Another Post-Dukes Decision Spells Doom For The "Subjective Discretion" Theory Of Classwide Discrimination

The post-Dukes class certification decisions keep rolling in, and the most recent demonstrates that class allegations based on the exercise of discretion cannot satisfy Rule 23(a)’s commonality requirement. As we recently analyzed on this blog, non-employment law decisions applying Dukes can provide strong support to employers defending against discrimination class actions. Yet another example is a new decision in In Re Countrywide Financial Mortgage Lending Practices Litigation, No. 08-MD-1974 (W.D. Ky. Oct. 13, 2011). 

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