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My Wish List from Wal-Mart

April 13, 2011 4:19 PM

 I come at Dukes as a defense lawyer who handles consumer fraud/mass torts class actions.  I’m no employment lawyer, and the subtleties of substantive employment discrimination law often elude me.  I’ve previously said the Ninth Circuit’s en banc opinion was in large part peculiar to its employment discrimination context.  But the Supreme Court’s opinion is likely to reach further.

I thought I’d approach Jim’s and Andrew’s questions by suggesting what I (perhaps overly-optimistically) expect to see in the Supreme Court’s Dukes opinion, which I believe will reverse certification.

1.  District courts must give rigorous scrutiny to whether the class action prerequisites are met, paying special attention to how plaintiffs and defendants will introduce evidence to establish the elements of their claims and defenses.  The Court likely will reiterate the “rigorous scrutiny” standard.  Hopefully, it will actually explain what that means.  Many courts require that the parties put forward a trial plan that shows whether the elements of the class members’ claims really can be established manageably with common proof.  This goes directly to Andrew’s question.

2.  Rule 23 is a procedural rule that cannot alter the substantive claims or defenses.  Part of the problem with including back pay in this class action is that Wal-Mart is entitled to prove for each claimant that the decision not to promote or give a raise was for reasons other than discrimination.  The Rules Enabling Act cannot deprive Wal-Mart of this substantive right merely to promote convenience.


3.  You can’t use a mandatory class to elude the prerequisites for an opt-out class.  Rule 23(b)(3) explicitly requires “predominance” and “superiority.”  Rule 23(b)(2) doesn’t.  But I’ve previously persuaded courts that 23(b)(2) has an inherent “cohesiveness” requirement that is at least as strict as predominance and superiority.  See, e.g., Compaq Computer Corp. v. LaPray, 135 S.W.3d 657 (Tex. 2004).  Everyone concedes that the Dukes class couldn’t meet the predominance and superiority requirements of an opt-out class.  It would be ironic, indeed, if it was easier – rather than harder – to bind absentees to a mandatory class judgment.


4.  Money is not an available remedy under Rule 23(b)(2).  Although I doubt a bright-line actually will emerge, the rule’s plain language suggests that it should.  At the very least, money awarded under 23(b)(2) should be truly communal – just like the injunctive and declaratory relief – and incidental, such that no one would bring the claim for the monetary relief alone.  Attorneys’ fees might fit that bill.  Back pay does not.


5.  The canard that the need for individualized damages determinations cannot preclude class certification should be shot.  Size matters.  And where the putative class members number in the hundreds of thousands, individualized anything precludes certification.


6.  Intra-class conflicts fail the adequacy of representation requirement.  Ted Boutros painted a compelling picture of a female supervisor (and class member) being cross examined by (her) class counsel for allegedly making discriminatory decisions.  The Court is particularly sensitive to adequacy issues, and this is unquestionably one.


7.  Expert testimony merits particularly close scrutiny at the class certification stage.  Even if the court doesn’t require a full-on Daubert analysis, the expert should be required to demonstrate a workable methodology that can address the elements of the claim with classwide proof.  I’ve written and posted on cases that articulate this rule compellingly.  In Dukes, you’d at least expect a showing that a reliable store-by-store model can be created to actually demonstrate discriminatory impact.  Plaintiffs made none. 


8.  Although courts should not reach to judge the merits at the class certification stage, they must decide merits issues where necessary to determine whether the class action prerequisites are met.  Deciding whether admissible expert testimony can support classwide proof may trigger this rule. 


That’s my wish list.  A guy can dream, right?




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.