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Class Lessons
THE LANDMARK WAL-MART RULING HAS ITS LIMITS
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WheN The U.S. SUpreme
Court handed down Wal-Mart
Stores, Inc. v. Dukes this sum-
mer, defense lawyers hailed it as
a class action–killer. The block-
buster decision decertified a mas-
sive gender discrimination lawsuit
against one of the nation’s largest
private employers. And as pre-
dicted, many judges have relied
on Dukes to dismiss class actions
across the country. But plaintiffs
lawyers have been able to limit
the ruling’s impact in a number
of cases.
Justice Antonin Scalia’s major-
ity opinion clarified the rule of
civil procedure requiring that
class actions contain “questions
of law or fact common to the
class”—a past source of disagree-
ment among lower court judges.
Virtually every class action raises
some conceivable issue common
to all class members, the Court
reasoned. The federal rules re-
quire something more: a common
question that, if answered, will
resolve, in “one stroke,” an issue
“central to the validity of each
one of the claims.”
On top of that, the Court ruled
that in determining whether such
a question exists, judges can, and
should, delve into the evidence.
That’s where the plaintiffs in
Dukes stumbled. They could not
prove that a discriminatory policy
exists, at least on a nationwide
scale, the Court held.
J. SCO T T APPLEWHI TE/AP PHO TO
Betty Dukes (left) testified before Congress in June after the Dukes ruling.
cisco federal district court judge
maxine Chesney mentioned
Dukes when she rejected a pro-
posed class of more than 1 million
black and hispanic homeowners
allegedly harmed by Wells Fargo
& Company’s discriminatory loan
practices.
A michigan state court judge
also relied heavily on Dukes in
July when he withdrew his past
certification of a class action al-
leging that The Dow Chemical
Company negligently released a
hazardous chemical into a michi-
gan river floodplain. “Whether
and how the individual plaintiffs
were injured involves highly in-
dividualized factual inquiries,”
wrote Judge Stephen Borrello.
“Because of the need for such
highly individualized factual in-
quiries, plaintiffs cannot show
that there is a common conten-
tion that is capable of class-wide
resolution.”
In many recent cases, Dukes
has been the weight that tips the
scales toward decertification,
says Gregory mersol, a partner
at Baker & hostetler specializing
in class action defense. “Those
courts were heading toward de-
certification, and then Dukes gave
them a way to do it,” he says.
plaintiffs lawyers, for their part,
are arguing their way around
Dukes and downplaying its im-
pact outside the employment dis-
crimination arena. The very first
judicial opinion to cite Dukes,
published just two days after the
Supreme Court issued the ruling,
limited its applicability to a wage-
and-hour class action in New
York City. “The relevant facts
and circumstances in Wal-mart
have little bearing here,” wrote
Brooklyn federal district court
judge Steven Gold in his decision
