Disparate impact class action certified, despite U.S. Supreme Court ruling in Wal-Mart

Posted on: July 15th, 2011 by Steve Larson

The Honorable Nicholas Garaufis, a district court judge from the Eastern District of New York entered an order in the NYC Firefighters case, applying and, to a degree, limiting, the Supreme Court’s decision in Wal-Mart.  He certified subclasses under Rule 23(b)(3), including claims for compensatory damages.

Judge Garaufis said that issue certification of bifurcated liability phase questions under Rule 23(c)(4) for a disparate impact case is fully consistent with Wal-Mart.  He also held that the court would determine aggregate backpay, retroactive seniority, and priority hiring relief on a class wide basis.  The judge held that there would be an individual claims process that would provide the City with the opportunity to raise its individual defenses.  However, the court ruled that the subclasses could waive the right to jury trial in the remedial phase, so long as class members were provided notice, so they could opt out. He said a special master could handle the 7100 individual claims.

The case made it clear that Wal-Mart should be limited to disparate impact and pattern and practice cases.

Click here for a copy of the decision.