Posted on: 6/20/2011
Mark A. Fahleson
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Just this morning, the United States Supreme Court released its long-awaited opinion in Wal-Mart v. Dukes. The Court unanimously reversed the Ninth Circuit, holding that the class certification was not consistent with the Federal Rule of Civil Procedure 23(a) governing class actions. The class of plaintiffs consisted of women who worked at Wal-Mart and allegedly suffered discriminatory pay and promotion practices at any point since December 1998, including those not hired until years after the suit was filed in 2001.
Writing for the Court, Justice Antonin Scalia concluded that the millions of plaintiffs and their claims did not have enough in common: “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why I was disfavored.”
Justices Ginsburg, Breyer, Sotomayor and Kagan concurred in part and dissented in part, agreeing that the class should not have been certified under 23(b)(2), but that a class of this type may be certifiable under Rule 23(b(3) if the plaintiffs show that common class questions “predominate” over issues affecting individuals and that a class action is “superior” to other modes of adjudication.
While this decision is clearly a big victory for the nation’s largest private employer and the business community at large, does the Dukes decision signal that the class action pendulum has swung back toward a rational, reasonable use of Rule 23 actions? What does Dukes mean for DRI members and our clients?