Dukes v. Wal-Mart: Where Does the Obama Administration Stand?

The United States Supreme Court’s review of the Ninth Circuit’s en banc decision in Dukes v. Wal-Mart, 603 F.3d. 571 (9th Cir.) (en banc), cert granted, 131 S. Ct. 795 (Dec. 6, 2010) (No. 10-277), has sparked a great deal of interest and debate among the plaintiff’s bar and big business. Apart from more detailed analysis, this is the first in a periodic series of updates concerning the status of Dukes and what others are saying.

In a recent article, the Wall Street Journal speculated that, in an effort to appear more “business friendly,” the Obama Administration could deploy the Solicitor General to argue for a ruling on Dukes that entails the reversal of class certification and the implementation of new Rule 23 jurisprudence. Characterizing “how [President Obama’s] Justice Department comes down on” Dukes as a prominent “test” of the President’s overtures to business, the Journal is likely engaging more in wishful thinking than well-founded analysis. The full article is available here. Despite the State of the Union Address having been peppered with broadly positive statements about economic efficiency and unassailable critiques of waste (the president’s salmon anecdote particularly connected on this score), the administration’s substantive record doesn’t imply the disposition toward Dukes that the Journal suggests. First, there is no indication that the President is inclined to alienate his base by taking a radically anti-class action position. Moreover, this is an administration that has substantially expanded enforcement actions by the Department of Labor. Still, with the dynamics of the 2012 election already beginning to emerge, we will watch with interest how the administration decides to handle Dukes.

Briefs & Deadlines

Wal-Mart’s brief was filed on January 20, 2011. You can view it here. Respondents’ brief was filed on February 22, 2011. You can view it here.

The Dukes oral argument is set for March 29, 2011.

Interesting Case Facts:

• 1.6 million class members
• Filed in 2001
• The Dukes Ninth Circuit panel: Stephen Reinhardt, Michael Daly Hawkins, Susan P. Graber, Raymond C. Fisher, Richard A. Paez, and Marsha S. Berzon (majority); and Alex Kozinski, Pamela Ann Rymer, Barry G. Silverman, Carlos T. Bea, and Sandra S. Ikuta (dissent)
• Plaintiff’s Counsel: Brad Seigelman (Impact Fund); Joseph M. Sellers (Cohen Milstein Sellers & Toll PLLC)
• Defense Counsel: Ted Boutros (Gibson Dunn)
• 24 Amicus Briefs have been filed with the Supreme Court, all in support of Wal-Mart