No Class: Tougher Certification Standards In Environmental Mass-Tort Cases

The United States Supreme Court opinion in Wal-Mart Stores, Inc. v. Dukes , 131 U.S. 2541 (2011), significantly heightened the standard for putative class action plaintiffs to meet the commonality element of class certification. Although Wal-Mart was an employment discrimination case, two recent opinions suggest that its exacting standards will be applied in environmental mass-tort matters as well. Both opinions, relying at least in part on the heightened certification standards articulated in Wal-Mart , focused on deficiencies in the commonality element to deny certification.

Rule 23(a)(2) of the Federal Rules of Civil Procedure requires class representatives to show that their claims share a common question of law or fact with the members of the proposed class whom they seek to represent. Prior to the decision in Wal-Mart , courts typically treated the Rule 23(a)(2) commonality requirement as a low hurdle that could be overcome with a single common question of law or fact among the members of the proposed class. In environmental matters, for example, this standard could be met by showing the existence of such common questions as whether the defendant emitted contaminants from its facility, causing damages, or whether the defendant violated a particular statute.