How the Supreme Court handles environmental class actions
Atlanta partners Doug Henderson, William Droze and Steve Hewitson’s article “Environmental Class Actions After Dukes: Is ‘Rigorous’ Analysis the New Rule of Law?” garnered three media placements over the past two months – on September 14 on Bloomberg Law’s web site, the September 14 edition of Bloomberg BNA’s Class Action Litigation Report, and in the September 27 issue of Bloomberg BNA’s Toxics Law Reporter.
The trio’s article discusses the U.S. Supreme Court’s decision in Wal-Mart Stores v. Dukes, which announced a more stringent test for evaluating commonality in all putative class actions, no matter the subject area. In the context of environmental class actions, Henderson, Droze and Hewitson note, the increased focus on commonality, along with the need to establish commonality using reliable expert evidence, has led to fewer environmental class actions being certified. However, not all courts follow Dukes, the authors contend, and Dukes does not prohibit certification of all environmental class actions.
“The legacy of Dukes may go well beyond its increased focus on commonality and its unstated requirement to resolve fundamental evidentiary issues at the certification stage,” Henderson, Droze and Hewitson state. “The true bottom line … is the required rigorous analysis for each element of class certification. … [and] rigorous analysis is a good thing for the legal system.”