Monday, September 27, 2010
Though I realize that, as an employment discrimination class action, Dukes v. Wal-Mart Stores, Inc. technically falls outside the realm of mass torts, its class action status has most proceduralists watching with interest to see whether the Supreme Court will grant Wal-Mart's petition for a writ of certiorari. Over the next two months, Vanderbilt Law Review En Banc will be hosting a Roundtable discussion on the case that includes Robert Bone, Melissa Hart, the blog's own Alexandra Lahav, Greg Mitchell, Richard Nagareda, and Tobias Wolff. (Richard's essay, Common Answers for Class Certification is already on SSRN.)
To set the table for that discussion, I've written a short introduction to the case itself. To that end, I've tried to provide enough legal background on the class certification issues so that someone who's interested in the case but isn't a class action enthusiast can understand what's at stake. I've also raised more questions than answers, forsaken many of the more nuanced arguments in favor of clarity, and tried to refrain from engaging the case's merits--as tantalizing as they are. This short thirteen-page piece might also be of interest to those who haven't had time to wade through the Ninth Circuit's 130+ page opinion. Here's a link to the SSRN page for "Introducing Dukes v. Wal-Mart Stores, Inc." I'll post a link to the edited version in a few weeks.
See the Wall Street Journal article, Spill Payments Irk Alabama Businesses, by Mike Esterl. In reaction, BP fund administrator Ken Feinberg stated, "In light of the criticism, I am accelerating payments and being more generous."
As per the Torts Prof Blog, Justice Scalia in his capacity as Circuit Justice for the 5th Circuit has issued a stay in Philip Morris v. Scott, a tobacco class action in Louisiana. This was a case brought on behalf of all Louisiana smokers on a fraud theory. Justice Scalia writes in his opinion - available here - that the Louisiana court ruled that the plaintiffs didn't need to prove individual reliance if all they were asking for was class-wide relief in the form of a smoking cessation fund. The defendants argue that this was a violation of their due process right to present "every available defense." Plaintiffs argue that defendants simply don't have this defense as matter of substantive law. Importantly, Scalia writes:
The apparent consequence of the Court of Appeals holding is that individual plaintiffs who could not recover had they sued separately can recover only because their claims were aggregated with others' through the procedural device of the class action.
561 U.S. __ (2010). If the court grants cert on this and the Dukes v. Wal-Mart case, it will be a banner term for class action scholars. A very nice description of the case (more thorough than I have provided) can be found on SCOTUSblog.