What Do 1.5 Million Wal-Mart Women Have in Common?: Dukes v. Wal-Mart Class Action Certification

IntroductionOn June 8, 2001, Betty Dukes, an African-American Wal-Mart employee from California, along with five other named plaintiffs and a class of similarly situated female Wal-Mart employees, filed a sexual discrimination case against their employer.1 They alleged that women employed by Wal-Mart were paid less than men in comparable positions and received less frequent promotions to in-store management positions than their male colleagues, in violation of Title VII of the Civil Rights Act of 1964.2 The class included in the complaint encompassed all women employed at any Wal-Mart store "who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices."3 The plaintiffs, a class of approximately 1.5 million women, sought injunctive and declaratory relief, back pay, and punitive damages, but not traditional compensatory damages.4Wal-Mart argued that class certification was inappropriate because, among other reasons, the class of women failed to meet the commonality requirement of Rule 23(a)(2) of the Federal Rules of Civil Procedure.5 In 2004, a federal district court in Dukes v. Wal-Mart Stores, Inc. (Dukes I ) certified the plaintiffs as a class.6 In 2010, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court's decision in a sharply divided 6-5 en banc decision in Dukes v. Wal-Mart Stores, Inc. (Dukes II ).7 On December 6, 2010 the Supreme Court granted certiorari to answer two questions: (1) whether and under what circumstances claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2), which is limited to injunctive and declaratory relief; and (2) whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).8Part I of this Comment briefly reviews the commonality requirement for class action certification as discussed by the Ninth Circuit in Dukes II and the evidence the plaintiffs presented to satisfy this requirement. 9 Part II examines and discusses the plaintiffs' theory of commonality based principally on decentralized and subjective decision making.10 Finally, Part III questions whether the plaintiffs' theory was sufficient to satisfy the commonality requirement of Rule 23(a)(2).11I. Rule 23(a)(2) Commonality Through Subjectivity and DecentralizationPlaintiffs seeking to certify a class have the burden of proving that all four requirements of Rule 23(a) and at least one of the requirements of Rule 23(b) have been met.12 Rule 23(a) authorizes class action certification only when: (1) the class is so numerous that joinder is impractical; (2) there are common questions of law or fact; (3) the claims of the representatives are typical of the class; and (4) the representatives will fairly and adequately protect the interests of the class.13 The class must also meet one of the three types of class actions under Rule 23(b).14 On appeal to the Ninth Circuit, Wal-Mart argued that the class in Dukes did not meet the commonality and typicality requirements of Rule 23(a)(2) and 23(a)(3).15Commonality requires a common issue of law or fact.16 Typicality ensures that the class representative possesses the same interests and suffered the same injury as all class members.17 Rule 23's commonality and typicality requirements are closely related, and their analyses tend to merge.18 As the U.S. Supreme Court has explained, both commonality and typicality serve as guides by which to determine whether a class action is economical and whether the named plaintiff's claims and the class claims are so interrelated that the interests of all class members will be fairly represented and protected.19After reviewing Ninth Circuit and Supreme Court precedent, the Dukes II court clarified the standard to determine whether to grant class certification.20 The court looked to the 1982 decision General Telephone Co. v. Falcon, the only U.S. Supreme Court case addressing Rule 23(a) in the context of Title VII discrimination and directly on point in Dukes II. …