Complex Litigation: To (b)(2) or Not to (b)(2)?

Abstract

This paper is a commentary and analysis of the district court class certification in Dukes v. Wal-Mart Stores, Inc., (N.D. Cal. 2004). The class consists of approximately 1.5 million women employees at 3,400 Wal-Mart stores during the past five years, and is pursued as a Title VII employment discrimination class. The court’s class certification decision focused on the plaintiffs’ allegations of a corporate culture of gender stereotyping that fostered workplace discrimination. The district court certified a Rule 23(b)(2) injunctive relief and punitive damage class, with notice and opt-out rights. The class certification raised issues of the appropriateness of certifying a Rule (b)(2) class certification, and whether class claimants can recover damages in such a class. The article discusses conflicting circuit court decisions concerning certification of Rule 23(b)(2) classes, including the Fifth Circuit’s decision in Allison v. Citgo, 151 F.3d 402 (1998), repudiating the ability of a class to recover damages in a Title VII Rule 23(b)(2) action. On the other hand, other circuits including the Second, Seventh, and Ninth Circuits, have repudiated the Fifth Circuit’s approach in Allison. The Dukes class certification, following Ninth Circuit precedent in Molski v. Gleich, heightens this confusion concerning the appropriate use of the Rule 23(b)(2) class category.