Today, the Supreme Court will meet and discuss, amongst other issues, whether to grant certiorari in Wal-Mart v. Dukes, 605 F.3d 571 (9th Cir. 2010). Below, a deeply divided court (6/5) affirmed the certification of the largest employment class action in history, with over a million plaintiffs. On August 25, 2010 Wal-Mart petitioned the United States Supreme Court for certiorari.
Betty Dukes and other women sued Wal-Mart claiming Title VII sex discrimination as to pay and managerial promotions. The trial court certified a class of all women employed by any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to the challenged policies and practices. The class included approximately 1.5 million women who worked at any Wal-Mart store. The 9th Circuit affirmed and reversed in part.
The court upheld certification as to plaintiffs who were employed at the time the complaint was filed, and as to their claims for injunctive relief, declaratory relief, and back pay. The court remanded with respect to claims for punitive damages and the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed. The court found that there was significant evidence of centralized corporate-wide practices and policies of excessive subjectivity in personnel decisions and sexual stereotyping, statistical evidence of gender disparities, and anecdotal evidence of gender bias. This raised a common question of whether there was discrimination based on “a single set of corporate policies.”
The five dissenting judges argued that class certification was improper because the named plaintiffs do not have “significant proof” of a Wal-Mart policy or practice “that would make it possible to conclude that 1.5 million members of the proposed class suffered similar discrimination.” They stated that “the evidence does not come close to meeting requirements for demonstrating commonality and typicality.”
Wal-mart’s petition cites a number of complaints with the decision. One of the principal issues highlighted by the petition is a three-way split among the Circuits concerning the relationship between Federal Rules of Civil Procedure 23(b)(2) (which on its face applies only to claims for injunctive or corresponding declaratory relief) and 23(b)(3) (which permits opt-out and imposes strict requirements of manageability, but applies to punitive damages and monetary relief). The Dukes court suggested that plaintiffs may seek to combine the two to obtain a more easily manageable class under 23(b)(2) and yet still recover punitive damages and monetary relief as would be permissible only under 23(b)(3), even though the requirements of neither Rule is met.
Wal-Mart’s second main issue is that its obvious and best defense to the claims is to demonstrate that its decisions in each of the millions of challenged instances were motivated by legitimate, non-discriminatory reasons. Below, Wal-Mart was barred from asserting that defense, however, because it would take too long to address each and every plaintiff and would not be “feasible” in the class action context. The petition refers to this tactic as “stripping” Wal-Mart’s defense. It argues that if it is not “feasible” for a class action to accommodate the defense, then the case should not be certified in the first place.
The Supreme Court’s decision on whether to take the case will likely come on Monday. Based on its enormous size alone (the largest class action ever), there is a good chance it will be accepted.
