After Wal-Mart Stores Inc. v. Dukes, 131 S. Ct. 2541 (2011), courts deciding whether to certify a class in employment cases are likely to give increased attention to potential trial plans, evaluating the nature and the quality of the evidence needed to generate common answers to common questions. Plaintiffs, seeking to facilitate class certification, are likely to propose trial plans designed to minimize individualized evidence.
In Dukes, the U.S. Supreme Court considered and rejected the plaintiffs’ trial plan, which the Court labeled “Trial by Formula.” The plaintiffs proposed to use a sample to determine what percentage of the class had valid claims, and to apply the results to the entire class without individualized proceedings. The Court tersely concluded: “We disapprove that novel project.”
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