(1) Under Rule 23(a), plaintiffs cannot prove "common questions of law or fact." Plaintiffs wish to sue for millions of employment decisions at once, but there was no "significant proof that an employer operated under a general policy of discrimination." Wal-Mart's announced policy forbids discrimination and has penalties for violations. Plaintiffs' only evidence of a general discrimination policy was a sociologist's analysis asserting that Wal-Mart's corporate culture made it vulnerable to gender bias, but he could not estimate what percent of the decisions might be determined by stereotypical thinking. Wal-Mart's policy gives local managers discretion, but it is unlikely that all managers would exercise their discretion in a common way without some common direction. Plaintiffs' attempt to show such direction by means of statistical and anecdotal evidence fell short. 

(2) Under Rule 23(b)(2), the backpay claims were improperly certified. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. Individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out. Plaintiffs' argument that backpay claims do not "predominate" over their claims for injunctive and declaratory relief is rejected because such an interpretation has no basis in the Rule's text and does violence to the Rule's structural features. 

Four Justices partially DISSENTED as to the Rule 23(a) issue, arguing that the majority "imports into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment." 

Case below: Dukes v. Wal-Mart Stores  (9th Cir 04/26/2010) 
Official docket sheet 
Certiorari granted: December 6, 2010.
Oral argument: March 29, 2011. [Transcript] [Audio] 

Question presented in petition for certiorari:   

In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy. 

The questions presented are: 

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances. 

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23. 

Additional question ordered by the Supreme Court: 

Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a). 

Certiorari Documents: 

• Petition for certiorari 
• Brief in opposition 
• Petitioner's reply 
  
  
• Amicus brief of Intel 
• Amicus brief of the U.S. Chamber of Commerce 
• Amicus brief of the Defense Bar 
• Amicus brief of Retail Litigation Center, Inc. 
• Amicus brief of Altria Group et al. 
• Amicus brief of the Equal Employment Advisory Council 
• Amicus brief of Pacific Legal Foundation 
• Amicus brief of Washington Legal Foundation 
• Amicus brief of California Employment Law Council 

• For Petitioner: Theodore J. Boutrous Jr.; Gibson, Dunn & Crutcher, LLP; 333 South Grand Avenue; Los Angeles, CA  90071; (213) 229-7000. 
• For Respondents: Brad Seligman; The Impact Fund; 125 University Ave., Suite 102; Berkeley, CA  94710; bseligman@impactfund.org; (519) 845-3473.