Choice of Law & Commonality: Failure to Establish Common Claim Elements Precludes Class Certification

In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court tightened the requirements for establishing “commonality” for class certification under Rule 23. After all, it’s easy enough to articulate an abstract “common question” in a putative class action: “For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice?” Wal-Mart, 131 S. Ct. 2541, 2551 (2011). But, according to Justice Scalia, such abstract questions no longer suffice: the “common contention . . . must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Unsurprisingly, this standard presents special challenges to certification of nationwide class actions involving state law claims. SeeCochran v. Volvo Group North America, LLC, No. 1:11-cv-927, 2013 WL 1729103, at *2-*3 (M.D.N.C. Apr. 22, 2013) (discussing problems, including constitutional and manageability concerns, associated with choice-of-law issues for nationwide breach of warranty claims).

The Cochran plaintiffs sought certification of a nationwide class of truck owners and lessees with warranty claims related to certain Volvo trucks. The Cochran plaintiffs asserted that the potential class members had substantially the same warranty and that two common “fact” questions existed: (1) did the trucks have common defects and (2) did Volvo fail to fix the defects? Seems fairly straightforward, right? Unfortunately for the Cochran plaintiffs, warranty claims are state law claims, and they failed to show either that the same law (or at least a common element) applied to breach of warranty claims throughout America or that one state’s law applied to all putative class members’ claims. Cf. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 370 (4th Cir. 2004) (recognizing that plaintiffs must identify and compare applicable states’ laws where choice-of-law issues impact certification decision). Without this information, the court could not determine whether “resolution of the defect and repair questions would resolve an issue that is central to the validity of the warranty claim,” precluding class certification. Cochran, 2013 WL 1729103, at *4. As the Cochran plaintiffs discovered, under the heightened Wal-Mart commonality standard, “evidence of defect and failure to repair is not, in the end, enough for class certification.” Id.