Wal-Mart v. Dukes: Updated Reading List on Class Action Impact & Analysis

The Supreme Court’s June 21, 2011 decision in Wal-Mart Stores Inc. v. Dukes is a landmark case that will stimulate a torrent of interpretation and analysis. Here is a look at some of the legal analysis we’ve received so far, as well as pre-decision background. We will continue to update this reference list as we receive more law firm updates in the coming days:

The Upshot: What Wal-Mart v. Dukes Means for Future Aggregate Litigation (Sedgwick LLP)

“The Supreme Court’s decision overturning the certification of the massive gender discrimination class in Wal-Mart v. Dukes [pdf] has been well-publicized. We go behind the headlines, therefore, to offer a few educated guesses as to what the case will mean for the future of class actions and other forms of aggregate litigation.” Read more »

Wal-Mart Stores, Inc. v. Dukes: Supreme Court Strikes Down Nationwide Sex Discrimination Class Action (Dechert LLP)

“The Court’s decision puts an end to what it referred to as ‘one of the most expansive class actions ever’ and requires heightened scrutiny of class actions in all areas of the law, including mass torts and antitrust. Read more »

Ouch! Supreme Court Wal-Mart Decision Is a Blow to Plaintiffs (Constangy, Brooks & Smith, LLP)

“[T]he Court affirmed that members of a putative class must have enough in common with each other that it makes sense to treat them as ‘one’ for purposes of the litigation. The Court also said that individualized claims for relief, including monetary damages and injunctions, must proceed under rules that allow putative class members to ‘opt out’and that provide procedural safeguards for defendants.”Read more »

No Certification in Massive Wal-Mart Class Action (Barger & Wolen)

“The primary evidence of the alleged uniform corporate practice consisted of statistical evidence of salaries and promotions heavily favoring male employees and anecdotal reports of female employees, along with the testimony of a sociologist who conducted a ‘social’ analysis of Wal-Mart’s corporate culture.” Read more »

 Wal-Mart Defeats Largest Class Action for Gender Discrimination (Fenwick & West LLP)

All Employers benefit from reduced risk of class claims arising out of subjective decisions of managers.    Read more »

Reining in the Mega-Class Action: The Supreme Court Sides with Wal-Mart (Morrison & Foerster)

“Plaintiffs alleged that the corporate culture at Wal-Mart was permeated with gender bias, which in turn infected the pay and promotion decisions of local managers. But a majority of the Court was troubled by the seeming contradiction of a uniform policy that was supposedly composed of the subjective decision making of literally thousands of local supervisors. With this tension in mind, the Supreme Court blocked the class action because the plaintiffs had not produced enough evidence of a company-wide discriminatory pay and promotion policy.” Read more »

United States Supreme Court Denies Class Certification Status in Wal-Mart Stores, Inc. v. Dukes (Womble Carlyle Sandridge & Rice, PLLC)

In denying certification to the proposed class, the Court held that questions common to the class sufficient to allow certification must relate to the same injury, which is more than the same violation of law, but must be of ‘such a nature that determination of its truth or falsity will resolve an issue to the validity of each one of the claims in one stroke.’” Read more »

Dukes v. Wal-Mart: Supreme Court Announces New Class Action Standards That Will Substantially Curtail Employment Discrimination Class Actions, As Well As Consumer, Antitrust, and Other Class Actions (Morgan Lewis)

“[T]he Court held that the commonality requirement is not met by ‘generalized questions’ that do not meaningfully advance the litigation and is not met where named plaintiffs and members of the purported class have not suffered the ‘same injury.’ In addition, in a unanimous decision, the Court found that claims for “individual monetary damages,” including back pay, could not be certified under Rule 23(b)(2). This decision provides defendants in class actions with a variety of tools to defeat efforts to certify large class actions involving disparately situated plaintiffs.” Read more »

Analysis: The U.S. Supreme Court’s Decision in Wal-Mart Stores, Inc. v.Dukes Will Substantially Change Several Types of Class Actions and Class-Based Labor and Employment Suits (Jackson Walker)

“Apart from the noteworthy result of preventing the largest employment discrimination lawsuit in United States history from going forward, the case is important for the effects it will have on a broad range of class actions and employment discrimination suits. The Wal-Mart decision may make it more difficult for many types of class-based suits to proceed.” Read more »

Wal-Mart Stores, Inc. v. Dukes: Supreme Court Reshapes Class Action Certification (Sutherland Asbill & Brennan LLP)

“In vacating…what some regarded as history’s largest business class action, the Supreme Court’s landmark opinion in Wal-Mart Stores, Inc. v. Dukes considerably tightens the criteria for class certification in all would-be class actions while confining Fed. R. Civ. P. 23(b)(2) class certification to cases in which essentially only declaratory or injunctive relief is sought, without monetary relief. The certification of Rule 23(b)(2) classes in federal cases involving claims for backpay or money damages thus appears to be impermissible…” Read more »

