April 27, 2010 8:00 AM

Ninth Circuit OKs Huge Class in Wal-Mart Gender Discrimination Case

Posted by Ed Shanahan

By Andrew Longstreth, The Am Law Litigation Daily

On Monday, in an en banc decision, the U.S. Court of Appeals for the Ninth Circuit ruled 6-to-5 to affirm class certification in a gender discrimination class action against Wal-Mart. The ruling in Dukes v. Wal-Mart comes six years after San Francisco federal district court judge Martin Jenkins certified the largest class in history; it will allow more than 500,000 women who worked at Wal-Mart to pursue injunctive relief, declaratory relief, and back pay.

The Ninth Circuit has remanded the case to the district court, where it will now be handled by Chief Judge Vaughn Walker following Judge Jenkins' appointment to the state appellate court. The Ninth Circuit ordered Chief Judge Walker to consider whether the certified class can pursue punitive damages. It also asked him to determine whether women who left employment at Wal-Mart before the case was filed in 2001 should be part of this class or a related class. Under the original certification ruling, the class would have included all female employees who worked for Wal-Mart after Dec. 26, 1998.

In a statement to the Litigation Daily, Wal-Mart defense counsel Theodore Boutrous, Jr., of Gibson, Dunn & Crutcher hinted that his client would be appealing the Ninth Circuit's ruling to the U.S. Supreme Court. "We are pleased that the Ninth Circuit significantly narrowed both the size of the class and the magnitude of the claims, but several of the majority's other rulings violate both due process and federal class action rules, contradicting numerous decisions of other federal appellate courts and the Supreme Court itself," the statement said. "These are exceedingly important issues that reach far beyond this particular case and warrant Supreme Court review."

Joseph Sellers of Cohen Milstein Sellers & Toll, co-lead counsel for the plaintiffs, acknowledged the possibility of a Supreme Court appeal in an interview with the Litigation Daily. But he said that the Court may not want to weigh in on the case just yet. Sellers said the Ninth Circuit's decision is narrowly tailored and doesn’t address the case’s more provocative issues, like punitive damages.

"It's not an extraordinary decision," he told us. "It relies broadly on well-established legal principles that have been [in place] for decades."

What's unique about the Wal-Mart case, said Sellers, is that it involves an enormous employer and an enormous class. But that shouldn't affect judicial analysis of the allegations, he said. "There's no size exception to the civil rights laws," said Sellers.

Click here for the full report from the Litigation Daily.


Circuit OKs Huge Wal-Mart Class The Recorder

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

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