Monday, December 6, 2010
We'll soon have to cite this case as Wal-Mart v. Dukes, because the Supreme Court just granted cert. to review the largest employment discrimination class action in history. As readers are aware, the issues at this point are not whether discrimination occurred, but whether there is a proper class. The questions granted by the Court, according to Scotusblog, are:
The first question will be whether, under Federal court Rule 23, a lawsuit may seek a money verdict — in this case, a claim for back pay — when the class was created under a provision that limits remedies to corrective court orders, not money. Besides agreeing to hear that, the Court told the parties to file briefs and prepare to argue on a second question — whether the class was a proper one, under Rule 23, when it was cleared to go forward under Rule 23(b)(2). A negative answer to the second issue might still leave open the possibility of a class case under a different part of Rule 23, part (b)(3) that does allow money claims.
As I noted earlier, I predict a reversal of the Ninth Circuit's grant of the class in Dukes. The questions presented makes the outcome possibly more nuanced, although I still doubt that the Court is going to allow any type of class this big. Stay tuned.