Supreme Court dismisses class action case against Wal-Mart

On Monday the United States Supreme Court issued it’s decision in the case of Wal-Mart v. Dukes.  If you are not familiar with the facts, let me give you a brief description.

Three current or former female employees of Wal-Mart filed suit claiming the company engaged in sexual discrimination when it came to salaries and promotions.  This would not be particularly worthy of a  Supreme Court opinion but for the fact that their attorneys decided to turn this into a class action to include some 1.5 million current and former female employees.  One could conclude that there aren’t a lot of attorneys’ fees generated by 3 clients, but 1.5 million clients is an entirely different matter.

The sole question presented was whether this was a permissible use of the federal rule dealing with class actions.  The lower courts, including the Ninth Circuit Court of Appeals held that it was.  The Supreme Court held that it was not.

Keep in mind when you read what follows that Wal-Mart allows its managers to make these employment decisions, and that there are thousands of Wal-Mart managers throughout the company.

Here is what the plaintiffs claimed, at page 8.  Wal-Mart’s

…’strong and corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decision making of each one of Wal-Mart’s thousands of managers–thereby making every woman in the company the victim of one common discriminatory practice. [emphasis supplied]

In finding that this claim did not meet the “commonality” test for bring a class action, the Court stated, beginning at page 15,

Here [plaintiffs] wish to sue about literally millions of employment decisions at once.  Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all those class members’ claims for relief will produce a common answer to the crucial question why was I disfavored. [emphasis in original]

Perhaps the best illustration of why this matter didn’t deserve class action status is the plan proposed by the plaintiffs and approved by the lower courts to prove their case.  You can find this at page 31.

A sample set of class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined…  The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery.

Sorry… no justice there even for those who actually may have suffered discrimination, but a real big pay day for the attorneys.

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The Sound Off Sister was an Assistant United States Attorney for the Southern District of Florida, and special trial attorney for the Department of Justice, Criminal Division; a partner in the Florida law firm of Shutts & Bowen, and an adjunct professor at the University of Miami, School of Law. The Sound Off Sister offers frequent commentary concerning legislation making its way through Congress, including the health reform legislation passed in early 2010.


  1. essneff on June 20, 2011 at 10:52 pm


    The best explanation of the decision I heard all day!? You summed it up perfectly… my question is how did?this case ever make it to the Supremes?

  2. ricbee on June 21, 2011 at 8:58 am

    A good case for “tort reform”.

  3. GdavidH on June 21, 2011 at 9:54 am

    “Sorry? no justice there even for those who actually may have suffered discrimination, but a real big pay day for the attorneys.”

    And could you imagine the potential pay day if the decision had gone the other way? How many additional, similar class action suits could be filed? ?I’m conviced the?plaintiffs are just pawns to the pond scum representing them.

  4. sammy22 on June 21, 2011 at 11:33 am

    The BIG losers: the lawyers.

  5. Lynn on June 23, 2011 at 7:20 am

    This case blew my mind. Sammy you are right.? The Supreme Court has risen in my eyes, since the disasterous New London decision.


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