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Dukes lawsuit against Wal-Mart in California can attempt class status: Judge

<i>Dukes</i> lawsuit against Wal-Mart in California can attempt class status: Judge

A federal judge has refused to dismiss the California-based litigation in the Betty Dukes v. Wal-Mart Stores Inc. gender discrimination case, ruling that plaintiffs should be given the opportunity to submit a motion for class certification.

In June 2011, the U.S. Supreme Court ruled against a proposed class of some 1.5 million members nationwide in the case, holding that the “respondents have not identified a common mode of exercising discretion that pervades the company.” Plaintiffs subsequently refiled the case in California and Texas.

Wal-Mart had moved to dismiss the case in California, “arguing chiefly that the newly proposed class suffers — albeit on a smaller scale — from the same kinds of problems that the Supreme Court said barred nationwide class certification,” said U.S. District Court Judge Charles R. Breyer in his ruling Friday in San Francisco.

Judge Breyer said, however, that plaintiffs in the case should be permitted to introduce a motion for class certification. “With rare exceptions, the appropriate vehicle for testing the sufficiency of class allegations is a motion for class certification. This case is not one of the exceptions,” he said.

“Because plaintiffs have proposed a class that could be certified if a showing consistent with the Supreme Court's decision were made, this order reserves for later determination whether plaintiffs' evidence suffices,” said Judge Breyer.

Judge Breyer said he “is not prepared to deny (plaintiffs) an opportunity to marshal and present evidence in support of their class allegations.”

However, Judge Breyer also said in his ruling that “Wal-Mart argues with some force that the persisting heterogeneity of the proposed class makes unlikely a showing of commonality under any theory.”


While plaintiffs “have focused their challenge on the allegedly biased decisions made by a group of regional, district and store managers, they must still prove that every decision-maker in that group — perhaps 400 or so under the corporate structure alleged … operated under a common policy or mode of decision-making.”

He set Feb. 15, 2013, for a hearing on the plaintiff's motion for class certification.

Theodore J. Boutrous Jr., a partner with Gibson Dunn & Crutcher L.L.P. in Los Angeles, who represents Wal-Mart, said in a statement, “The court simply ruled that it will follow the usual procedure and allow plaintiffs to file a motion for class certification rather than addressing the issue at the motion to dismiss stage.

“The ruling does not address whether the claims meet the demanding class certification standards established by the Supreme Court in this case, but it sets a high bar for plaintiffs to meet, and we believe they cannot possibly do so.

“The purported statewide class the plaintiffs now allege is no more appropriate than the nationwide class the Supreme Court has already rejected. As we have said all along, these claims are unsuitable for class treatment because the situations of each individual are so different, and because the claims of these five plaintiffs are not representative of the hundreds of thousands of women who work at Wal-Mart. Wal-Mart has had a strong policy in place against discrimination well before the lawsuit was filed and continues to be a great place for women to work and advance.”

However, Brad Seligman, of counsel to law firm Lewis, Feinberg, Lee, Renaker & Jackson P.C. in Oakland, Calif., who is plaintiff lead counsel on behalf of the Berkley, Calif.-based Impact Fund, said in a statement, “We have maintained all along that the Supreme Court's decision did not preclude us from seeking justice for the women of Wal-Mart through class actions consistent with its new guidelines and standards, nor did the court rule on the merits of the case. This decision vindicates our argument.”

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