By Arthur Silbergeld and Jessica Boar
Article: On June
20, 2011, the Supreme Court reversed the Ninth Circuit's decision in Dukes v.
Wal-Mart, a death knell for one of the most expansive class actions in history.
It would have included approximately 1.5 million current and former female
Wal-Mart employees who claimed gender discrimination under Title VII of the
Civil Rights Act of 1964.
In December 2010, the Court granted Wal-Mart's petition for certiorari.
It agreed to hear Question I presented by the petition: "Whether
claims for monetary relief can be certified under Federal Rule of Civil
Procedure 23(b)(2) and if so, under what circumstances," and fashioned its
own second question for the parties to brief: "Whether the class
certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."
Rule of Civil Procedure 23(b)(2) permits a class to be certified where
"the party opposing the class has acted or refused to act on grounds that
apply generally to the class, so that final injunctive relief or corresponding
declaratory relief is appropriate respecting the class as a whole." While
the statutory language does not address the possibility of monetary relief, the
Advisory Committee's notes on Rule 23(b)(2) state that Rule 23(b)(2) "does
not extend to cases in which the appropriate final relief relates exclusively
or predominantly to money damages."
The meaning of this standard is critical, because certifying a class pursuant
to Rule 23(b)(2) is less expensive, time-consuming and simpler than tackling
the Rule 23(b)(3) requirements.
Unlike Rule 23(b)(3), Rule 23(b)(2) does not require notice to members of the
class to give them the opportunity to "opt out" and be excluded from
the class (although the district court in Dukes allowed such an option
for class members seeking punitive damages). This raises due process
concerns, as all individuals in the class are automatically bound by a court's
decision and do not have the opportunity to individually pursue their own
claims. Moreover, plaintiffs do not have to demonstrate that questions of law
or fact predominate and that a class action is the superior means of resolving
their dispute. Rather, they simply have to satisfy the factors of Rule
23(a)(1): that (1) the class is so numerous that joinder of all members is
impracticable, (2) there are questions of law or fact common to the class, (3)
the claims or defenses of the representative parties are typical of the claims
or defenses of the class; and (4) the representative parties will fairly and
adequately protect the interests of the class.
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Arthur F. Silbergeld is an employment litigation partner in the
Santa Monica and Los Angeles offices of Bingham McCutchen LLP. Mr.
Silbergeld counsels employers in all aspects of employment law, and
defends clients in wage and hour class action and individual wrongful
termination, discrimination, disability, and harassment litigation. A
Fellow of The College of Labor & Employment Lawyers, he has
extensive bench and jury trial experience in federal and California
courts. He can be reached at email@example.com or (310) 255-9077.Jessica S. Boar is
an employment litigation counsel in the Santa Monica and Los Angeles
offices of Bingham McCutchen LLP. Ms. Boar counsels and represents
employers in all aspects of employment law, including discrimination and
harassment, wage and hour issues, and restrictive covenants and trade
secrets. She may be contacted at firstname.lastname@example.org or (310) 255-9067.