Electronic Retailer - August 2011 - 46

A federal trial court in California granted class certification based on that showing, which the appellate court upheld. But on final review, the Supreme Court ruled that plaintiff’s gender discrimination claims did not present any common questions for class treatment and that an injunctive class could not be certified to pursue back-pay. Writing for the majority in a 5-4 decision, Justice Scalia emphasized the individual, subjective discretion over pay and promotion that Wal-Mart store managers exercise. The Court found that the case presented no common issues for a class, observing that members of the class  “held a multitude of different jobs, at different levels  of Wal-Mart’s hierarchy, for variable lengths of time,  in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed” and that “some thrived while others did poorly. They have little in common but their sex and this lawsuit.” That outcome startled no one because this court has grown increasingly skeptical of mega class actions involving millions of claims. But the grounds on which the case turned are surprising. Previously, Rule 23’s “commonality” requirement was not seen as a particularly high hurdle, and class action lawyers habitually cite cases about how Rule 23 requires only one common question to meet this “low threshold” and “easily satisfied” factor.

Dukes just raised the bar on commonality. It’s no longer enough to get a class certified with one common question – the answer must be common as well. Dukes impacts consumer class actions in other ways. It sets a high bar for the use of anecdotal evidence and expert testimony at the class certification stage. The plaintiffs’ experts, and a collection of affidavits about acts of discrimination suffered by Wal-Mart employees, were rejected by the Supreme Court. According to the decision, that evidence ultimately did not speak to the issue of whether individual pay and promotion decisions were infected by the alleged cultural bias, and it was therefore useless for determining whether the plaintiff’s case presented common issues for a class trial. This holding should apply with force in the consumer context. Too often when an expert surfaces in support of a consumer’s class certification motion, it’s usually a liability expert in disguise opining that the challenged practice is deceptive to consumers and therefore presents a common issue. Going forward, courts must apply more rigor to class certification experts. The Dukes decision also will forestall the abuse of injunction-only class rules to evade the rigors of damages class certification. It might even remedy the illogical difference in burdens that competitors and consumers face when challenging the same marketing practices in court. Traditionally, a competitor needs scientific evidence demonstrating that another’s ad is likely to deceive or confuse consumers, while the consumer herself need only plausibly allege that the practice has the capacity to deceive. The Dukes decision could be applied at certification to require consumer plaintiffs to demonstrate, via scientific survey evidence, whether a marketing practice caused injury to a consumer class is a common question with a common answer. The interface between a retailer and its employees generates a variety of experiences impacting wage and promotion decisions. Less so the retailer-customer interface, where the mass marketing of unilateral offers is aimed at promoting a uniform customer experience for the sake of efficiency and quality control. Still, many aspects of the consumer experience “after the sale” logically defy certification. Consumer disputes about program enrollments, cancelation fulfillment and financing eligibility raise issues about events and outcomes that vary case-by-case. Using the old presumptions favoring class actions, some courts have been willing to aggregate those claims in the past. Dukes should put a stop to that. It is no longer enough for class action lawyers to “raise the same question” in pursuit of class certification. A class will arise only if the same answer to the common question can be determined for the class in a single trial. Jeffrey D. Knowles and Thomas E. Gilbertsen are partners in Venable LLP’s Advertising, Marketing and New Media group. Knowles is chair of the group. Contact Knowles at (202) 3444860 or at jdknowles@venable.com. Contact Gilbertsen at (202) 344-4598 or at tegilbertsen@venable.com.

