Supremes May Kill Class Action Species in Walmart Appeal

The U.S. Supreme Court today granted review of a Ninth Circuit ruling that allowed a class of California women to pursue sex discrimination claims against Walmart.  Order List, Dec. 6, 2010, at 2.

The Ninth Circuit held en banc that the case could move ahead as a class action under Rule 23(b)(2) on the women's claims for injunctive, declaratory, and back pay relief.  The 6-5 court also sent the case back to the district court for a decision on whether the class's claims for punitive damages could proceed on a class basis under Rule 23(b)(2) or 23(b)(3).  Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (en banc).

The Court's ruling in Dukes will likely settle a split in the courts of appeals over whether and when courts may certify class actions that seek money together with injunctive or declaratory relief.  Some circuit courts, such as the Second and the Ninth, tend to hold that even a claim for big monetary relief can fit within the Rule 23(b)(2) framework so long as the class also seeks serious injunctive and declaratory relief.  Other circuits, notably the Fifth, almost categorically disallow classes where the plaintiffs ask for any cash other than as purely incidental relief.

Comments

[Wayne Morse]

Fine summary, Barry, especially for readers who seek more than the cursory view of a journalist or snarky comments routinely posted on other blogs. Regarding issue description, you introduced the nail to the hammer. This case is important to those of us who practice Employment Law. If the Supreme Court does not rule in favor of Wal-Mart, it will be a surprise to many. Thank you.

[Blawgletter]

Yes, Wayne, many people will go into at-least-mild shock if the Court puts its okie dokie on the Ninth Circuit's 6-5 yepper to class cert in Dukes v. Wal-Mart. And reversal will kill the economics of class actions seeking back pay/disgorgement type equitable relief. About all the plaintiffs could get will come in the form of an injunction or declaration, neither of which produces dollars for a common fund award of fees and exepenses. The risk won't justify the potential reward.