The American Constitution Society recently hosted “The Future of Class Action Litigation after Wal-Mart v. Dukes.” The speakers included Professor Robin Effron, who recently discussed the implications of the case in the Westlaw Journal Expert Commentary Series, and Professor Adam Steinman of Seton Hall Law School, who contributed an amicus brief for the case.
Steinman opened the conversation, laying out the background of the case, which was the largest class action brought to the U.S. Supreme Court to date. Beginning in 2000, over 1.5 million female Wal-Mart employees sued the company on the grounds of gender discrimination. Due to complications concerning the unwieldy size of the class, the Court ultimately ruled in favor of Wal-Mart with a 5-4 vote.
Effron dissected the case’s main item of contention, federal civil procedure Rule 23(a), which includes four requirements that must be fulfilled in any class action suit. The plaintiffs believed they met the threshold of commonality, the requirement from 23 (a)(2). They argued that all members of the class were women who had experienced sexual discrimination by their employer, whether that came in the form of gender-biased corporate policies or mostly male managers who would not promote female hourly workers. Justice Scalia found fault with the plaintiff’s ability to satisfy the commonality portion of Rule 23(a), arguing in his opinion that it was impossible for all 1.5 million class members to truly share a common injury.
Furthermore, the Court also found issue with Dukes and Rule 23(b), which determines the category of relief a plaintiff will win once it has met the conditions of Rule 23(a). In the case of Wal-Mart v. Dukes, explained Steinman, the plaintiffs sought both monetary and injunctive relief, allowing the defendant to once again argue that a class that demands multiple forms of relief must not share a common injury.
The discussion concluded with a lively question and answer session that focused on how the Supreme Court’s ruling of this case will negatively affect future class actions. Steinman considered Justice Scalia’s opinion regarding Rule 23(a) as “most dangerous.” “How will anyone ever establish commonality from now on?” he posited. He offered, however, a silver lining. “Scalia’s opinion is at war with itself,” he noted, criticizing the Justice’s interpretation of Rule 23 (a). “There are always going to be individual questions but that doesn’t take off the table that one common question.”
Effron also felt that the results of the suit called for a restructuring of Title XII, which prohibits gender discrimination by employers. If the sex of the class members in Wal-Mart v. Dukes was not sufficient commonality, focusing on the members’ individual injuries was not a solution, she argued. “By demanding individualized justice to each member of the class,” she told the audience, “you’re denying justice for all.”