As mentioned previously on this blog, in September 2010, Wal-Mart filed a petition asking the U.S. Supreme Court to review the Ninth Circuit’s decision in Dukes v. Wal-Mart certifying a class of more than a million current and former female workers who allege they were discriminated against.
On October 21, 2010, the counsel for the class of Wal-Mart employees filed an Opposition to Wal-Mart’s Petition to the U.S. Supreme Court for a writ of certiorari. The employees’ counsel argued that the writ should be denied because the decision is interlocutory and two fundamental questions remain unresolved.
The Ninth Circuit en banc panel remanded two issues to the trial court, so the petition raises issues the case does not present. The issues remanded are (1) whether and how punitive damages should be certified, and (2) whether to certify the claims of class members no longer employed when the complaint was filed under Rule 23(b)(3). The employees’ counsel also emphasized that the size of the class does not justify denial of class certification, because Wal-Mart is the country’s largest employer, so of course, the class will be large.
I believe that this opposition will give pause to those claiming that it is a slam-dunk that the U.S. Supreme Court will grant certiorari in the Dukes v. Wal-Mart case. You can see a copy of the Opposition by clicking here: Wal-Mart Opposition to Certiorari.