On June 20, the U.S. Supreme Court issued its much-anticipated Wal-Mart Stores, Inc. v. Dukes decision in which the Court held that the nationwide class certification approved by the lower courts was not consistent with Federal Rule of Civil Procedure 23(a) governing class actions. The class of plaintiffs consisted of some 1.5 million women who worked at Wal-Mart throughout the U.S. and allegedly suffered discriminatory pay and promotion practices at any point during or after December 1998. Writing for the Court, Justice Antonin Scalia concluded that the millions of plaintiffs and their claims did not have enough in common: “Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why I was disfavored.”
As was reported this week, plaintiffs’ counsel have now move the fight to the states, amending their original complaint filed in federal district in California to limit the class to female Wal-Mart employees in California and filing a new action on behalf of Texas Sam’s Club and Wal-Mart female employees. It is anticipated that these represent the first of many additional class-action lawsuits to be filed against Wal-Mart on the state or regional level.
At first blush, these state and regional actions appear to suffer from some of the same defects as the action rejected by the U.S. Supreme Court. Among other things, it remains undisputed that Wal-Mart store supervisors retained discretion over promotion and pay policies, making challenges on anything above the store-level problematic. In addition, the proposed classes appear to include female associates as well as the female supervisors who may have supervised them and made the very promotion and pay decisions they deem objectionable.
What’s the likely outcome of the state/regional Wal-Mart class actions? If you were representing Wal-Mart, what would you argue? What are the chances one of these “Daughter of Dukes” cases ends up back before the nation’s high court?