Litigation: Applying the Dukes commonality standard in non-employment-related cases

Commonality can turn on the medium through which claims are made

The U.S. Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011) has impacted millions of employees in their pursuit of class action claims against their employers. The Dukes decision articulated the standard for establishing the commonality necessary to secure class certification in a manner that has been seen to raise the bar to class certification under Federal Rule of Civil Procedure 23.

While Dukes focused its analysis of establishing commonality in the context of a Title VII employment discrimination claim, the impact of Dukes will be felt by businesses beyond the employment context. The Dukes standard broadly applies to the class certification commonality analysis. And since Dukes, many courts have applied the standard in non-employment related cases, including consumer claims regarding deceptive advertising, unfair business practices and unfair debt collection practices claims, to name a few. What can we take away from these cases about the hurdles to establishing commonality that will be presented to putative class action plaintiffs?

In Mazza v. American Honda Motor Co., Inc., No. 09-55376, 2012 WL 89176, *12 (9th Cir. Jan. 12, 2012), the court noted that “even if the class was restricted only to those who purchased or leased their car in California, common issues of fact would not predominate in the class as currently defined because it almost certainly includes members who were not exposed to, and therefore could not have relied on, Honda's allegedly misleading advertising material.”

Establishing commonality in unfair debt collection practices claims also may turn on the medium through which the collection efforts were made. Where a uniform notice or mailing is distributed to each member of the putative class, commonality may be found, as in Aho v. AmeriCredit Financial Services, Inc., No. 10cv1373, (S.D. Cal. July 25, 2011), where the same form notice that was allegedly defective was sent to all putative class members. 


author image

Anthony Lathrop

Anthony T. Lathrop is a member of Moore & Van Allen PLLC, in Charlotte, N.C., and can be reached at 704-331-3596 or

Bio and more articles

Join the Conversation

Advertisement. Closing in 15 seconds.