Co-authored by Gerald L. Maatman, Jr. and David B. Ross

As readers of our Blog know, Dukes, et al. v. Wal-Mart Stores is one of the most closely watched cases in years given the stakes for employers in employment discrimination class actions. The oral argument before the U.S. Supreme Court is set for March 29, 2011. As the argument date approaches, the case has garnered significant press – even overseas media attention – as the expected ruling is likely to shape workplace litigation for years to come.

This afternoon Plaintiffs filed their merits brief with the U.S. Supreme Court in Dukes, et al. v. Wal-Mart [link to Plaintiffs’ brief]. In a somewhat unusual move, the consortium of law firms representing Plaintiffs also issued a press release describing the arguments within their Supreme Court submission [link to press release].

In their merits brief, Plaintiffs argue that the facts in the record show that the district court judge did not abuse his discretion in certifying the class, and that Wal-Mart’s legal arguments to the contrary are inconsistent with prior precedents interpreting Rule 23. In sum, Plaintiffs contend the district court undertook a rigorous and thorough Rule 23 analysis, and its order was a proper exercise of its discretion.

Of significant interest is Plaintiffs’ argument-by-argument rebuttal to Wal-Mart’s Rule 23 challenges. Two arguments at the heart of the case focus on the expert testimony under-girding Plaintiffs’ statistical showing of the Rule 23 elements and the impact of Plaintiffs’ theories on Wal-Mart’s ability to defend the claims for damages.

While admitting that the district court judge did not expressly invoke Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in analyzing the expert presentations relating to the Rule 23 requirements, Plaintiffs contend that the Ninth Circuit found this to be no abuse of discretion, and that it did not matter because the district court judge was “guided by Daubert,” concluded that the expert opinions were “based on valid principles,” and were “sufficiently probative” of the Rule 23 requirements. The defense and commentators alike have criticized the certification theories, at least in part, as based on junk science.

On the due process and Rule 23 arguments underlying Wal-Mart’s ability to defend against the certification theories in Dukes, Plaintiffs contend that an employer has no right to defend an employment discrimination class action on an “individual-by-individual” basis. Instead, Plaintiffs argue that the certification order properly accounted for Wal-Mart’s rights even though individualized hearings would not be afforded the Defendant. Plaintiffs assert that where, as they allege, the employer’s system was “infected with subjective decision-making and lacks records to document the employment decisions at issue,” relief can be afforded based on expert economic models. In effect, Plaintiffs urge that a “trial-by-expert-modeling” approach is not improper.

Amicus briefs supporting Plaintiffs are due in 7 days, and after Wal-Mart submits its reply brief, the case is due to be argued on March 29, 2011.  Stay tuned!