LEGAL ALERT
December 6, 2010
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Wal-Mart v. Dukes: Supreme Court to Review Certification of “Gargantuan”
Class
This morning the Supreme Court of the United States agreed to address two questions raised by the
Ninth Circuit’s decision affirming certification of a nationwide class of more than a million current and
former Wal-Mart employees, Dukes v. Wal-Mart, 603 F.3d 571 (9th Cir. 2010).
The Court agreed to review the first of two questions presented in Wal-Mart’s petition for certiorari:
“Whether 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 did not grant Wal-Mart’s petition as to the second question presented –
“Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the
Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23” – but directed the
parties to brief and argue a more narrow question: “Whether the class certification ordered under Rule
23(b)(2) was consistent with Rule 23(a).”
The first question presented in the Wal-Mart petition, concerning the availability of monetary relief in class
actions certified under Rule 23(b)(2) rather than under Rule 23(b)(3) (which requires that common issues
predominate), invites the Court to address a three-way Circuit split, the third way having its genesis in the
Ninth Circuit’s Dukes opinion. The Fifth, Sixth, Seventh and Eleventh Circuits allow Rule 23(b)(2)
certification of claims seeking monetary relief only when the monetary relief sought is “incidental” to the
requested injunctive or declaratory relief, such that the monetary relief “flow[s] directly from liability to the
class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Allison v. Citgo
Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998); see also Reeb v. Ohio Dep’t of Rehab. & Corr., 435
F.3d 639, 649-50 (6th Cir. 2006); Cooper v. Southern Co., 390 F.3d 695, 720 (11th Cir. 2004); Jefferson
v. Ingersoll Intern. Inc., 195 F.3d 894, 899 (7th Cir. 1999). The Second Circuit has rejected the Allison
standard, applying instead an “ad hoc” approach focusing on the plaintiff’s subjective intent with respect
to the relative importance of monetary relief. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147,
164 (2d Cir. 2001). In Dukes the Ninth Circuit announced a new standard, allowing Rule 23(b)(2)
certification if a class seeks “only monetary damages that are not ‘superior [in] strength, influence, or
authority’ to injunctive and declaratory relief.” Dukes, 603 F.3d at 616 (quoting Merriam-Webster’s
Collegiate Dictionary 978 (11th ed. 2004)). As pointed out in Wal-Mart’s petition for certiorari, Rule
23(b)(2) itself says nothing at all about monetary relief, and Rule 23(b)(2) does not require that class
members be afforded an opportunity to opt out of the class (though the Dukes order included such a
provision).
The second question the Court will consider – whether the class certification ordered in Dukes was
consistent with Rule 23(a) – may have been prompted by the debate between the parties (and between
the Ninth Circuit majority and the dissenters) about the existence of commonality and typicality among a
“gargantuan” class of more than a million Wal-Mart employees in different jobs in different stores. 603
F.3d at 652 (Ikuta, J., dissenting) (“Never before has such a low bar been set for certifying such a
gargantuan class.”) The plaintiffs argued, essentially, that Wal-Mart has a centralized “policy” that allows
subjective decision-making, which could in turn produce sex-based discrimination. 603 F.3d at 611-12.
In support of that contention the plaintiffs submitted evidence about centralized Wal-Mart policies (none of
which was claimed to be inherently discriminatory), 603 F.3d at 601; statistics purporting to suggest sex
discrimination at the regional level (but not the store level, at which subjectivity was claimed to operate),
603 F.3d at 604; and 120 anecdotal reports, 603 F.3d 610. The Ninth Circuit majority found plaintiffs’
