U.S. Court of Appeals for the Sixth Circuit

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Rehearing en banc denied

June 18, 2012

The U.S. Court of Appeals for the Sixth Circuit declined to rehear this case.

NCLC urges Sixth Circuit to rehear case addressing enforcement of Wal-Mart v. Dukes rigorous analysis requirement for class certification

May 17, 2012

NCLC urged the Sixth Circuit to grant rehearing en banc to correct the decision of a panel that failed to hold a district court to its requirement under Rule 23 and Wal-Mart v. Dukes to conduct a “rigorous analysis” before certifying a class and engaged in its own erroneous review of the record. In this case, the district court failed to identify any record evidence or to weigh and preliminarily resolve disputed facts relevant to the Rule 23 inquiry, instead analyzing the plaintiffs’ “allegations” and “theories.” Then, the appellate panel compounded the district court’s errors when it failed to reverse the class certification order, or to remand for the district court to resolve the relevant factual disputes. In its amicus brief, NCLC argued that the panel’s decision conflicts with Wal-Mart v. Dukes and the law of other Circuits, resulting in a certified class that suffers from a fatal lack of commonality and predominance, and includes individuals who have not been harmed. If allowed to stand, the decision could adversely affect many businesses through increased exposure to “no injury” consumer class actions.

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