Dukes v. Wal-Mart: Supreme Court Reverses the 9th Circuit and Hands Employers a Victory

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In another 5-4 ruling as unsurprising as it is consequential, the U.S. Supreme Court today reversed the Ninth Circuit’s affirmance of a district court’s grant of class certification, and in doing so likely set more difficult standards for prospective class actions to meet the Rule 23 commonality requirement. Like the AT&T v. Concepcion decision before it, today’s decision in Dukes v. Wal-Mart has attracted considerable notice in the popular press as well as specialized legal publications, and prompted the New York Times to organize reader comments around the query “A Death Blow to Class Action?”

As to whether “there are questions of law or fact common to the class,” the Court divided along the identical ideological lines in its five-to-four array as in AT&T v. Concepcion. Writing for the majority, and elevating an argument frequently advanced by defendants opposing class certification to the status of controlling law, Justice Antonin Scalia reasoned that the only corporate policy that the plaintiffs’ evidence convincingly showed was Wal-Mart’s policy of giving discretion to its local supervisors over employment matters, about which he stated, “[o]n its face . . . that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.”

Companies are widely expected to adopt policies against having uniform employment practices that violate the law. Finding that somewhat unsatisfactory, Patricia A. Barasch, President of the National Employment Lawyers Association, reacted to the decision by noting that “[t]oday’s judgment will make discrimination more prevalent unless Congress acts to reverse yet another misguided opinion by the Court.”

The full Dukes v. Wal-Mart decision is available here.