Dukes v. Wal-Mart: Some Closed Doors and Open Issues

The U.S. Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes is likely to change the class action landscape for the foreseeable future. Dukes has, of course, clarified the standard for determining commonality in class actions and narrowed the circumstances in which Federal Rule of Civil Procedure 23(b)(2) class actions may include claims for back pay. Of equal significance, Dukes has resolved a number of important issues that have plagued employment class actions generally. This Littler Report discusses two of those significant issues, which may provide a sounder analytical framework for determining whether employment cases should proceed on a class or collective action basis: (1) the significance of individual evidence at the certification and liability stages as well as at the damages stage; and (2) the problem with representative testimony and "Trial by Formula."

While Dukes resolved many issues for employers facing class actions, it has not, as some predicted, meant the end of the road for employment class actions. Discrimination class actions cases are still being filed and, as discussed below, social science testimony may still continue to be part of those cases.

Collective actions under the Fair Labor Standards Act (FLSA) also continue to be filed — in droves. In fact, more than 90% of the employment class actions filed in recent years have been FLSA collective actions, and this trend appears to be continuing unabated. However, as discussed in this Report, there are strong legal and policy arguments that the principles underlying Dukes are equally applicable to collective actions under the FLSA.

Finally, some of the post-Dukes decisions that reflect the impact the Supreme Court's decision has had on employment class and collective actions are highlighted.

To read the Littler Report, please click here.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.