UPDATE: Supreme Court Decertifies Class In Dukes v. Wal-Mart (McNees Wallace & Nurick LLC)

“Betty Dukes and her two co-plaintiffs had alleged a nationwide pattern of discriminatory pay and promotion practices by the company, despite its published policy of non-discrimination. However, the Court unanimously disagreed and overruled the Ninth Circuit Court of Appeals, which had allowed the case to proceed as a class action. The decision created what may be viewed as a higher burden of proof for establishing class action status.” Read more »

Supreme Court Rules Against Large Sex Discrimination Class Action (Katz, Friedman, Eagle, Eisenstein, Johnson)

“Quoting a lower court judge, the Supreme Court stated that class members ‘held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed… . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.’” Read more »

Legal Alert: Supreme Court Rejects Nation-Wide Sex Discrimination Class Action (Ford & Harrison LLP)

“The Court also held that the plaintiffs’ back pay claims should not have been certified under Federal Rule of Civil Procedure 23(b)(2). This is significant because it means that plaintiffs requesting back pay in Title VII discrimination claims may now be required to seek certification under the more demanding procedures of Rule 23(b)(3).” Read more»

Supreme Court De-Certifies Largest Employment Discrimination Class Action In History (Bryan Cave)

“A unanimous Court concluded that the class’ request for backpay amounted to a damages class that could not be certified under Federal Rule of Civil Procedure 23(b)(2) (which addresses injunctions and declaratory relief). The matter now returns to the lower courts where the plaintiffs and their counsel may seek to certify narrower classes or may pursue their claims individually.” Read more »

Supreme Court, in Wal-Mart Employment Discrimination Case, Changes the Landscape of Class Action Litigation (Duane Morris LLP)

“This ruling will make it more difficult for plaintiffs to bring nationwide class action claims, as the Court noted that class actions are an “exception” to the general rule that litigation should be brought only by named parties. Through this decision, the Supreme Court has changed the landscape of class action litigation, since courts are now expected to require more evidence of commonality before certifying a class of plaintiffs.” Read more »

Thanks, Supremes! Wal-Mart v. Dukes Roundup (Constangy, Brooks & Smith, LLP)

“The Supreme Court has taken some of the wind out of those sails by requiring that claims based on disparate employment decisions be litigated individually (or, at least, as multi-plaintiff non-class claims, which also require individualized proof).” Read more »

Supreme Court Rejects Massive Employment Class Action: Wal-Mart Stores, Inc. v. Dukes (Morrison & Foerster LLP)

“This decision will certainly affect exposure in employment discrimination cases, but also provides defendants with additional arguments in opposing any proposed class, especially classes brought under Federal Rules of Civil Procedure 23(b)(1) or (b)(2).” Read more »

Wal-Mart Stores, Inc. v. Dukes, et al. – An Un”Common” Result? (Richard Scharlat)

“U.S. Supreme Court Addresses Commonality and ‘Injunction Class’…Requirements in Reversing Certification of Employee Gender Discrimination Class.” Read more »

Pre-Decision reviews:

Dukes v. Wal-Mart: Supreme Court Justices Debate Merits of Class Certification Discriminatory Pay & Promotion Claims (McNees Wallace & Nurick LLC)

Ms. Dukes alleged that despite the company’s non-discrimination policy, the Arkansas-based employer paid their female managers at lower rates than their male counterparts on a nationwide scale and women were promoted less often than men…During oral argument, the issue of certifying the class of female employees became the focal point of what many view to have been one of the liveliest oral arguments before the United States Supreme Court in years. Read more »

Alert: Dukes v. Wal-Mart Stores: Closer Analysis of Key Issues and Lessons for Employers (Miller & Martin PLLC)

Further Analysis of Key Legal Issues and Lessons for Employers. Read more »

It Should Be An Interesting Couple Of Weeks (Dechert LLP)

“Last but certainly not least, the Court has yet to decide the mother of all class action cases, Dukes v. WalMart, No. 10-277. As we discussed in our prior Dukes post, the Court is almost certain to decide the scope of Fed. R. Civ. P. 23(b)(2) in cases where a purportedly “injunctive” class also includes a large monetary relief component.” Read more »

Targeting Employers For Gender-Based Pay And Promotion Discrimination: The Next Big Thing? (Wilson Sonsini Goodrich & Rosati)

“Preventing and defending claims of gender based pay and promotion discrimination is fast emerging as the latest challenge for employers seeking to reduce litigation risks. That these claims could be “the next big thing” is clear from recent jury verdicts, pending legislation in Congress, and headline-grabbing court decisions…” Read more»