We’ve already written twice now on the case of Dukes v. Wal-Mart Stores, 605 F.3d 571 (9th Cir. 2010), most recently to argue (August 27, 2010) that the Supreme Court should accept certiorari and reverse.   The Supreme Court has now accepted cert., but has done so in a manner that leaves the scope of the review up to question.  The Dukes case presented numerous cert.-worthy issues relating to, among other things, the sheer size of the class, manageability, the trial court’s proposed methodology for trial, and the use (or mis-use) of expert testimony at the Rule 23 stage.  At first blush, Wal-Mart’s petition for certiorari rested on two questions:  (1) whether a court may certify a class under Rule 23(b)(2) when the plaintiffs seek substantial money damages; and (2) whether the trial court should have certified such a case at all.  We’ve obviously paraphrased their brief, and the actual questions are set forth below. Wal-Mart, of course, wove several of the other issues into these two, but the second issue would have had especially broad application.  That issue attacked the practical effect of the trial court’s decision, which was to grant the plaintiffs a gargantuan class and their very best evidence while denying Wal-Mart the right to present its strongest defenses, the individual situations of the putative class members.

On December 6, 2010, the Supreme Court did indeed accept certiorari, but not on every issue.  Commentators are already discussing the ruling and its potential to change the employment class action landscape, but the entry itself is rather cryptic. You can find the order at  http://www.supremecourt.gov/orders/courtorders/120610zor.pdf, but it reads, in its entirety:


The petition for a writ of certiorari is granted limited to Question I presented by the petition. In addition to Question I, the parties are directed to brief and argue the following question: “Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).”

Of course, most orders granting cert. are just as brief, and there is no debate that this order accepts the Issue I for review.  Wal-Mart phrased the issue in its petition as:

I.   Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)–which by its terms is limited to injunctive or corresponding declaratory relief — and, if so, under what circumstances.

This issue is certainly important, and has been an issue meriting Supreme Court review for at least a decade. The decisions in Allison v. Citgo  Petroleum Corp., 151 F.3d 402 (5th Cir. 1998), and Jackson v.  Motel 6  Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1999), finding that Rule 23(b)(2) could not be used when compensatory and punitive damages are sought,  have curtailed certain types of class actions in the Fifth and Eleventh Circuits.  The Ninth Circuit in Dukes rejected those holdings, and the Second Circuit takes a third viewpoint still.  While this would ordinarily be an issue that should be reviewed, however, it was not the broadest issue presented in the case.  The Court denied, without explanation, review of Wal-Mart’s second issue, which it broadly defined as:

II.  Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

Very broad, but then again so was the Ninth Circuit’s lengthy order.  The Supreme Court, however, as is the norm, did not explain why it rejected it.  The rejection of this issue would have been a major setback but for the additional language of the Court’s Order granting certiorari.  That language directed the parties to brief “[w]hether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).”  

This question is somewhat ambiguous because the Court did not identify which provision of Rule 23(a) might be in question.  Numerosity, pursuant to Rule 23(a)(1), cannot possibly be worthy of Supreme Court review as the putative class has well over 1 million members.  While there was some concern expressed by one of the dissents before the Ninth Circuit over the claims of some of the named plaintiffs, there is no issue of the competence of plaintiffs’ counsel that would ordinarily implicate adequacy of representation under Rule 23(a)(4).  Some commentators assume that the court may be referring to the Rule 23(a) elements of commonality and typicality, but the Order references Rule 23(a) in its entirety, and not subsections (3) and (4).

Another possibility relates to the Court’s mention of Rule 23(b)(2).  One construction of the Court’s question is to read in an issue relating to the interplay between Rules 23(a) and 23(b), but that does not require Supreme Court review.  All class actions need to satisfy the requirements of Rule 23(a), whether they are certified under Rule 23(b)(1), (2), or (3). 

Our best guess is that the Court was trying to set limits on Wal-Mart’s second issue and to focus the question on those portions of Rule 23 that are at issue, primarily commonality and typicality.  These provisions largely leave out Wal-Mart’s intriguing arguments about the net effect of the lower court’s rulings, and also have little to do with the predominance arguments under Rule 23(b)(3) that now at the forefront of many employment class actions.  A Supreme Court ruling more tightly prescribing the commonality and typicality requirements would seriously affect many class actions, as would a decision resolving the split in the Circuits on the appropriate use of Rule 23(b)(2).   Most of Wal-Mart’s arguments will clearly be in play, but the limited issue may result in an opinion that fails to reach some important aspects of the trial court’s decision.

The Bottom Line:  The Supreme Court has accepted certiorari in Dukes, but don’t bet on it settling the most important issues.