Fourth Circuit Argues With Itself Over Dukes’ Application

While commentators can, and often do, debate fine points regarding the technical elements of a class action claim, the result in a given case is often dictated by a more fundamental concern.  That issue is whether the judge views class action treatment as an exception to the general rule or, instead, as a fundamental right. 

Just two years ago, in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct   2541 (2011), a majority of the Supreme Court came down on the side of viewing the class action requirements more strictly, and class action treatment to be the exception rather than the rule.  But even the opinions in that case reflected this divide, with the dissent largely taking the view that courts should enforce Rule 23's requirements more leniently to allow more and greater class action claims.