Private: Dukes v. Wal-Mart: The Class Wins Again and Again; Should the Supreme Court Join the Fray?

By Piper Hoffman. Ms. Hoffman is an employment attorney and writer. She blogs at piperhoffman.com.

Dukes v. Wal-Mart, the largest class action in history, continues its tortuous journey through the federal court system with a knock at the Supreme Court's door. Plaintiffs won class certification in the district court over six years ago, then won again before a Ninth Circuit Court of Appeals panel, then won again in a rehearing before the same panel, then won again after Wal-Mart got a rehearing en banc. With nowhere else to go, Wal-Mart has petitioned the Supreme Court for certiorari.

The Dukes class sues Wal-Mart for gender discrimination. The first paragraph of its Third Amended Complaint sum up its accusations:

Wal-Mart is the largest retailer in the world and the largest private employer in the United States ... There are two workforces at Wal-Mart. By far the largest workforce is female, which comprises over 72% of the hourly sales employees, yet only one-third of management positions. This workforce is predominantly assigned to the lowest paying positions with the least chance of advancement. The other workforce is male. This workforce is the reverse image of the female workforce-it comprises less than 28% of the hourly sales workers, yet holds two-thirds of all store management positions and over 90% of the top Store Manager positions. This disparate distribution of the genders is the result of purposeful discrimination and of practices that serve no reasonable business purpose yet have a disproportionate impact on women.

Wal-Mart's brief to the Supreme Court reads like the Hail Mary pass that it is. (Dukes's response to the petition is due September 24.) The company's attorneys shoved in every argument they could dream up, including repeating one of the Ninth Circuit dissenting opinions essentially in toto. But their primary theme can be summed up in one sentence: Wal-Mart is so big that bringing a class action against it would be unfair - to Wal-Mart.

Since that is not grounds for granting certiorari, Wal-Mart argues instead that the Supreme Court should take the case because of any number of disagreements among and even within the Circuits. But the en banc Ninth Circuit opinion, 603 F.3d 571, 582 (9th Cir. 2010), analyzes these alleged disagreements in depth and demonstrates that they are unworthy of certiorari. For instance, the district courts have demonstrated some confusion in following Miles v. Merrill Lynch & Co. (In re Initial Pub. Offerings Securities Litigation), 471 F.3d 24 (2d Cir. 2006), the case that requires courts to determine that all of the Rule 23 factors necessary for class certification are satisfied, even if the court must examine facts or questions that overlap with the merits in order to make that determination. While different circuits may have expressed their standards in different language, the Ninth Circuit shows that the Supreme Court already announced the necessary law in Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982).

A disagreement between the circuits that the en banc opinion acknowledges concerns when money damages predominate the final relief in a class action certified under Federal Rule of Civil Procedure 23(b)(2). Rule 23(b)(2) permits class certification only where "the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief...is appropriate respecting the class as a whole." Where the "appropriate final relief relates exclusively or predominantly to money damages," certification under 23(b)(2) is not available. Fed. R. Civ. P. 23(b)(2) advisory committee's note to 1966 amends (emphasis added). (A court may still certify a case if it satisfies one of the other prongs of Rule 23(b).)

The Second and Ninth Circuits adopted the test announced in Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001), which considers whether the plaintiffs' subjective intent in suing was primarily to win monetary damages. In contrast, the Fifth, Sixth, Seventh, and Eleventh Circuits adopted Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415-16 (5th Cir. 1998), which provides that "monetary relief predominates over other forms of relief ‘unless it is incidental to requested injunctive or declaratory relief.'" Dukes v. Wal-Mart, 603 F.3d 571, 616 (9th Cir. 2010) (quoting Allison at 415).

The Ninth Circuit en banc announces that, despite its earlier endorsement of Robinson, it "see[s] no need to employ either approach, which are both, essentially, glosses on the text of the Advisory Committee's Note's statement that Rule 23(b)(2) ‘does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.'" Dukes at 616. Instead the Court turns to the dictionary, looks up "predominant," and concludes that to be certified under Rule 23(b)(2), "a class must seek only monetary damages that are not ‘superior [in] strength, influence, or authority' to injunctive and declaratory relief." Id. (quoting Merriam-Webster's Collegiate Dictionary 978 (11th ed. 2004)).

And now there are three conflicting interpretations of Rule 23(b)(2). This split may catch the Supreme Court's eye, but it would be a shame if certiorari were granted here. The main point of this case would be overshadowed, and the rights of countless current and future individual plaintiffs to bring large corporate entities to justice would be gutted, if the courts used this procedural dickering to vindicate Wal-Mart's real defense: that it is too big for a group of individuals to compel it to answer for its violations in a court of law.

[image via wikimediacommons.org]

Access to Justice, Class actions, Labor and Employment Law, Supreme Court