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Electronic Retailer - August 2011

Table of Contents for the Digital Edition of Electronic Retailer - August 2011

Calendar of Events
Your Association, Your Bottom Line
Industry Reports
FTC Forum
eMarketer Research Facebook Marketing:
IMS Retail Rankings The Top 25 Shows and Spots
Jordan Whitney’s Top Categories
Lockard & Wechsler’s Clearance & Price Index
Ask the Expert
Cover Story TVGoods Buys AsSeenOnTV.com
Come Face2Face at D2C
The Wired World of U.S. Hispanics
Real Truth in Advertising
Marketing for TV is Just the Beginning
Teleservices
Legal
Creative
Member Spotlight
Advertiser Spotlight
Bulletin Board
Advertiser Index
Classifieds
Rick Petry
Electronic Retailer - August 2011 - Cover1
Electronic Retailer - August 2011 - cover2
Electronic Retailer - August 2011 - 3
Electronic Retailer - August 2011 - 4
Electronic Retailer - August 2011 - 5
Electronic Retailer - August 2011 - 6
Electronic Retailer - August 2011 - Calendar of Events
Electronic Retailer - August 2011 - Your Association, Your Bottom Line
Electronic Retailer - August 2011 - 9
Electronic Retailer - August 2011 - Industry Reports
Electronic Retailer - August 2011 - 11
Electronic Retailer - August 2011 - 12
Electronic Retailer - August 2011 - 13
Electronic Retailer - August 2011 - FTC Forum
Electronic Retailer - August 2011 - eMarketer Research Facebook Marketing:
Electronic Retailer - August 2011 - 16
Electronic Retailer - August 2011 - 17
Electronic Retailer - August 2011 - IMS Retail Rankings The Top 25 Shows and Spots
Electronic Retailer - August 2011 - 19
Electronic Retailer - August 2011 - Jordan Whitney’s Top Categories
Electronic Retailer - August 2011 - 21
Electronic Retailer - August 2011 - Lockard & Wechsler’s Clearance & Price Index
Electronic Retailer - August 2011 - 23
Electronic Retailer - August 2011 - 24
Electronic Retailer - August 2011 - Ask the Expert
Electronic Retailer - August 2011 - Cover Story TVGoods Buys AsSeenOnTV.com
Electronic Retailer - August 2011 - 27
Electronic Retailer - August 2011 - 28
Electronic Retailer - August 2011 - 29
Electronic Retailer - August 2011 - 30
Electronic Retailer - August 2011 - Come Face2Face at D2C
Electronic Retailer - August 2011 - 32
Electronic Retailer - August 2011 - 33
Electronic Retailer - August 2011 - The Wired World of U.S. Hispanics
Electronic Retailer - August 2011 - 35
Electronic Retailer - August 2011 - 36
Electronic Retailer - August 2011 - 37
Electronic Retailer - August 2011 - Real Truth in Advertising
Electronic Retailer - August 2011 - 39
Electronic Retailer - August 2011 - Marketing for TV is Just the Beginning
Electronic Retailer - August 2011 - 41
Electronic Retailer - August 2011 - 42
Electronic Retailer - August 2011 - 43
Electronic Retailer - August 2011 - Teleservices
Electronic Retailer - August 2011 - Legal
Electronic Retailer - August 2011 - 46
Electronic Retailer - August 2011 - 47
Electronic Retailer - August 2011 - Creative
Electronic Retailer - August 2011 - 49
Electronic Retailer - August 2011 - 50
Electronic Retailer - August 2011 - Member Spotlight
Electronic Retailer - August 2011 - 52
Electronic Retailer - August 2011 - Advertiser Spotlight
Electronic Retailer - August 2011 - 54
Electronic Retailer - August 2011 - Advertiser Index
Electronic Retailer - August 2011 - Classifieds
Electronic Retailer - August 2011 - 57
Electronic Retailer - August 2011 - Rick Petry
Electronic Retailer - August 2011 - cover3
Electronic Retailer - August 2011 - cover4
Electronic Retailer - August 2011 - Outsert01
Electronic Retailer - August 2011 - Outsert02
Electronic Retailer - August 2011 - Outsert03
Electronic Retailer - August 2011 - Outsert04
Electronic Retailer - August 2011 - Outsert05
Electronic Retailer - August 2011 - Outsert06
Electronic Retailer - August 2011 - Outsert07
Electronic Retailer - August 2011 - Outsert08
Electronic Retailer - August 2011 - Outsert09
Electronic Retailer - August 2011 - Outsert10
Electronic Retailer - August 2011 - Outsert11
Electronic Retailer - August 2011 - Outsert12
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