Co-authored by Gerald L. Maatman, Jr. and Laura J. Maechtlen

Briefing is now complete in Dukes, et al. v. Wal-Mart. The defense filed its reply brief late last week ahead of its scheduled due date [link to reply brief].

The papers filed by the parties and their supporting amici likely constitute a new modern record in Supreme Court annals. The volume of paper manifests that the case may be the most important class action decision ever for employers and employees alike in several decades. As our readers know from past postings on the grant of the certiorari petition [link to posting], the initial defense briefing [link to posting], the plaintiffs’ briefing [link to posting], and both sides’ amicus filings [link to first and second posts], Dukes presents cutting-edge issues relative to how employment discrimination class actions can be structured, prosecuted, and defended.

The defense reply brief takes dead aim at what it asserts are the weaknesses in both the merits and class certification theories espoused by plaintiffs and adopted by the District Court’s certification order of June of 2004 [link to ruling] and the 6 to 5 en banc decision of the Ninth Circuit of April 26, 2010 [link to ruling].

The principle contentions of the defense are four-fold: (i) plaintiffs’ “excess subjectivity” theory – that managers disadvantaged female employees in making pay and promotional decisions – breaks down on closer scrutiny and affords an insufficient basis to show commonality under Rule 23 (a)(2) because managers operated in a company-wide framework of objective standards that prohibit discrimination and require equal employment opportunities; (ii) plaintiffs’ certification theory is “at war with itself” – since there is an inherent tension in contending that the workplace has excess subjectivity at the local store level but centralized control at the corporate level – and thus cannot support a nationwide class action; (iii) plaintiffs’ statistical evidence and anecdotes from class members (based on 40 declarations, which the company asserts are “one-one-thousandth of one percent of the women employed by the company since the start of the class period”) obscure the fundamental defects in their certification theories; and (iv) allowing the case to go forward as a class action will exalt convenience over the Rule 23 requirements in derogation of class action procedures, the Rules Enabling Act, and due process.

Oral argument is set for March 29, 2011 at 10am EST [link to order]. Our blog will provide a recap of the oral argument and our prognostications on a range of possible results. Stay tuned!