• A Sharply Divided Ninth Circuit Upholds Certification of Largest Employment Discrimination Class Action in History
  • May 4, 2010 | Authors: Jay Cohen; Maria H. Keane; Daniel J. Toal
  • Law Firm: Paul, Weiss, Rifkind, Wharton & Garrison LLP - New York Office
  • On April 26, 2010, the Ninth Circuit sitting en banc issued a long anticipated and sharply divided 6-5 opinion in Dukes, et al. v. Wal-Mart. The interlocutory appeal, taken pursuant to Rule 23(f), has been before the Ninth Circuit since 2005 (first before a three-judge panel, and then before an eleven-member en banc panel). The majority affirmed the district court’s certification of a nationwide class of current female employees of Wal-Mart with respect to their claims for injunctive and declaratory relief and back pay. The Court remanded the claims for punitive damages and those of putative class members who no longer worked for Wal-Mart when the complaint was filed. Given the divided court, the size of the class and the conflicts with other circuits, Supreme Court review seems likely. Wal-Mart’s attorneys have already suggested that they intend to seek such review.