Featured Case

Class Action Lawsuits Should Not Be Abused

Contact: Timothy Sandefur

Status: Adverse decision by the Ninth Circuit on April, 2010. Preparing amicus brief in support of Wal-Mart's petition for writ of certiorari to the U.S. Supreme Court.

Summary: In June, 2001, Betty Dukes and five other former and current Wal-Mart employees sued the company in a putative class action under Title VII for alleged sex discrimination in pay and promotions. In 2003, the plaintiffs moved to certify a class including at least 1.5 million women who worked at any of Wal-Mart’s 3,400 stores, including part-time, full-time, entry-level, hourly, salaried, and managerial employees. Among other things, the plaintiffs presented expert testimony that Wal-Mart’s corporate culture favors men and statistical evidence that Wal-Mart promotes women less frequently than other large companies. In response, Wal-Mart argued that individual issues predominated and that the sheer breadth of the proposed class would deprive it of the opportunity to defend itself. The District Court recognized Wal-Mart’s concerns, but concluded that “while the class size was large, the issues were not unusual.”

The Ninth Circuit upheld the class certification that includes every woman who worked at Wal-Mart since 1998 for a claim of gender-based discrimination. The class includes 1.5 million women who worked for Wal-Mart during that time, whether hourly or salaried, permanent or temporary, management or line. Wal-Mart has petitioned the Ninth Circuit to rehear the case before an eleven judge en banc panel and the court agreed. PLF filed an amicus brief arguing that a claim by a group of plaintiffs, dissimilar in their employment, their injuries, and other circumstances, and alike only as to their sex, does not satisfy the federal rules, defeats the purpose of class certification, and deprives Wal-Mart of its right to defend itself against particular and specific allegations.

Given the remarkable breadth of the allegations, this case’s overarching goal appears to be an attempt to resolve vague “social justice” controversies against Wal-Mart, and to address long-standing complaints about the relationships between social and economic classes. But federal courts have no role in resolving general class grievances. Article III of the United States Constitution gives courts power only to redress particular injuries done to particular persons. For these reasons, PLF argued that the certification decision of the District Court should be reversed.

On April, 2010, the Ninth Circuit issued an adverse decision, upholding certification of the nation's largest class action by an en banc panel of the Ninth Circuit.  PLF is preparing to file an amicus brief in support of Wal-Mart's petition for a writ of certiorari to the United States Supreme Court.