In Wal-Mart Stores, Inc. v.
Dukes, the Supreme Court ruled that a class in a massive gender discrimination
case had been improperly certified under Federal Rule of Civil Procedure
23(b)(2), both because common questions were lacking under Rule 23(a)(2), and
because the class had sought individualized monetary relief in addition to
injunctive and declaratory relief.
During the last few years, the
Supreme Court has been extraordinarily active on the procedure front, with most
of the Court's opinions creating procedural obstacles to plaintiffs, especially
in the class action context. Wal-Mart Stores, Inc. v. Dukes, S. Ct. 2541, 180 L. Ed.
2d 374, 2011 U.S. LEXIS 4567 (June 20, 2011), continues this trend. There, the
Supreme Court ruled that a class in a massive gender discrimination case had
been improperly certified under Federal Rule of Civil Procedure 23(b)(2), both
because common questions were lacking under Rule 23(a)(2), and because the
class had sought individualized monetary relief in addition to injunctive and
declaratory relief. The Court reversed a 6-5 en banc Ninth
Circuit opinion that had affirmed the district court's certification of a
nationwide class of a million and a half women. See Georgene
Vairo on Dukes v. Wal-Mart Stores, Inc. [accessible by lexis.com subscribers], 2010 Emerging Issues 5306.
The en banc Dukes opinion generated a vigorous debate about the
appropriate scope of class actions in general and employment discrimination
class actions in particular. Thus, it came as no surprise that the Supreme
Court granted certiorari. That the Court reversed the class action
determination came as no surprise either, but the sweeping nature of the
opinion already has generated significant debate about the extent to which the
Court has erected virtually insurmountable barriers to class certification.
Moreover, while the Court split 5-4 on the commonality issue, it was
surprisingly unanimous on the back pay issue.
Facts and Procedural Background. Both the district court and the Ninth
Circuit had approved certification of a class action employment discrimination
suit under Rule 23(b)(2). The plaintiff class comprised about 1.5 million
women, current and former employees of the defendant, Wal-Mart. They alleged
that local supervisors exercised their discretion over pay and promotion
matters so as to illegally discriminate against female employees. The essential
theory of their case was that Wal-Mart's strong and uniform "corporate
culture" facilitated the stereotyping of women which, in turn, infected
the discretionary decision-making of each of the defendant's managers, thereby
making every woman at the company the victim of one common discriminatory
practice. The class sought, in addition to injunctive and declaratory relief,
an award of back pay.
Requirements for Certification. Under Rule 23(a), a class may be
certified only if the party seeking certification shows that (1) the class is
so numerous that joinder of all members would be 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. Additionally, the class must satisfy at least one of the three
subsections of Rule 23(b). Here, the plaintiff class relied on Rule 23(b)(2),
which applies when "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."
Access the full version of "Wal-Mart Stores, Inc. v.
Dukes: Whither Class Actions?" with your lexis.com ID. Additional fees
may be incurred.
If you do not have a lexis.com ID, you can purchase this commentary and additional Emerging Issues Commentaries from the LexisNexis Store.
Lexis.com subscribers can access the complete
set of Emerging Issues Analyses for Labor & Employment Law the
and the Labor & Employment Area of Law page.
For more information about LexisNexis
products and solutions connect with us through our corporate site.