United States Supreme Court Will Review Class Certification Order in Dukes v. Wal-Mart
On December 6, 2010, the United States Supreme Court announced that it would review the Ninth Circuit's class certification order in the Dukes v. Wal-Mart case, in which the plaintiffs allege that Wal-Mart discriminated against women in its pay and promotion practices in its stores throughout the country. If the class certification order is affirmed, Dukes would be the largest employment discrimination class action in history, with enormous potential exposure at stake. The district court first certified the case for class treatment back in June 2004. After years of appeals in which the class certification decision was challenged multiple times, the Ninth Circuit again affirmed class treatment, most recently in April 2010. Whatever the outcome, the Supreme Court's decision in Dukes will likely serve as the new standard for evaluating class treatment in employment cases, including, among other questions, whether and how expert evidence might attempt to manage individualized issues of liability and damages for an entire class of employees, and whether such expert methodologies can be utilized without intruding on an employer's due process right to challenge individual claims. We will continue to monitor the progress of this case and will report any developments.