Dukes v. Wal-Mart: 9th Circuit Upholds Class Certification in $11 Billion Sexual Discrimination Case
Brad Seligman over at the Impact Fund has just scored a big victory. He represents the plaintiff employees in Dukes v Wal-Mart, an $11 billion class action Title VII sexual discrimination case against Wal-Mart which was filed in federal court in the Northern District of California. Dukes v Wal-Mart is the largest civil rights class action suit in U.S. history.
Betty Dukes, an employee in one of Wal-Mart’s California stores, filed a sex discrimination suit against her employer in 2001. Dukes claimed that she was denied training needed to secure promotions despite 6 years of dedicated work and excellent performance reviews.
Plaintiffs had requested the court certify plaintiffs’ class of approximately 1.6 million female Wal-Mart employees (including women who had previously worked in a Wal-Mart store since December 26, 1998). Certification is a key battle in class action lawsuits. Many defendants settle if plaintiff wins. In Dukes case, the court granted plaintiffs’ request, finding that
- (i) Numerosity: the class of injured plaintiffs was so numerous that individual lawsuits would be impractical;
- (ii) Commonality: issues raised in the suit were common to all the class members;
- (iii) Typicality: the claims or defenses of the plaintiffs who were representing the entire class were typical of the claims or defenses of the entire class; and
- (iv) Adequate Representation: the plaintiffs representing the class would fairly and adequately represent the class.
After losing the certification battle, Wal-Mart appealed the lower court’s decision to the 9th Circuit Court of Appeals. On February 6, 2007, the 9th Circuit upheld the lower court’s decision under an “abuse of discretion” standard. Wal-Mart requested a rehearing from the 9th Circuit. Today, the 9th Circuit again issued an opinion upholding the lower court’s decision.
Theodore J. Boutrous of Gibson, Dunn & Crutcher, Los Angeles, argued for defendant Wal-Mart. Brad Seligman of the Impact Fund argued for plaintiffs, with briefing assistance from Cohen, Milstein, Hausfeld & Toll, Washington, D.C.; Equal Rights Advocate, San Francisco; Tinkler & Firth, Santa Fe, New Mexico; Public Justice Center, Baltimore, Maryland; Davis, Cowell & Bower, LLP, San Francisco; Merit Bennett, P.C., Santa Fe, New Mexico.
Congratulations to Mr. Seligman and his team as they continue to make history!
For more information:
Wal-Mart Class Website
Equal Rights Advocate
Class Action World
I’ve been following the Dukes v Wal-Mart case and while the plaintiffs have indeed won at the federal court level and court of appeals — the deliberation in the Supreme Court whether or not the class action lawsuit should proceed is going to be a toss-up. From what I’ve read, since most justices are male, many found the lawsuit to be too encompassing. But I also think that given how the numbers about women at work in Walmart show disparity (ex. 93 percent of all cashiers are women but they made less than their male counterparts which is $13,800 for women to $14,500 for men in the same position), the class action lawsuit should proceed.