I talked last week with Steve Berstler, the producer and anchor of LexisNexis® Legal News audio podcasts, regarding the Supreme Court’s decision in Wal-Mart v. Dukes. The highlights of our conversation are featured in the Legal News Podcast for June 21, 2011.
As discussed in the podcast, the Court ruled that (1) the plaintiffs could not meet the commonality requirement of Rule 23(a)(2), requiring there be a question of law or fact common to the class, and (2) plaintiffs were improperly certified under 23(b)(2). In explaining the commonality requirement, I was thrilled to see that Justice Scalia cited an article by one of my favorite law professors from Vanderbilt – Professor Richard Nagareda. Professor Nagareda explained that the commonality requirement is easy to misread since “any competently crafted class complaint literally raises common questions.” However, the mere fact that an employee has suffered a Title VII injury does not mean that the employee’s claims can automatically be productively litigated with others.
For more in-depth coverage of Dukes, check out SCOTUSblog and its analysis of Wal-Mart’s two messages.
I also recorded a podcast just prior to the Dukes decision – discussing employment law class actions in 2011. You can listen to that podcast here. It covers some of the big cases and verdicts in 2011 and provides a summary of employment practices that can have the effect of disproportionately excluding certain groups – which can lead to class action litigation.