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Supreme Court Reverses Certification Of Women's Class Action Against Wal-Mart

WASHINGTON, D.C. - (Mealey's) The U.S. Supreme Court on June 20 reversed certification of a class of more than 1 million current and former female employees of the nation's largest retailer after finding that certification was not consistent with Federal Rule of Civil Procedure 23(a) (Wal-Mart Stores, Inc. v. Betty Dukes, et al., No. 10-277, U.S. Sup.).


"Rule 23(a)(2) requires a party seeking class certification to prove that the class has common 'questions of law or fact.'  Their claims must depend upon a common contention of such a nature that it 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.  Here, proof of commonality necessarily overlaps with respondents' merits contention that Wal-Mart engages in a pattern or practice of discrimination.  The crux of a Title VII [of the Civil Rights Act of 1964] inquiry is 'the reason for a particular employment decision,' Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 876, and respondents wish to sue for millions of employment decisions at once.  Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members' claims will produce a common answer to the crucial discrimination question," Justice Antonin Scalia wrote for the court. 

The justices all also agreed that the employees' back pay claims were improperly certified under Rule 23(b)(2). 

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel Anthony Alito Jr. joined in the opinion.  Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan partially joined in the opinion. 

The court, however, was divided on whether class certification also was barred under Rule 23(b)(3)'s requirement that common questions "predominate" over individuals ones.  Although the majority opined that the employees failed to establish the existence of a common question, Justice Ginsburg, in her partially dissenting opinion, held that since the question of whether the employees met the specific requirements of Rule 23(b)(3) was not before the court, that matter should be reserved for consideration and decision on remand. 

Justices Breyer, Sotomayor and Kagan joined in Justice Ginsburg's opinion.   

On June 8, 2001, Betty Dukes, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine Kwapnowski and Edith Arana sued Wal-Mart in the U.S. District Court for the Northern District of California, seeking to represent a class of approximately 1.6 million of its employees at 3,400 stores across the United States.  

The plaintiffs claim that the Bentonville, Ark., company made discriminatory decisions based on gender in determining female employees' pay and eligibility for promotions, resulting in billions of dollars in damages. 

On June 22, 2004, Judge Martin Jenkins certified a class of all current and former employees of Wal-Mart who worked at its U.S. stores at any time since Dec. 26, 1998.  On Dec. 11, 2007, a Ninth Circuit U.S. Court of Appeals panel asked that Judge Jenkins limit the class to exclude workers who were not employed by Wal-Mart at the time the plaintiffs filed their first amended complaint on June 19, 2001. 

On April 26, 2010, the en banc Ninth Circuit affirmed the panel's 2007 ruling by a vote of 6-5. Wal-Mart then petitioned the high court.  The justices agreed Dec. 6 to hear the appeal.  Oral arguments were held March 29. 

[Editor's Note:  Full coverage will be in the June 22 issue of Mealey's Class Actions.  In the meantime, the order is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #43-110622-012Z.  For all of your legal news needs, please visit] 

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