The Supreme Court of the United States has now agreed to address two questions raised by the Ninth Circuit’s decision affirming certification of a “gargantuan” nationwide class of more than a million current and former Wal-Mart employees, Dukes v. Wal-Mart, 603 F.3d 571 (9th Cir. 2010).
The Court agreed to review two questions regarding Dukes v. Wal-Mart: (1) “Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) – which by its terms is limited to injunctive or corresponding declaratory relief – and, if so, under what Circumstances,” and (2) “Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).”
In Dukes the Ninth Circuit announced a new standard, allowing Rule 23(b)(2) certification if a class seeks “only monetary damages that are not ‘superior [in] strength, influence, or authority’ to injunctive and declaratory relief.” (Dukes, 603 F.3d at 616 (quoting Merriam-Webster’s Collegiate Dictionary 978 (11th ed. 2004).) The second question, whether the class certification ordered in Dukes was consistent with Rule 23(a), was most likely prompted by the debate between the parties, the Ninth Circuit majority and the dissenters about how class action commonality and typicality among a monstrous class of more than a million Wal-Mart employees in different jobs and in different stores could possibly exist. 603 F.3d at 652 (Ikuta, J., dissenting) (“Never before has such a low bar been set for certifying such a gargantuan class.”)
We hope the Court will use the case as an opportunity to rein in expansive use of Rule 23(b)(2) classes. Ultimately, the Court’s answer to the two questions listed above will affect class action practice in every area of substantive law.
The Court is likely to hear the case in March or April of 2011. We will keep you updated regarding this case following the hearing.