Implications of Wal-Mart v. Dukes for Federal Antitrust Class Actions

On June 20, 2011, the United States Supreme Court ruled that “one of the most expansive class actions ever” had been improperly certified under Federal Rule of Civil Procedure 23(a) and (b). The proposed class included 1,500,000 current and former female employees of Wal-Mart, who alleged that the nationwide retailer had discriminated against them in pay and promotion matters. Although plaintiffs’ claims concerned alleged violations of Title VII, the implications of the Court’s decision extend well beyond the employment discrimination context.

In Wal-Mart v. Dukes, the Supreme Court confirmed a growing trend among the federal courts of appeals, by holding that plaintiffs must prove, not merely allege, that they can satisfy the requirements for class certification under Rule 23. The Court focused in particular on Rule 23(a)(2)’s requirement that common questions of law or fact exist among the class, insisting that district courts conduct a rigorous analysis of evidence regarding commonality at the certification stage even where such analysis overlaps with the merits. As four dissenting justices acknowledged, this ruling will make it harder for plaintiffs to obtain class certification in all types of actions-including antitrust cases.