LEGAL ALERT
June 20, 2011
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Wal-Mart Stores, Inc. v. Dukes: Supreme Court Reshapes Class Action
Certification
In vacating this morning what some regarded as history’s largest business class action, the Supreme
Court’s landmark opinion in Wal-Mart Stores, Inc. v. Dukes considerably tightens the criteria for class
certification in all would-be class actions while confining Fed. R. Civ. P. 23(b)(2) class certification to
cases in which essentially only declaratory or injunctive relief is sought, without monetary relief. The
certification of Rule 23(b)(2) classes in federal cases involving claims for backpay or money damages
thus appears to be impermissible; those cases now will have to meet the stricter criteria of Rule 23(b)(3).
The (b)(2) section of the Court’s opinion, significantly, was unanimous. The Court’s new and more
exacting interpretation of the Rule’s general commonality requirement was endorsed by five justices.
Background
The district court had certified under Rule 23(b)(2) a nationwide class of more than one million current
and former Wal-Mart employees who claimed sex discrimination in Wal-Mart’s alleged “policy” of allowing
local managers discretion in employment decisions. The Court of Appeals for the Ninth Circuit affirmed,
finding, among other things, that the plaintiffs’ claims for backpay were suitable for (b)(2) certification
because the claims for monetary relief did not “predominate” over the requests for declaratory and
injunctive relief. The Ninth Circuit described “predominance” in this context as “superior[ity in] strength,
influence, or authority,” aggravating an existing split among the Courts of Appeals.
Last December, the Supreme Court granted Wal-Mart’s petition for certiorari on the question of “[w]hether
claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its
terms is limited to injunctive or corresponding declaratory relief—and if so, under what circumstances.”
The Court also directed the parties to brief and argue the question of “[w]hether the class certification
ordered under Rule 23(b)(2) was consistent with Rule 23(a).”
Here are the highlights of today’s far-reaching opinion:
Holding Applicable to All Classes—Commonality Requires Common Questions with
Capacity for Common Answers
Justice Scalia’s opinion, joined by four other justices, invigorates the commonality requirement in
Rule 23(a)(2) that is applicable to all three types of federal class actions. The Court held that the ritual
recital of common questions that is seen in every class action complaint is insufficient to establish
commonality. The common questions instead must have the capacity to have common answers to satisfy
the requirement. In a key passage, the Court explained:
Reciting these questions is not sufficient to obtain class certification.
Commonality requires the plaintiff to demonstrate that the class members “have
suffered the same injury,”. . . This does not mean merely that they have all
suffered a violation of the same provision of law. Title VII, for example, can be
violated in many ways—by intentional discrimination, or by hiring and promotion
criteria that result in disparate impact, and by the use of these practices on the
part of many different superiors in a single company. Quite obviously, the mere
