Hastings Law Journal

Under Rule 23(a) there are four basic conditions for any class-action lawsuit: (1) the class must be so large that joinder of all members is impracticable, (2) there must exist a common question of law and fact, (3) the claims of the representative parties must be typical of the claims of the entire class, and (4) the representatives must be able and willing to protect the interests of the entire class.  Under Rule 23(b)(1), there must be a risk either that the results of individual cases would impose differing legal duties on the party sued or that an individual case would preclude other individual claims or substantially impede a party’s ability to protect its individual interests.  If these conditions are met, a judge may certify one of two types of class action suits.  The first is a 23(b)(2) class, in which the representatives’ remedy is the remedy of the entire class, and no party may opt out of the class.  The second type is a 23(b)(3) class, in which a judge must ensure that everyone in the class is notified of their involvement and each member is given a chance to opt out.

Wal-Mart appealed the 23(b)(2) certification to the Ninth Circuit claiming the alleged victims, who worked in hundreds of different job classifications across thousands of stores, had too little in common to qualify for a single class-action suit.  The Ninth Circuit upheld the district court certification but modified the order and remanded the case back to the district court to reexamine whether the class should have been certified under 23(b)(3).  Wal-Mart then appealed the Ninth Circuit decision to the Supreme Court.

In granting certiorari, the Supreme Court certified two questions for review: (1) whether a monetary remedy was available under Rule 23(b)(2), and (2) whether the class order under Rule 23(b)(2) is “consistent with” Rule 23(a), which sets forth the conditions for any class order.  At oral argument, however, the questioning seemed less about the nature of the class action certification and more a direct challenge to the premise of the lawsuit. A vital claim of the case is that Wal-Mart has an overarching company “culture” that ensures uniformity throughout its stores, yet headquarters grants local managers unlimited discretion to decide workers’ pay and promotions.  This somewhat inconsistent proposition concerned some of the justices, including Justice Kennedy whose vote is crucial to the disposition of the case.  Much of the questioning focused on whether the allegations of bias and discrimination shared legal and factual commonality across the entire class of women plaintiffs.  Ultimately, it is unclear where the oral argument leaves the lawsuit, though the line of questioning suggested the suit appears unlikely to survive as a class suit, at least in its present form.