Duking It Out in Antitrust Price-Fixing: Class Actions After Dukes

Jay Himes, William Reiss, Aug 15, 2011

In Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court rejected class certification in a gargantuan gender discrimination case against Wal-Mart. The primary issue, as the Supreme Court framed it, was whether the showing by the plaintiffs-present and former female employees-met Rule 23(a)(2)’s “commonality” requirement. More specifically, could the litigation be said to present “questions of law or fact common to the class” where the plaintiffs did not demonstrate an express Wal-Mart policy or practice of discriminating against women, but instead showed, at most, only that: (1) Wal-Mart granted discretion to thousands of store managers to make pay and promotion decisions in a subjective manner; and (2) the company’s corporate culture and personnel practices made it “vulnerable” to gender discrimination. The Supreme Court’s five-justice majority held that this was not enough to show commonality, and that the lower courts had, accordingly, erred in certifying a class. The four dissenting justices expressed the view that the majority’s rejection of certification for lack of commonality “import[ed] into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment,” where “the questions of law or fact common to class members [must] predominate over any questions affecting only individual members.”

Dukes may well have significant implications for Title VII civil rights class actions, particularly those in which c

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