The Future of Class Action Suits After Wal-Mart v. Dukes


In a historic decision, the Supreme Court decertified a plaintiff class in Wal-Mart Stores, Inc. v. Dukes, which asserted claims on behalf of 1.5 million female Wal-Mart employees alleging that Wal- Mart discriminated against women on matters of pay and promotion. The Court’s decision definitively resolves three important issues of class action law:

1. The Court held that plaintiffs now bear a heightened burden under Rule 23(a)(2) to show that there are questions of fact and law common to the class as a whole, particularly where the class claims concern the independent conduct of numerous individuals in multiple locations throughout the country.

2. The Court reaffirmed that it is permissible to address merits questions at the class certification stage to the extent necessary to determine whether the requirements of Rule 23 have been met.

3. The Court ruled that claims for back pay are not proper under Rule 23(b)(2), which governs classes seeking injunctive relief, and cast substantial doubt on whether Rule 23(b)(2) ever permits certification of classes that seek money damages.

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