In June 2011, the Supreme Court rejected the certification of a class of 1.5 million female employees of Wal-Mart Stores, finding that the plaintiffs' claims lacked commonality. Following this ruling, the plaintiffs in the Dukes case amended their original complaint, alleging claims of sex discrimination that only included women in Wal-Mart's California regions. Shortly thereafter, a regional suit against Wal-Mart was filed in Texas. On October 15, 2012, the federal court in the Texas lawsuit dismissed the case because it was time barred.
Although Dukes and the related claimants have been fairly quiet since the June 2011 ruling, we are now seeing a flurry of activity. On October 3, 2012, a regional case stemming from the Dukes litigation was filed in the Middle District of Tennessee. On October 5, 2012, another regional case was filed in the Southern District of Florida.
Only the Texas case has been dismissed. The others have not reached the class certification stage yet.
Ellis v. Costco Whole Corporation is an example of a gender discrimination class action that is nationally certified, even after the Dukes ruling. After a class of women claimed gender discrimination with regard to promotions at Costco in January 2007, the Ninth Circuit Court of Appeals issued an order in 2011 following the ruling in the Dukes case. The Court of Appeals remanded the matter back to the District Court for reconsideration in light of Dukes. On September 25, 2012, the District Court considered the Dukes ruling and analysis and, again, granted Plaintiffs' Motion for Class Certification.
Although the Dukes ruling tightened the standards for class certification, and arguably made it more difficult for national classes to be certified, national class certifications in discrimination cases are not impossible. More than likely, most plaintiffs seeking to bring claims against national employers will bring regional cases, as seen with the plaintiffs from Dukes. There are now coordinated efforts to bring regional cases against the national employer. This means that national employers should be prepared for regional class actions. With a more focused and targeted potential class, national employers can properly defend such claims. However, expect plaintiff's attorneys to test various theories and strategies in the regional cases, noting which arguments are successful and which are not.
Dukes, et al. v. Wal-Mart Stores, Inc., 3:01-cv-02252 in the Northern District of California
Odle, et al. v. Wal-Mart Stores, Inc., 3:11-cv-02954 in the Northern District of Texas
Phipps, et al. v. Wal-Mart Stores, Inc., 3:12-cv-01009 in the Middle District of Tennessee
Love, et al. v. Wal-Mart Stores, Inc., 0:12-cv-61959 in the Southern District of Florida
Ellis, et al. v. Costco Wholesale Corp., 3:04-cv-03341 in the Northern District of California