On January 27, 2011, 10 amicus briefs were filed with the U.S. Supreme Court in support of the Defendant in Dukes, et al. v. Wal-Mart.
While amicus briefs are not unusual in Supreme Court appeals, the number of amicus briefs filed in the Dukes case is unusual, and manifests the high-stakes which employers and the plaintiffs’ class action bar confront in this litigation.
Seyfarth Shaw submitted amicus briefs on behalf of Costco Corp. [click to link to Costco brief], and the Society of Human Resource Management and the HR Policy Association [click to link to SHRM brief].
Of course, by now, most of our readers know that the Ninth Circuit’s interpretation of Rule 23 in the 6 to 5 en banc decision in Dukes – reported at 603 F.3d 571 (9th Cir. 2010) (view ruling) – affirmed an earlier class certification order in the largest employment discrimination class action ever certified. The Ninth Circuit upheld an earlier panel decision certifying a class action gender discrimination lawsuit challenging Wal-Mart’s pay and promotions practices. The full Ninth Circuit ruled that the U.S. District Court for the Northern District of California did not abuse its discretion in finding that the large and diverse class – encompassing approximately 1.5 million female employees, both salaried and hourly with a range of positions, who are or were employed at one or more of company’s 3,400 stores across the country – was united by a complex of company-wide discriminatory practices against women where plaintiffs presented expert opinions, factual evidence, statistical evidence, and anecdotal evidence showing a corporate policy and common pattern of discrimination imposed on female employees nationwide.
While the Ninth Circuit’s decision may not have transformed Rule 23 law, it has changed the landscape for employment class actions. Dukes presents the Supreme Court with the opportunity to elucidate how much, for purposes of Rule 23(a), class members must have in common for a class action to be certified and the extent to which under Rule 23(b)(2) claims for money damages impact certification.
The amicus briefs assert that as to certain issues relative to plaintiffs’ claims against Wal-Mart, the Ninth Circuit’s Rule 23 class certification analysis erred in permitting the plaintiffs to rely upon statistics aggregated above the decision-making level, permitting the plaintiffs to rely upon external labor markets in a promote-from-within case, permitting the plaintiffs to rely upon an abstract sociological theory of stereotyping without first showing how that theory applies to actual workplaces, and permitting the plaintiffs to seek monetary damages under Rule 23(b)(2), which is primarily designed for injunctive relief.
Plaintiffs’ merits brief is due on February 21, 2011. Oral argument is now set for March 29, 2011.