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ERISA Class Certification in The Wake of Dukes And Amara

BY Darren E. Nadel
April 29, 2012

The U.S. Supreme Court issued two starkly different decisions in 2011 that together will shape (and, indeed, have already shaped) the analysis that courts must employ in determining whether to certify ERISA class actions: Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), and CIGNA Corp. v. Amara, 131 S. Ct. 1866 (2011). Dukes has, of course, clarified the standard for determining commonality in class actions and narrowed the circumstances in which plaintiffs may certify Federal Rule of Civil Procedure 23(b)(2) class actions. Amara ruled that a plaintiff must establish “actual harm” from alleged misrepresentations made about upcoming changes to pension plan benefits in order to obtain “appropriate equitable relief” under section 502(a)(3) of ERISA. Taken together, Dukes and Amara make class certification exceedingly difficult (though not impossible) in the ERISA context.

Background

Prior to Dukes, breach of fiduciary duty claims were commonly certified under Rule 23(b)(2), which permits certification of class actions where “injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Certification under Rule 23(b)(2) has traditionally been easier to obtain than under Rule 23(b)(3), which permits certification of claims for monetary relief where common issues predominate over individualized issues. In February 2012, however, the Second Circuit Court of Appeals became the first circuit court post-Dukes to address whether a Rule 23(b)(2) class action is the proper vehicle when the plaintiffs seek monetary recovery in addition to declaratory and injunctive relief. The Second Circuit said it was not.

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