By Gerald L. Maatman, Jr. and David B. Ross

On March 1, 2011, multiple groups supporting Plaintiffs filed 14 amicus briefs with the U.S. Supreme Court in Dukes, et al. v. Wal-Mart Stores, Inc. Given the upcoming oral argument of the case on March 29, 2011, interest in the parties’ arguments – and those of their supporting amici – is increasing in legal circles, academia, and the blogosphere.

Wal-Mart’s position was supported by an array of amicus briefs filed on January 27, 2011, as previously detailed on our blog [link to blog post]. Plaintiffs’ array from March 1st is not as deep (14 amici vs. 16 for the employer), but is nonetheless a virtual “legal who’s who” of groups supportive of the plaintiffs’ class action bar and advocacy groups, including the ACLU [link to ACLU brief], the U.S. Women’s Chamber of Commerce (“USWCOC”) [link to USWCOC brief], the NAACP [link to its brief], the National Employment Lawyers’ Association [link to their brief], Public Citizen, Inc. [link to its brief], Public Justice [link to its brief], the Consumers’ Union [link to its brief], the American Association for Justice [link to its brief], the American Sociological Association [link to its brief], and various academics such as a group of labor economists [link to brief], a group of statisticians [link to its brief], and a group of 31 law professors [link to Professors’ brief] – their brief and their argument is summarized at a posting on Workplace Prof Blog [link to blog post].

Substantively, one of the more interesting amicus briefs is the joint submission of the United Food & Commercial Workers International Union (“UFCW”), AFL-CIO, and Change To Win [link to UFCW brief]. The UFCW advances the novel position that the 9th Circuit’s decision should be affirmed because Rule 23’s commonality requirement should be interpreted to require plaintiffs to raise a “plausible” showing that common questions exist of an employment policy or practice that applies to members of the class. The UFCW cites not a single case in support of that position – as none exists. Instead, the UFCW analogizes the Rule 23 issue to the “plausibility” standard adopted by the Supreme Court in the context of a Rule 12(b)(6) motion to dismiss in Bell Atlantic Co. v. Twombley, 550 U.S. 544 (2007). The UFCW brief contends that such a construction of Rule 23 would strike a proper balance between the legitimate litigation rights and interests of plaintiffs and defendants. It remains to be seen whether such an argument gains any traction with the Supreme Court, as it has no history of success with any lower court, and seems at odds with the Supreme Court’s previous admonition in General Telephone Company of the Southwest v. Falcon, 457 U.S. 147 (1982), establishing the “rigorous analysis” standard for the Rule 23 elements.

The ACLU’s amicus brief is a collaborative effort with 32 groups including the National Organization of Women. It advances policy-based arguments centered on the notion that class actions are essential to achieving Title VII’s purposes of rooting out discriminatory practices, attacking sex stereotypes adversely impacting women in the workplace, and dismantling barriers to female employees in pay and promotions. The briefs cites no less than 28 sociological studies underpinning the gender-bias stereotyping theories and expert studies Plaintiffs used to support their Rule 23 certification arguments.

The USWCOC’s amicus brief is more explicit. Citing only 5 decisions, it contends that the businesses benefit from systematic reforms achieved by class action plaintiffs’ lawyers. Written by the plaintiffs’ counsel who secured the largest Title VII class action settlement in 2010 (the $175 million settlement in Velez, et al. v. Novartis [link to blog post], the brief cites to the class action consent decrees in Hayes v. Shoney’s, Ingram v. Coca-Cola Co., and Velez as manifestations of the inherent value of litigation-initiated reforms brought about by employment discrimination litigation. The brief suggests that the class action settlements helped those employers become industry leaders in maximizing their human capital and eliminating discrimination. The USWCOC characterizes such litigation as a necessary weapon to effectuate “a wake up call for recalcitrant corporations.”

In sum, Dukes may set a new modern day record for having the most briefs filed in one case at the Supreme Court. The sole remaining brief is the defense reply, which is due on March 22, 2011.

The battle lines are now drawn and this high-stakes case is now in the queue for what is sure to be one of the most closely watch arguments at the Supreme Court for employers and employees alike. Stay tuned!