Monday, November 22, 2010

Dukes v. Wal-Mart Conference Tomorrow

Tomorrow is a big day as far as class actions go.  The U.S. Supreme Court is scheduled vote on whether or not to grant certiorari in the Dukes v. Wal-Mart case.

The issue that everyone is talking about is whether the Ninth Circuit made a mistake by allowing the class to go forward.  If the Court does decide to hear the case, it would at least be a good sign for Wal-Mart, and several issues make me think they will take the case, overrule the Ninth Circuit, but maybe on narrowed issues.

First, Wal-Mart counsel did a great job in their writ showing that there is a three-way split in the circuits.  The Court loves to clarify the law, especially when there is a split of opinion in the lower courts.  Second, the Ninth Circuit opinion being appealed was en banc, with the result being a 6-5 vote, and a witty dissent by Judge Kozinski, a well respected judge.  Third, there are tremendous implications if the class is allowed to stand.  I must think that if a class of potentially 500,000 is allowed to continue under the multitude of facts, then many aspects of Federal Rule 23 which governs class actions, will be rendered useless.

My opinion is that the case needs to be taken up and reversed.  However, if it does get accepted for review, several of our class actions are going to come to a grinding halt because they are pre-certification, and I do not believe anyone will want to go through the class certification stage again if the Court provides additional guidance on the Rule 23 analysis.

UPDATE 11/29/10:  The SCOTUS orders for today are out.  No action on this case today.