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ERISA Class Certification in The Wake of Dukes And Amara

By Darren E. Nadel and Allison R. Cohn

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.

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