Author: Timothy Sandefur
The largest class-action lawsuit in history, Dukes v. Wal-Mart, has reached the U.S. Supreme Court, and PLF filed this friend-of-the-court brief today. (Here’s the brief Wal-Mart filed; the plaintiffs’ brief is due in February.)
At issue is whether the trial court was right to allow the case to go forward as a class-action lawsuit, despite the fact that the members of the class claim to have been discriminated against in all sorts of different ways, at different times, in different places, and under different circumstances. The Federal Rules of Civil Procedure only allow class actions if all the plaintiffs share a “common” injury, and if the injuries that were suffered by the leading plaintiffs are “typical” of those that the rest of the class suffered. But Wal-Mart doesn’t have discriminatory employment policies—in fact, they don’t basically have a company-wide employment policy in the first place, because hiring and promotion decisions are made at the local level, by the managers of Wal-Mart’s 8,500 stores. So the members of the class—a class larger than the entire American military—can’t have suffered a “common” injury, because even assuming they really were discriminated against, it wasn’t at the hands of a single Wal-Mart decision-maker.
Yet the Ninth Circuit said that it was okay to disregard the many differences between the members of the class because Wal-Mart’s delegation of decision-making to local managers itself qualified as a common injury, and it, along with statistical disparities between men and women in management positions at Wal-Mart, proved that Wal-Mart’s policy—or rather, lack of a policy—was discriminatory! As I point out in PLF’s brief, this is reminiscent of the scene in Frasier when Martin is confused by his son’s decorating style:
Frasier: You know, every item here was carefully selected. This lamp by Corbusier, the chair by Eames, and this couch is an exact replica of the one Coco Chanel had in her Paris atelier.
Martin: Nothing matches.
Frasier: Well, it’s a style of decorating. It’s called “eclectic.” The theory behind it is, if you’ve got really fine pieces of furniture, it doesn’t matter if they match—they will go together.
The central error in the Ninth Circuit’s decision is that it approached the question of “commonality” at such a broad level of generality that just about anything could qualify. As another circuit noted, “at a sufficiently abstract level of generalization, almost any set of claims can be said to display commonality. What we are looking for is a common issue the resolution of which will advance the litigation.” Sprague v. GMC, 133 F.3d 388, 397 (6th Cir. 1998). If the Federal Rules of Civil Procedure mean anything, courts shouldn’t be free to “lift the description of the claims to a level of generality that tears them from their substantively required moorings to actual causation and discrete injury.” In re Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990). Yet that’s just what the Ninth Circuit did; any kind of discrimination can qualify as a “common” and “typical” injury under the rationale it adopted—which means that the rule would not really have any teeth at all.
Ted Frank had a good article about the case in the Washington Examiner a few months ago.