Dukes v. Wal-Mart: Plaintiffs File Opposition to Wal-Mart Petition for Certirorari

On October 21, 2010, plaintiffs filed their opposition to the petition for certiorari filed by Wal-Mart in Dukes v. Wal-Mart Stores, Inc. The introduction lays out the arguments:

The Petition seeks review of an interlocutory class certification order that the appeals court affirmed in part, reversed in part, and remanded for reconsideration on two issues central to the questions presented by Petitioner. Class certification orders are inherently provisional, but the two issues still to be resolved render this order particularly ill-suited for certiorari review at this time. As a result, the Petition raises questions that this case does not present – and may never present. The request for review is, thus, premature.

The First Question ["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"] posits the existence of a circuit split as to whether and how “monetary relief” claims may be certified in a Rule 23(b)(2) injunctive class action. While the circuits have treated claims for legal damages under Rule 23(b)(2) somewhat differently, there is no circuit split presented by the en banc ruling, as the only form of monetary relief that the Ninth Circuit allowed to proceed collectively was equitable back pay. All the circuits that have addressed the issue agree that equitable back pay may properly be certified in a Rule 23(b)(2) class action.

The Second Question ["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"] – an amalgam of purported errors, large and small, based on a host of legal doctrines – makes little pretense of meeting this Court’s requirements for certiorari. No circuit split exists as to any of these issues. Instead, the Petition exhorts this Court to second-guess the case-specific findings of the district court or to adopt, in the first instance, legal theories never accepted by any appellate court.

Petitioner returns repeatedly to the refrain that the certified class is very large, a fact that is indisputably true but legally irrelevant. The class is large because Wal-Mart is the nation’s largest employer and manages its operations and employment practices in a highly uniform and centralized manner. The district court was keenly aware of the implications of the class size but ultimately concluded that “Title VII . . . contains no special exception for large employers.” App. 165a. The certification decision was firmly grounded in this Court’s Title VII class action jurisprudence and “[c]ertification does not become an abuse of discretion merely because the class has 500,000 members.” App. 112a (Graber, J., concurring).

Sorry for the long block quote, but the intro does a good job of laying out the arguments. I understand that we should know by the end of November whether the Court will grant cert.

Our post on Wal-Mart's petition is here. The opposition brief and other relevant documents are available here. The Supreme Court's docket is here.