The U.S. Supreme Court hears oral arguments today in Wal-Mart Stores, Inc., v. Betty Dukes, et al., potentially the largest employment discrimination class-action suit in history and a case of great interest to major manufacturers, as well. The Court’s “question presented” provides a concise summary of the issues.
In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.
The questions presented are:
I. Whether 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.
II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.
Wal-Mart’s attorneys from Gibson Dunn — including Theodore J. Boutrous, Jr., and Ted Olson — state their case strongly in the petitioner’s brief.
The [Ninth Circuit’s] certification order is flatly inconsistent with Rule 23(a)’s prerequisites. The class members— potentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the country— assert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses. The named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent. These intractable problems are compounded by a virtually boundless class definition that produces an across-the-board class pervaded by conflicts among its members. This kaleidoscope of claims, defenses, issues, locales, events, and individuals makes it impossible for the named plaintiffs to be adequate representatives of the absent class members. (continue reading…)
