Breaking News: Walmart Stores, Inc. v. Dukes decided by Supreme Court; Reversed

I'll preface this brief post by noting that I have not had a chance to read the entire opinion, but the opnion in Walmart Stores, Inc. v. Dukes (June 20, 2011) was released this morning by the United States Supreme Court.  The Court reversed the Ninth Circuit and the District Court, finding that the matter was not suitable for class certification.  The core majority was authored by Justice SCALIA. ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined in that opinion, and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and III.  Justice GINSBURG authored an opinion concurring in part and dissenting in part.  BREYER, SOTOMAYOR, and KAGAN joined in Justice GINSBURG'S opinion.

Some key aspects of the holding are:

  • 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 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.
  • General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the same injury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof was absent here.
  • Claims for monetary relief may not be certified under Rule 23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief.
  • The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify eliminating Rule 23(b)(3)’s procedural protections, and creates incentives for class representatives to place at risk potentially valid monetary relief claims.

Justice Ginsburg is concerned that the majority imported too much of the "predominance" analysis into the Rule 23(a) requirement that common questions of law or fact must exist:

The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication.

Slip op., Ginsburg concurring and dissenting, at 9.  Otherwise, Ginsburg agrees that the class should not have been certified under Rule 23(b)(2) but would  have saved the issue of whether certification was appropriate under Rule 23(b)(3) for the District Court on remand.

The opinion looks as though it will prove to have the greatest impact on cases of this type.  While the Rule 23(a) construction seems to be inconsistent with well-settled standards, the balance of the opinion was predictable, given the massive size of the class.

Wal-Mart Stores v. Dukes set for oral argument before Supreme Court

The Unites States Supreme Court moves right along once it grants a writ of certiorari.  Wal-Mart Stores v. Dukes has been set for oral argument on Tuesday, March 29, 2011.  We won't have to wait that long before (potentially) receiving some guidance from the current Supreme Court about class action standards.  The only uncertainty is whether the Court will limit its analysis to sex discrimination cases or offer more widely applicable guidelines.

Thanks to SCOTUSblog for the argument schedule.

Wal-Mart ramps up spin control following decision in Dukes v. Wal-Mart Stores, Inc.

Following the decision in Dukes v. Wal-Mart Stores, Inc. (9th Cir. Apr. 26, 2010), Wal-Mart is already in full spin control mode.  In a statement released through PR Newswire, Wal-Mart expressed how happy it was that a class action involving hundreds of thousands of employees would proceed against it:

We are pleased that the court agreed with our position on several critical issues. The court significantly reduced the size of the originally certified class by as much as two-thirds. Finding that the trial court 'abused its discretion,' the appeals court also set aside the ruling on punitive damages.

Perhaps the rosy glow will fade when Wal-Mart realizes that several issues are simply returning to the trial court for further analysis.  For example, punitive damages may very well be certified on terms identical to the original order:  "With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3)."  Slip op., at 6147.  Don't say anything to Wal-Mart about this just yet; even Wal-Mart deserves some happiness, no matter how brief.

Breaking News: Ninth Circuit issues en banc decision in Dukes v. Wal-Mart Stores, Inc.

The Ninth Circuit has issued its long-awaited, en banc Opinion in Dukes v. Wal-Mart Stores, Inc. (9th Cir. Apr. 26, 2010).  Of course, I have no idea if you were actually waiting for it, so I am only referring to myself.  As for how long it took to issue the Opinion, it took some time to write an Opinion that is about 136 pages long.  The majority described the holding as follows:

Plaintiffs allege that Wal-Mart, Inc., discriminates against women in violation of Title VII of the Civil Rights Act of 1964. After detailed briefing and hearing, the district court certified a class encompassing all women employed by Wal-Mart at any time after December 26, 1998, and encompassing all Plaintiffs’ claims for injunctive relief, declaratory relief, and back pay, while creating a separate opt-out class encompassing the same employees for punitive damages. We affirm the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

Slip op., at 6146-47.  The massive opinion and dissent are simply too long for me to thoroughly cover this morning.  However, Circuit Judge Graber offered this brief comment on the entirety of the opinion:

GRABER, Circuit Judge, concurring: 

The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding:

Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies.

If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a class. Certification does not become an abuse of discretion merely because the class has 500,000 members. I therefore concur fully in the majority opinion.

Slip op., at 6237-38.

I will write more on this Opinion as soon as I am able, but a quick perusal suggests that this decision will have a lasting impact on certification motions in the Ninth Circuit.  Unless the U.S. Supreme Court wants to weigh in on this decision.