Clarifying Sameness Requirements in Class Certification: Are GVRs Helping?

Contributed by Melody Akhavan

If you’ve been following our blog for any length of time, you’ll know that we love covering class certification issues.  If you’re new to our blog, welcome. We love covering class certification issues.

Attorneys on both sides of the “v.” have been paying especially close attention to the Supreme Court’s class certification rulings since Dukes v. Wal-Mart was issued two years ago.  Issues of similarity in class actions are currently in the spotlight because their implications are immense:  is there enough sameness among plaintiffs to justify class treatment?  If the answer is yes, then defendants will likely have to pay large sums of money to settle or engage in a long drawn-out battle.  If the answer is no, the threat of such a high pay-out is dramatically reduced and the case more likely to quickly go away.  That’s why issues of similarity matter.  And over the past couple of years, parties have been looking to the Supreme Court to clarify exactly how much sameness is required to justify class certification.  Unfortunately, what litigants have been receiving from the Court is less like clarity and more like a tease in the form of GVR orders.

What is a GVR order?  As discussed in a previous post, the Supreme Court will sometimes summarily grant certiorari, vacate the decision below without finding error, and remand the case for further consideration by the lower court.  In the past several weeks since the Court issued its Comcast decision, two closely-watched cases with a lot of potential to affect the class certification landscape have been GVRed for further consideration at the Circuit level consistent with Comcast:   Whirlpool v. Glazer (issued in April) and Sears, Roebuck & Co. v. Butler (issued yesterday).

The recent GVRs have left us wondering about the Supreme Court’s actual views concerning the viability of these purported class actions.  Will the GVRs in Whirlpool and Sears serve as an effective death sentence for class certification in cases where not all plaintiffs used the same products or suffered the same injury (if any)?  Or will the GVRs simply require the Circuit Courts to prepare more detailed opinions appropriately justifying class certification?  To answer those questions, we’ll have to see how the Supreme Court responds to what will no doubt be further cert petitions following review by the Circuit Courts.   We’ll be paying close attention as these two cases play out on remand, and are eagerly awaiting some much-needed clarification on the status of similarity requirements in class certification in the wake of Dukes and Comcast.