This morning, on December 6, 2010, the US Supreme Court granted certiorari in the Dukes v. Wal-Mart case on the first question raised in the petition (whether Rule 23(b)(2) certification may include monetary remedies) and a second question that the court fashioned (whether class certification under Rule 23(b)(2) is consistent with Rule 23(a).  In Dukes v. Wal-Mart, Inc., 603 F.3d 571 (9th Cir. 2010), the Ninth Circuit affirmed the certification of a class of female Wal-Mart employees who alleged that Wal-Mart discriminated against them in compensation and promotions. Continue reading “US Supreme Court grants certiorari in Dukes v. Wal-Mart”

As mentioned previously on this blog, in September 2010, Wal-Mart filed a petition asking the U.S. Supreme Court to review the Ninth Circuit’s decision in Dukes v. Wal-Mart certifying a class of more than a million current and former female workers who allege they were discriminated against.

On October 21, 2010, the counsel for the class of Wal-Mart employees filed an Opposition to Wal-Mart’s Petition to the U.S. Supreme Court for a writ of certiorari.  The employees’ counsel argued that the writ should be denied because the decision is interlocutory and two fundamental questions remain unresolved. Continue reading “Dukes v. Wal-Mart; Employees file opposition to Wal-Mart’s Petition for Certiorari”

As I suggested in a post on this blog in June, on August 25, 2010, Wal-Mart filed a petition asking the US Supreme Court to review the Ninth Circuit’s decision in Dukes v. Wal-Mart to allow that case to proceed as a class action.  The Ninth Circuit affirmed the trial court’s decision to certify a sex discrimination class action involving more than one million current and former female workers. Continue reading “Wal-Mart asks US Supreme Court to Review Class Certification in Dukes v. Wal-Mart”

In Betty Dukes v. Wal-Mart, Inc., 603 F.3d 571 (9th Cir. 2010), the Ninth Circuit affirmed the certification of a class of female Wal-Mart employees who alleged that Wal-Mart discriminated against them in compensation and promotions.  The Dukes decision is newsworthy because it is the largest gender discrimination class ever certified.  Because of this, and because commentators suggest that there are substantial differences among the circuits, it is likely that the US Supreme Court will grant certiorari.

However, just because the class is large does not justify granting certiorari.  Wal-Mart is a huge employer, and just because it is a large employer should not qualify it for different treatment under the law.  Further, the purported split among the circuits is more imagined than real.  I agree with the Dukes court that consensus is rapidly emerging among the circuits, and that the statement that there are “substantial differences” in the circuits seems to create a distinction where none exists.  The majority in Dukes followed longstanding precedent when clarifying the standard trial courts must follow when considering class certification.  Although some suggest otherwise, the standard announced in Dukes is nothing really new.

Continue reading “Ninth Circuit Reaffirms the Standard of Review for Class Certification in Dukes v. Wal-Mart”