When the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011), it restructured the commonality analysis under Federal Rule of Civil Procedure 23(a)(2) in ways that remain incompletely absorbed by the lower courts. For plaintiffs' class action practitioners, Dukes is not simply a case about employment discrimination. It is the master framework through which every proposed class's "common question" must now be analyzed, and understanding both its demands and its limits is essential to building certifiable consumer class actions in 2025.
What Dukes Actually Held
The plaintiffs in Dukes were approximately 1.5 million current and former female Walmart employees who alleged that Walmart's policy of allowing local managers nearly unlimited discretion over pay and promotion decisions produced a company-wide pattern of sex discrimination. The Ninth Circuit, in a deeply fractured en banc opinion, affirmed certification of a Rule 23(b)(2) class.
The Supreme Court reversed. Justice Scalia's majority opinion generated two discrete holdings that practitioners must keep analytically separate.
First: Commonality under Rule 23(a)(2) requires more than a common question. The Court held that commonality requires the plaintiff to demonstrate that the class members' claims "depend upon a common contention" that is capable of "classwide resolution." Critically, the common contention must be one where "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." 564 U.S. at 350. It is not enough that all class members have suffered a violation of the same provision of law. What matters is whether there is a common answer — a single resolution of the central question — that drives the litigation.
The majority concluded that Walmart's policy of allowing local manager discretion, absent a company-wide discriminatory directive, was insufficient to provide the "common answer" that commonality requires. The very discretion exercised by 3,400 different managers in 3,400 different ways was the mechanism of the alleged discrimination — but that mechanism was inherently individualized. There was no "glue holding the alleged reasons for all those decisions together," such that resolving Walmart's liability to one woman would resolve its liability to all.
Second: Rule 23(b)(2) class actions cannot include individualized monetary claims as anything more than incidental to injunctive relief. The Court held that where monetary relief sought in a Rule 23(b)(2) class is not "merely incidental" to the injunctive and declaratory relief sought — where, in other words, the individual plaintiffs have individualized monetary claims — those claims must proceed under Rule 23(b)(3), with its attendant predominance and superiority requirements, not as (b)(2) class claims. This second holding is independent of commonality and has its own consequences for hybrid relief classes.
The "Glue" Requirement
The most influential aspect of Dukes for post-certification practice is what has come to be called the "glue" requirement: the need for significant proof of a "common policy or practice" that provides the factual connective tissue linking the class members' individual experiences into a single question susceptible to class-wide resolution.
In Dukes, the plaintiffs offered statistical evidence of pay and promotion disparities and anecdotal testimony from approximately 120 women. The Court found this insufficient not because statistics are inherently inadequate proof of commonality, but because the statistics did not identify a company-wide discriminatory policy that explained the disparities. The Court quoted a social science framework — "social framework analysis" — as being too general to establish specific company-wide bias, and criticized the anecdotal testimony for covering too small a fraction of the nationwide workforce to establish a pattern attributable to corporate policy rather than local manager idiosyncrasy.
The "glue" requirement, as subsequently developed in the lower courts, demands that plaintiffs identify a specific corporate decision, policy, or practice that is the common source of injury for all class members. That policy need not be formal or written — informal corporate cultures, standardized algorithmic systems, or uniform contractual terms can satisfy the requirement — but it must be identifiable and must link to the harm suffered by each class member.
Application to Consumer Class Actions
Dukes has been most consequential not in the employment context where it arose, but in consumer class actions under consumer protection statutes, where defendants routinely argue that individualized facts about each consumer's experience, reliance, or damages defeat commonality.
*Where Dukes is frequently over-invoked. Defense counsel routinely cite Dukes for the proposition that any class involving multiple individual factual circumstances lacks the "common answer" required. This is a misreading. Dukes does not require that every aspect of the case be resolved in one stroke — only that there be at least one common question whose single resolution is "central to the validity" of all claims. A consumer class action based on a standardized product defect, a uniform contract term, or a common deceptive practice presents a common question with a common answer (did the product defect exist? was the term unconscionable? was the practice deceptive?) that satisfies Dukes* even if individual damages vary.
The Eleventh Circuit's treatment. The Eleventh Circuit has applied Dukes with rigor but without reflexive hostility to class certification. In consumer cases, the court has focused on whether the challenged conduct — a standardized form contract, a uniform pricing scheme, an algorithmically applied decision — is the kind of common policy or practice that provides the Dukes "glue." Where the challenged conduct is genuinely uniform (e.g., the same contractual language appears in every class member's policy), the Eleventh Circuit has generally found that the common question satisfies Dukes. Where the challenged conduct varies by individual employee decision or by individual consumer circumstances, certification has been denied on commonality grounds.
