Class Action Alert: The Future of Class Action Suits After Wal-Mart v. Dukes
http://www.mintz.com/newsletter/2011/Advisories/1209-0611-NAT-LIT/web.htm[6/24/2011 11:18:26 AM]
Class Action Alert
JUNE 23‚ 2011
The Future of Class Action Suits After Wal-Mart v.
Dukes
BY KEVIN M. MCGINTY, DANIEL T. PASCUCCI, ARI N. STERN, AND NATHAN R. HAMLER
In a historic decision, the Supreme Court decertified a plaintiff class in Wal-Mart Stores, Inc. v.
Dukes,1 which asserted claims on behalf of 1.5 million female Wal-Mart employees alleging that Wal -
Mart discriminated against women on matters of pay and promotion.2 The Court’s decision definitively
resolves three important issues of class action law:
1. The Court held that plaintiffs now bear a heightened burden under Rule 23(a )(2) to
show that there are questions of fact and law common to the class as a whole,
particularly where the class claims concern the independent conduct of numerous
individuals in multiple locations throughout the country.
2. The Court reaffirmed that it is permissible to address merits questions at the class
certification stage to the extent necessary to determine whether the requirements of
Rule 23 have been met.
3. The Court ruled that claims for back pay are not proper under Rule 23(b)(2), which
governs classes seeking injunctive relief, and cast substantial doubt on whether Rule
23(b)(2) ever permits certification of classes that seek money damages.
The Supreme Court’s decision has far-reaching implications for class action practice that extend well
beyond employment discrimination cases.
Plaintiffs’ Claims
The three named plaintiffs in Wal-Mart claim to have been the victims of adverse decisions on pay,
promotions or demotions solely or primarily because they are women. The plaintiffs filed suit in the
Northern District of California under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1, et
seq, which prohibits employers from engaging in gender-based discrimination. Their complaint
asserted claims on behalf of a putative class of current and former female Wal -Mart employees who
worked in hourly and salaried positions at the conglomerate’s retail stores throughout the country. 3
The plaintiffs alleged that women employed at Wal-Mart: (a) received lower pay than men in
comparable positions, even when those women had longer tenure with the company and received
better performance evaluations; and (b) obtained “fewer—and wait[ed] longer for—promotions to in -
store management positions that men.” 4
The Proceedings Below
In 2004, the trial court granted plaintiffs’ motion to certify a class under Rule 23(b)(2), which permits
