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Dukes v. Walmart - On to the Supreme Court, We Hope

By James M. Beck and Mark Herrmann

We just got word that certification of the world's largest class action, Dukes v. WalMart, slip op. (9th Cir. April 26, 2010) (en banc), was affirmed in large part in a 137-page whopper of a decision.

The court describes its action as follows:

We affirm the district court?s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

Slip op. at 6146-47 (footnote omitted). 
Bexis briefed the punitive damages issue, which was remanded.  As to that issue, the court held:

[T]he district court did abuse its discretion by failing to analyze whether certifying Plaintiffs? punitive damages claims under Rule 23(b)(2) caused monetary damages to predominate, notwithstanding its decision to require notice and an opportunity for Plaintiffs to opt-out of the punitive damages claims.

Slip op. at 6217.  There are a couple of dissents.  While the Supreme Court can't often be predicted, this one is as close to a "sure thing" as there is.  And it's the Ninth Circuit - notorious for a high reversal rate in the Supreme Court on a wide range of issues.

More later.

Full post as published by Drug and Device Law on April 26, 2010 (boomark / email).