The U.S. Supreme Court has agreed to review a Ninth Circuit ruling approving the certification of a class of approximately 1.5 million current or former female employees of Wal-Mart.
The case was filed under Title VII
of the Civil Right Act, and the plaintiffs allege the company engaged in
discriminatory pay and promotion policies and practices across
Wal-Mart’s 3,400 stores since 1998. The issue on appeal concerns whether Federal
Rule of Civil Procedure 23(b)(2) (which relates only to
class action claims for injunctive or declaratory relief) was a proper
basis for certifying the plaintiffs’ claims for monetary relief under
Title VII.
The Ninth Circuit had held that the claims for monetary relief did
not “predominate” over the claims for injunctive and declaratory relief. In its petition for Supreme Court review, the
employer argued that the Ninth Circuit’s approach, which rejected the
two existing approaches adopted by other U.S. Courts of Appeals, was
“clearly wrong” because it conflicted with the language of Rule 23(b)(2)
and with Supreme Court precedent.
On its own initiative, the Supreme Court also ordered the parties to
brief and argue a second issue: whether the underlying certification
order is consistent with Rule 23(a), which sets forth the class action
requirements of numerosity, commonality, typicality, and adequacy of
representation.