FDUTPA and similar statutory claims. Florida Deceptive and Unfair Trade Practices Act claims present a useful test case. Where a defendant made a uniform misrepresentation in its advertising or product packaging, the question "was this representation deceptive to a reasonable consumer?" is a single question capable of a single answer. Dukes is satisfied. Where the claim rests on individualized oral representations made by salespersons, the "glue" is absent. Structuring FDUTPA class cases around the uniform written or digital representation — rather than the allegedly deceptive conduct of individual agents — is essential to surviving Dukes.
Post-Dukes Commonality Strategies
Plaintiffs' counsel should approach the Dukes commonality analysis as both a pleading and an evidentiary challenge.
1. Identify the common policy with precision before filing. The motion for class certification will require "significant proof" of the common policy — not just an allegation. Pre-filing investigation and discovery strategy should be oriented toward documenting the corporate decision, algorithm, or form contract that is the common source of harm. Documentary evidence — policy manuals, standard contract templates, marketing materials, training materials, system specifications — is more durable than statistical evidence or anecdotal accounts.
2. Retain expert testimony that maps the common policy to the class members. In employment and insurance contexts, statistical experts can demonstrate that the challenged policy had a uniform adverse effect across the class. In product defect cases, engineering experts can establish that a single design or manufacturing defect is present in all units of the class product. The expert's function post-Dukes is not merely to quantify damages but to establish the causal link between the common policy and each class member's injury — providing the "one stroke" that Dukes demands.
3. Separate Rule 23(a)(2) and Rule 23(b)(3) analyses. Dukes elevated commonality to a more demanding standard, but it did not merge commonality with predominance. Rule 23(b)(3)'s predominance inquiry — whether common questions "predominate" over individual ones — is a separate and additional requirement for damages classes. A case that easily satisfies Dukes commonality (clear common policy) may still fail predominance if individualized damages calculations overwhelm the common questions. And conversely, a case that satisfies Dukes may not need Rule 23(b)(3) at all if the relief sought is injunctive under Rule 23(b)(2) and monetary relief is truly incidental.
4. Frame the class issue as a "common contention" resolvable in the common evidence. The rhetorical framing matters at the certification stage. The class question should be articulated in terms of whether defendant's specific identified policy or practice was unlawful — not whether each class member was harmed. The former is a single question with a single answer; the latter dissolves into individual inquiries. "Did Defendant's standard form contract contain an unconscionable limitation of liability?" is a Dukes-satisfying question. "Was each class member damaged by Defendant's conduct?" is not.
5. Rigorously scrutinize the class definition for implicit individualization. Post-Dukes, defendants challenge class definitions by arguing that the class definition itself requires individualized inquiry to determine membership (an "ascertainability" argument in the Eleventh Circuit's terminology) or that the class definition incorporates the merit of the individual claim. Class definitions that require individualized factual determinations to identify who is in the class are a separate source of certification failure, distinct from commonality but often conflated with it.
Where the Law Is Moving
Fifteen years after Dukes, its most contested question is how much "significant proof" is enough to establish a common policy at the class certification stage. Some courts have essentially converted the commonality inquiry into a mini-trial on the merits of the common question — scrutinizing whether the alleged common policy actually exists and actually caused harm. Other courts have held that at the certification stage, plaintiff need only demonstrate that the common question exists and is capable of common resolution, not that it will ultimately be resolved in the plaintiff's favor.
The Supreme Court's subsequent decision in Comcast Corp. v. Behrend, 569 U.S. 27 (2013), extending the rigorous analysis to the damages model at certification, has reinforced the trend toward merits-adjacent class certification scrutiny. The net effect is that class certification has become a more expensive and evidentiary-intensive process — which advantages well-resourced defendants but also rewards well-prepared plaintiffs who develop the factual record before filing.
Conclusion
Dukes did not kill the consumer class action. It demanded more of the common question. For plaintiffs' counsel, the lesson is to build cases around identifiable common corporate policies — uniform contracts, standardized algorithms, form communications — rather than around aggregated individual experiences. The "glue" is there in most strong consumer class cases; the practitioner's job is to find it and document it before the motion for class certification is filed.
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Informational only. Not legal advice. No attorney-client relationship is created by reading this post. Consult a licensed attorney in your jurisdiction.