Ham v. Swift Transp. Co., Inc.: What defense counsel can learn from a class certified under Wal-Mart

Much has been already said about the Supreme Court’s landmark decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).  From its clarification of commonality to its implicit recognition of a plaintiff’s burden of proof at the certification stage, counsel, commentators and courts all acknowledge that Wal-Mart significantly altered the class action landscape. 

The true legacy of Wal-Mart, however, is only now being written by the lower courts whose task it is to apply the decision and to determine how, if at all, prior precedent can be harmonized.  The challenge is significant because the case forces a re-evaluation of concepts that rarely received the type of critical analysis that is now required. 

A few of the significant take-aways from Wal-Mart are these: 

  • The plaintiff’s burden of proof has been clarified;
  • “Commonality” requires common facts that yield common answers; and
  •  Affirmative defenses matter.

So, is Wal-Mart making a difference in the way the courts analyze class certification under Rule 23?  How many classes are being certified?  Are the courts applying the lessons of Wal-Mart or just paying lip service?

In the coming weeks, On The Radar will explore the cases decided in the Sixth Circuit to see how the courts are applying Wal-Mart.  While the numbers provide some insight, the substantive analyses of many of the recent decisions reflect greater attention to the specific factual showings required to evaluate the Rule 23 criteria.

In this article, we provide a discussion of the recent case of Ham v. Swift Transp. Co., Inc., 275 F.R.D. 475 (W.D. Tenn. 2011), which illustrates that the precepts of Wal-Mart do not impede certification of classes under the right circumstances.  The analysis set forth in Ham underscores the point that thoughtful application of the Wal-Mart principles does not foreclose class certification as some have predicted.  It also provides important insights for those defending class actions.

To read the full article discussing Wal-Mart and its application in Ham v. Swift, click here.

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