The Dukes v. Wal-Mart saga – which has been going strong for more than a decade – has made headlines in recent weeks in light of the oral argument held before the Supreme Court on March 29, 2011. The case is newsworthy to the general public due to its sheer magnitude – it could involve approximately 1.5 million class members and billions of dollars in back pay – as well as the issues of discrimination against women. But it is the procedural issues that are of interest to attorneys who represent businesses, as well as in-house counsel, due to the likely significant impact the decision will have on class action litigation.
The claims, brought under Title VII of the 1964 Civil Rights Act, allege that women employed by Wal-Mart are paid less than men, despite having higher performance ratings and greater seniority, and receive fewer promotions to management positions than men. The Ninth Circuit affirmed the district court’s certification of a Rule 23(b)(2) class of all women employed by Wal-Mart at any time after December 26, 1998, with respect to claims for injunctive relief, declaratory relief, and back pay. Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010).
The Supreme Court granted Wal-Mart’s petition for writ of certiorari on the following questions: (1) “[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” and (2) “[w]hether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 795, 795 (2010); Wal-Mart Stores, Inc. v. Dukes, 2010 WL 3355820 (Aug. 25, 2010) (petition).
Both the plaintiffs’ and defense bars are eager to see whether and how the Supreme Court will address significant class action issues.