It has been almost two years since the Supreme Court decided Wal-Mart v. Dukes and heightened commonality requirements for class certification under Rule 23(a). As the D.C. Circuit stated in its recent decision in D.L. et al. v. District of Columbia, Nos. 11-7153, 12-7042, 2013 WL 1489471 (D.C. Cir. April 12, 2013), ”Wal-Mart‘s interpretation of Rule 23(a)(2) has changed the landscape” for class certification, and this fact has been acknowledged by several Circuit courts, namely the 5th, 6th, 7th, 8th, and 10th Circuits. The D.C. Circuit can now be included in this list.
In D.L., the D.C. Circuit was asked to reconsider the Rule 23(b)(2) certification of a class of District of Columbia children with disabilities. The class members alleged that the District’s policies and practices had resulted in systemic failures to identify, locate, evaluate, and offer special education and related services, in violation of the Individuals with Disabilities Education Act (IDEA).
The district court initially certified the plaintiff class in 2006, prior to the Dukes decision, finding that the Rule 23(a) commonality requirement was met because “plaintiffs…have a common injury, namely the denial of a [free appropriate public education] under the IDEA.” The district court further found that the plaintiffs had “pointed to practices which, if proven, constitute a pervasive pattern of failing to identify, locate, evaluate and [offer services]” to the children entitled to assistance pursuant to IDEA. Subsequently, the District moved to decertify the class, but before the district court made any further rulings, the Supreme Court decided Dukes in June 2011.
In light of Dukes, the District supplemented its motion to decertify the class, arguing, in part, that the plaintiffs’ claims were too broad to establish commonality under Rule 23(a) under Dukes. In response, the plaintiffs proposed to amend class certification to include four subclasses, and further sought a hybrid certification under Rule 23(b)(2) and 23(b)(3). The district court denied the motion to decertify, finding that the plaintiffs had “amply demonstrated there are questions of law and fact common to the class,” all members of which “suffered the same injury: denial of their statutory right to a free appropriate public education.” Importantly, the district court found that the “systemic failures” within the District’s education system were the “glue” binding together the various reasons why individual class members were denied appropriate educational opportunities.
As is now familiar, under the Dukes requirement of “rigorous” class-certification analysis, district courts must ensure that before certifying a class under 23(a)(2), the class members are not merely alleging that they “have all suffered a violation of the same provision of law.” Moreover, “[w]hat matters to class certification … is not the raising of common ‘questions,’ … but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation.” Additionally, as the D.C. Circuit noted, the Supreme Court’s recent decisions in Amgen and Comcast also inform the class certification analysis: “merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.”
Applying these guidelines, the D.C. Circuit vacated the order certifying the class and remanded the case to the district court for reconsideration of whether a class, classes, or subclasses may be certified. The court held: “After Wal-Mart it is clear that defining the class by reference to the District’s pattern of failing to provide [free appropriate public education] speaks too broadly because it constitutes only an allegation that the class members ‘have all suffered a violation of the same provision of law,’ which the Supreme Court has now instructed is insufficient to establish commonality given that the same provision of law ‘can be violated in many different ways.’” The court suggested that the identification of a single or uniform policy or practice that would bridge all claims could justify certification.
Importantly, the court did not “rule out the possibility of classes or subclasses that are designed around a policy or practice that links the class as a whole; neither would it rule out separate classes in a consolidated case.” The court also noted that although Rule 23(b)(2) “applies only when a single injunction or declaratory judgment would provide relief to each member of the class,” courts are not barred from granting further equitable relief that “does not reach every plaintiff in the case.”
It will be interesting to see whether the district court certifies the revised classes or subclasses on remand. In any event, the D.C. Circuit is yet another Circuit court that takes the Dukes commonality requirements seriously.