Greg Cook Quoted in the ABA's Litigation News

Greg Cook, co-chair of the Business Litigation Practice Group, was quoted in the most recent edition of the ABA's Litigation News, Vol 37, No. 1 (fall 2011) regarding the impact of Wal-Mart v. Dukes.

Excepts:

“The importance of Dukes to class action law is at least threefold,” says Gregory C. Cook, Birmingham, AL, co-chair of the ABA Section of Litigation’s Class Actions and Derivative Suits Committee. “First, it virtually eliminates the possibility of money damages for Rule 23(b)(2) classes, which have a lower hurdle for class certification. This holding was unanimous and may be the most significant issue from the decision,” says Cook.

Second, according to Cook, the decision eliminates dicta from a 1970s decision that class actions can be certified based purely upon allegations. “Dukes makes clear that the Court must examine the evidence to determine if Rule 23’s requirements are met and states that ‘significant proof’ is necessary (and likely requires that expert testimony at the class certification stage must meet the Daubert threshold),” Cook adds.

Third, Dukes resurrects the ‘commonality’ requirement, which had been essentially forgotten; the Court makes clear that there must be at least one important issue—in dispute—that is common to the class,” continues Cook. “What Dukes does not do, however, is to declare a per se rule against large classes; it just makes it much more difficult for a large class to satisfy the elements of Rule 23.”

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