United Airlines, Incorporated v. Genise Kincannon, Individually and on Behalf of All Others Similarly Situated, et al.

Under Rule 23(a) and (b)(3), a class may be certified only if there are “common” questions. This Court has explained that putative class claims must depend on a “common contention” that “is capable of classwide resolution—which means that 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.” Wal-Mart Stores Inc. v. Dukes, 564 U.S. 338, 350 (2011). In other words, to be certified under Rule 23, a class must “generate common answers,” id.—either “yes” or “no”—for all class members at once. Below, the Fifth Circuit held that commonality (and as a result, predominance) was satisfied because the plaintiffs presented similar kinds of evidence the court thought a jury could accept. Yet because a jury could also reject that evidence for some class members while accepting it for others, the panel then directed the creation of a wholly novel three-stage process: (1) a “class rostering” phase to determine, person-byperson, who in the putative class satisfies a threshold, individualized merits element; (2) a liability phase on other elements and defenses; and (3) an individualized compensatory damages phase. Each phase could be litigated before a jury or juries, and backpay and punitive damages would be based upon a formula. The question presented is: In assessing commonality and predominance under Rule 23, is it sufficient that plaintiffs have a common theory and evidence that a jury could credit, even where rejecting that theory and evidence would not result in a classwide loss, but in individual liability determinations that differ across class members?