubert v. Merrell Dow Pharmecuticals (1993)]

Subsequent to the article’s writing, a petition for rehearing was submitted in IPO, but was denied.