As I suggested in a post on this blog in June, on August 25, 2010, Wal-Mart filed a petition asking the US Supreme Court to review the Ninth Circuit’s decision in Dukes v. Wal-Mart to allow that case to proceed as a class action. The Ninth Circuit affirmed the trial court’s decision to certify a sex discrimination class action involving more than one million current and former female workers.
Wal-Mart’s petition basically takes the position that Wal-Mart is too big to be liable. Wal-Mart contends that the class is so large that it violates due process and the Federal Rules of Civil Procedure, and conflicts with other circuits and Supreme Court precedents. The petition also raised a number of issues that had not been considered by the lower courts. For example, Wal-Mart asserted that punitive damages should not be recoverable, even though that issue has not yet been presented to the trial court and Ninth Circuit. I think the Supreme Court should deny review, send the case back for trial, and then deal with the issues on appeal, rather than having appellate review twice.
If the US Supreme Court were to accept review, the central issue will not be whether any discrimination occurred, but whether a joint claim can be made. Nine years after the suit was filed, no court has yet considered plaintiffs’ claim that the retail giant chain, with more than 3400 U.S stores and a million employees, has paid women less than men and given less promotions to women.