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One Stroke To Commonality

In Wal-Mart Stores, Inc. v Dukes et al, 564 U.S. ___ (2011) (Scalia, J.), the Supreme Court offered this definition of commonality - a common contention "must be of such a nature that is capable of classwide resolution - which means that determination of its truth or falsity will resolve an issues that is central to the validity of each one of the claims in one stroke."  The Court went on to provide this quote from an article authored by Professor Nagareda:

"What matters to class certification . . . is not the raising of common 'questions' - even in droves - but, rather the capacity of a classwide proceeding to generate answers apt to drive the resolution of the litigation."

Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 32 (2009).

There is nothing novel about this definition, as two recent opinions illustrate. Both Fitzpatrick, et al v. General Mills, 635 F.3d 1279 (11 tt Cir. 2011) and Johnson, et al v. General Mills, 2011 U.S. Dist. LEXIS 45120 (C.D. Cal., Apr. 20, 2011), allege that the digestive health benefits of YoPlus.  Class certification was granted in both cases upon findings that the truth or falsity of the claim for health benefits was a common issue.  "[A]n answer to the paramount question of whether YoPlus works as advertised will directly and substantially impact every class member's liability case and entitlement to relief under [the Florida Deceptive and Unfair trade Practices Act]."  Fitzpatrick, 635 F.3d at 1282.  Likewise, the court in Johnson held that the central issue of the suit was the allegedly "material misrepresentation that Obelus promotes digestive health in a way ordinary yogurt does not."   As the court further observed General Mills "could defeat the claims of the entire class by proving that YoPlus promoted digestive health in a manner that General Mills allegedly represented, " that is the issue could be resolved precisely as Justice Scalia said, "in one stroke."

The "one stroke" test is likely to become the new shorthand for the commonality requirement. We will certainly look hard at our potential cases to be certain the test can be met.  


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