1. Lewis Wiener Sutherland, Asbill & Brennan LLP Washington, DC Class Actions After Dukes: A Whole New World, or Same Song, Different Verse? Christopher Willis Ballard Spahr LLP Atlanta, GA

2. Three Things That Don't Go Together "Jumbo Shrimp" "Near Miss" "Class Action Fairness"

3. Why Care About Class Actions After Concepcion? Continued resistance to class action waivers in California (Sanchez v. Valencia Holding Co., Cal. App. 2d Dist. Oct. 24, 2011) Arbitration Fairness Act CFPB "study" of consumer arbitration Euphoria may be short lived

4. What Dukes Means Plaintiff has the burden of proof, and examining the merits is permissible at the certification stage Heightened standard for commonality Incidental monetary relief under Rule 23(b)(2) Likely application of Daubert at class certification stage No trial by formula/statistical sampling

5. The Plaintiff's Burden of Proof Class certification requires evidentiary proof of elements of Rule 23 Plaintiff cannot rely on pleadings alone, and has the burden of persuasion under Rule 23 Merits issues are not “off limits” Court must evaluate evidence and make findings of fact supporting certification

6. The New Commonality Standard Common issues must show that claims can be proven by collective evidence Allegation of common harm, assertion of common legal issues, or factual themes, are not sufficient Dukes’ commonality analysis very similar to predominance standard under Rule 23(b)(3) in some circuits Now, same stringent standard applies in Rule 23(b)(1) and (b)(2) cases

7. Rule 23(b)(2): Injunctive and Declaratory Relief Only Distinction between 23(b)(2) and 23(b)(3) Prior to Dukes, most circuits had held that “equitable” monetary relief could be pursued under Rule 23(b)(2) – like back pay or restitution Dukes held that Rule 23(b)(2) permits only classwide injunctive and declaratory relief, not other “equitable” relief Plaintiffs cannot use Rule 23(b)(2) to recover damages disguised as “restitution” or “disgorgement”

8. Daubert at Class Certification Junk is junk 9 th Cir refused to apply Daubert. Supreme Court holding suggests the same standard applies at class certification stage as in merits analysis

9. Sampling is Disapproved No trial by formula What evidence would be required of a plaintiff pursuing an individual cause of action; why should anything less be required in a class proceeding A class cannot be certified on the premise that the defendant will not be entitled to litigate its defenses to individual claims

10. Take-Aways From Dukes and Other Cases Greater clarity about evidentiary burden to sustain certification Confirmation that Rule 23 is a procedural rule only Certain avenues for “masking” individual issues are cut off, but others remain Will state courts follow Dukes? Common issues still rule the day