Monday, June 20, 2011
The Supreme Court today decided Wal-Mart v. Dukes (opinion here), rejecting the massive gender discrimination class action. The Justices unanimously agreed that the class action could not be certified under Rule 23(b)(2) because the monetary damages claims were not "incidental" to the claim for injunctive relief. A 5-4 conservative majority (Scalia, Roberts, Kennedy, Thomas, Alito) went a huge step further, however, ruling that the class action also had to be rejected for lack of commonality under Rule 23(a)(2). Thus, even if the plaintiffs had sought certification under Rule 23(b)(3), or even if they had sought certification under Rule 23(b)(2) and limited their claims to injunctive relief, the class action would have to be rejected. In mass tort litigation, both the 23(b)(2) and the 23(a)(2) rulings will make it more difficult to obtain class certification. I know my co-bloggers have followed this case closely and I look forward to seeing their thoughts as well.