In Betty Dukes v. Wal-Mart, Inc., 603 F.3d 571 (9th Cir. 2010), the Ninth Circuit affirmed the certification of a class of female Wal-Mart employees who alleged that Wal-Mart discriminated against them in compensation and promotions. The Dukes decision is newsworthy because it is the largest gender discrimination class ever certified. Because of this, and because commentators suggest that there are substantial differences among the circuits, it is likely that the US Supreme Court will grant certiorari.
However, just because the class is large does not justify granting certiorari. Wal-Mart is a huge employer, and just because it is a large employer should not qualify it for different treatment under the law. Further, the purported split among the circuits is more imagined than real. I agree with the Dukes court that consensus is rapidly emerging among the circuits, and that the statement that there are “substantial differences” in the circuits seems to create a distinction where none exists. The majority in Dukes followed longstanding precedent when clarifying the standard trial courts must follow when considering class certification. Although some suggest otherwise, the standard announced in Dukes is nothing really new.
Continue reading “Ninth Circuit Reaffirms the Standard of Review for Class Certification in Dukes v. Wal-Mart”