미 연방 민사소송규칙 상의 집단인증(Class certification) — Dukes v. Wal-Mart stores 판결을 통해서 본 미 연방대법원의 해석기준 변경을 통한 대표당사자소송 관련 정책의 수립 및 운영 — (Class certification under the Federal Rules of Civil Procedure: U.S. Supreme Court’s class action policy established and managed by heightening standards in Dukes v. Wal-Mart stores)

서지정보

· 발행기관 : 안암법학회
· 수록지 정보 : 안암법학 / 42호 / 349 ~ 398페이지
· 저자명 : 이진규

초록

Class certification is an unique procedural step for class actions. For a certain class to be certified, the class shoud satisfy all the requirements Federal Rules of Civil Procedure Rule 23 (a) and (d) set. Rule 23(a) calls for numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) devides class actions into three category and demands different requirements according to specific type of class actions. Because of these requirements class certification functions as a gate keeper to filter out lawsuits not suitable for a class action format; and sets grounds for a class action to proceed. In addition, once certified, the class action is more likely to be disposed through settlement due to settlement pressure to the defendnat and other reasons. In Dukes v. Wal-Mart stores, 5-4 decision that denied class certification for a proposed class, the majority opinion established a new standard for a commonality requirement. The new standard substatially considers strength of merits of the claim under the name of ‘rigorous analysis’; and focuses significantly on dissimilarities among class members. This case has numerous implications including: 1) the ‘dissimilarities approach’ of the majority opinion is doubtful when considering languages of Rule 23(b)(2) and (b)(3); 2) the decision manifests the Robert Court’s strong willingness to regulate frivolous lawsuits using stricter standards; 3) the new standard would practically bar class actions that has ‘too big’ classes; 4) the decision undermines case law that had prohibited consideration of merits at class certification stage; 5) the decision attempts to regulate class actions in federal courts in furtherance of Class Action Fairness Act of 2005 that attracted more cases to federal courts; 6) MDL does not seem to be an effective alternative to class actions when class certification is denied; and 7) the new standard in Wal-Mart decision would substatially limit Rule 23(b)(2) type anti-discrimination class actions.

영어초록

Class certification is an unique procedural step for class actions. For a certain class to be certified, the class shoud satisfy all the requirements Federal Rules of Civil Procedure Rule 23 (a) and (d) set. Rule 23(a) calls for numerosity, commonality, typicality, and adequacy of representation. Rule 23(b) devides class actions into three category and demands different requirements according to specific type of class actions. Because of these requirements class certification functions as a gate keeper to filter out lawsuits not suitable for a class action format; and sets grounds for a class action to proceed. In addition, once certified, the class action is more likely to be disposed through settlement due to settlement pressure to the defendnat and other reasons. In Dukes v. Wal-Mart stores, 5-4 decision that denied class certification for a proposed class, the majority opinion established a new standard for a commonality requirement. The new standard substatially considers strength of merits of the claim under the name of ‘rigorous analysis’; and focuses significantly on dissimilarities among class members. This case has numerous implications including: 1) the ‘dissimilarities approach’ of the majority opinion is doubtful when considering languages of Rule 23(b)(2) and (b)(3); 2) the decision manifests the Robert Court’s strong willingness to regulate frivolous lawsuits using stricter standards; 3) the new standard would practically bar class actions that has ‘too big’ classes; 4) the decision undermines case law that had prohibited consideration of merits at class certification stage; 5) the decision attempts to regulate class actions in federal courts in furtherance of Class Action Fairness Act of 2005 that attracted more cases to federal courts; 6) MDL does not seem to be an effective alternative to class actions when class certification is denied; and 7) the new standard in Wal-Mart decision would substatially limit Rule 23(b)(2) type anti-discrimination class actions.

참고자료

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