Supreme Court Conducts Oral Argument In Wal-Mart Stores v. Dukes

As we previously reported here, on April 26, 2010, in Dukes v. Wal-Mart Stores, Inc., a divided Ninth Circuit Court of Appeals decided 6-5 en banc to affirm the decision of the trial court to grant class certification in a discrimination lawsuit alleging Wal-Mart Stores discriminates against its women employees. The nationwide class is reputed by the Los Angeles Daily Journal to number upward of 1.6 million women employees, which would make the class the largest class in United States history.

In 2001, the Impact Fund, a Berkley, California based organization many plaintiff's attorneys donate money to, filed on behalf of Betty Dukes and other current or former employees of Wal-Mart a lawsuit alleging Wal-Mart discriminates against its women employees regarding promotions and pay practices in violation of Title VII of the Civil Rights Act of 1964. The trial court later certified a class consisting of "all women employed by Wal-Mart at any time after December 26, 1998."

On Appeal, the Ninth Circuit Court of Appeals affirmed the trial court's grant of class certification but remanded to the trial court for further consideration the issue of whether to certify for class treatment the plaintiffs' claims for punitive damages and the issue of whether to certify an additional class or classes consisting of women who were no longer employed by Wal-Mart when the lawsuit was filed.

As we previously reported here, on December 23, 2010, only 17 days after it granted Wal-Mart's petition for review on December 6, 2010, the Supreme Court set the case for oral argument on March 29, 2011.

Today, the Supreme Court conducted the oral argument of the case. The issues on review are (1) whether claims for monetary relief can be certified as a class action under Federal Rule of Civil Procedure 23(b)(2) and (2) whether the class certification ordered under rule 23(b)(2) is consistent with rule 23(a).  

This case has the potential to have broad impact on class action litigation nationwide, and will report the Court's decision when it is issued.

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