Size Doesn’t Matter: Commonality and the Shrinking Class in <i>Dukes v. Wal-Mart</i>

On August 2, 2013, Judge Charles Breyer issued an order denying class certification to the plaintiffs in Dukes v. Wal-Mart Stores, Inc., Case No. CV 01-02252 CRB (N.D. Cal. August 2, 2013) (Doc. # 991), which two years ago had its original, nationwide class certification victory reversed by the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541 (2011).  Judge Breyer rejected, on the basis of a lack of commonality among the class members’ claims, the plaintiffs’ attempt to obtain certification of a narrower employment discrimination class of female Wal-Mart employees.

The new proposed class was limited to “about one hundred and fifty thousand women” employed in what the plaintiffs labeled as Wal-Mart’s “California Regions,” an area that includes about 250 stores.  Ultimately, despite the submission of new evidence and the substantial downsizing of the proposed class, the trial court concluded that the plaintiffs were seeking to proceed on what amounted to a “scaled-down version of the same case with new labels on old arguments.” For more, read the full article.

Civil Rule 23 Requirements, Federal Class Action Law, Wal-Mart v. Dukes