Master Landmark Supreme Court decision tightening Rule 23 commonality and limiting the use of Rule 23(b)(2) for monetary relief in class actions. with this comprehensive case brief.
Wal-Mart Stores v. Dukes is one of the Supreme Court's most consequential modern class action cases. It recalibrated the threshold for class certification under Federal Rule of Civil Procedure 23, especially the commonality requirement of Rule 23(a)(2), and clarified the limits of Rule 23(b)(2) when plaintiffs seek monetary relief. By insisting that plaintiffs demonstrate a common contention capable of resolving an issue central to all class members in one stroke, the Court raised the evidentiary and analytical rigor required at certification.
Beyond employment discrimination, Dukes reshaped class litigation strategy across subject areas. It endorsed close judicial scrutiny at the certification stage, permitted overlap between merits and certification inquiries, cast doubt on social framework evidence presented in generalized terms, and rejected trial by formula methods that abridge a defendant's right to assert individualized defenses. As a result, plaintiffs must now craft tighter, more cohesive classes and often proceed under Rule 23(b)(3) with its predominance, superiority, and notice requirements when seeking monetary relief.
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011)
Wal-Mart, the nation's largest private employer, operated thousands of stores nationwide with a corporate policy that delegated substantial discretion over pay and promotions to local managers. A proposed nationwide class of approximately 1.5 million current and former female employees alleged systemic sex discrimination in violation of Title VII, contending that decentralized discretion operated against a backdrop of a strong and uniform corporate culture that permitted gender stereotyping. Plaintiffs offered statistical analyses showing disparities in pay and promotions between men and women, anecdotal declarations from female employees across multiple regions, and expert social framework testimony suggesting that a large, discretionary system could foster biased outcomes absent safeguards. They sought injunctive and declaratory relief, as well as backpay, and moved to certify a class under Rule 23(b)(2). The district court certified the nationwide class, and the Ninth Circuit largely affirmed. Wal-Mart petitioned for certiorari, arguing that plaintiffs failed to establish commonality under Rule 23(a)(2) and that backpay claims were improperly certified under Rule 23(b)(2).
1) Whether the proposed nationwide class of female employees satisfied Rule 23(a)(2)'s commonality requirement where alleged discrimination arose from local managers' discretionary pay and promotion decisions. 2) Whether claims for backpay may be certified under Rule 23(b)(2), which is designed for injunctive or declaratory relief applicable to the class as a whole.
Class certification requires satisfaction of Rule 23(a): numerosity, commonality, typicality, and adequacy. For Rule 23(a)(2) commonality, plaintiffs must show not merely common questions, but a common contention capable of classwide resolution such that its truth or falsity will resolve an issue central to the claims of each member in one stroke. Courts must conduct a rigorous analysis, which may overlap with the merits, to determine whether Rule 23 is met. Under Rule 23(b)(2), certification is appropriate when the party opposing the class has acted or refused to act on grounds that apply generally to the class, making uniform injunctive or declaratory relief appropriate; individualized monetary claims that are not incidental to such relief generally cannot be certified under Rule 23(b)(2). A class action may not abridge a party's substantive rights under the Rules Enabling Act, and Title VII entitles a defendant to individualized determinations and defenses regarding backpay.
The Supreme Court reversed class certification. The proposed class failed to satisfy Rule 23(a)(2) commonality because plaintiffs did not identify a common contention whose determination would resolve a central issue for all class members. In addition, claims for backpay could not be certified under Rule 23(b)(2) because such monetary relief is not incidental to injunctive or declaratory relief and would deprive Wal-Mart of its right to individualized defenses. The Court also rejected the use of trial by formula to adjudicate backpay.
Commonality: The majority, per Justice Scalia, emphasized that commonality requires more than the existence of shared questions; it requires a unifying glue capable of generating common answers. Plaintiffs identified only a general policy of delegating discretion to local managers, which is the opposite of a uniform discriminatory policy. Showing that thousands of managers across thousands of stores exercised discretion in a discriminatory manner requires proof that the company operated under a general policy of discrimination. The offered evidence did not supply the necessary glue. The expert social framework testimony was too theoretical and did not identify a specific companywide discriminatory mechanism. Plaintiffs' statistical evidence masked significant regional variation and did not isolate the cause of disparities to a uniform corporate practice. The anecdotal evidence, though not irrelevant, was too sparse relative to the enormous class size and unevenly distributed across regions. Without a common contention whose resolution would determine liability in one stroke for all class members, Rule 23(a)(2) was not satisfied. Rigorous analysis and merits overlap: The Court reiterated that certification demands a rigorous analysis and may require probing into the merits insofar as they overlap with Rule 23 requirements. It signaled skepticism that expert opinions can be insulated from reliability scrutiny at the certification stage, indicating that courts may apply Daubert principles when assessing whether expert evidence credibly supports commonality. Rule 23(b)(2) and monetary relief: The Court unanimously held that claims for individualized monetary relief such as backpay do not fit within Rule 23(b)(2) because that subdivision is tailored for indivisible injunctive or declaratory relief. Backpay would require individualized determinations and would foreclose Wal-Mart's entitlement under Title VII to present individualized defenses, such as performance-based reasons for pay or promotion decisions. The Court rejected the proposed trial by formula approach that would have statistically sampled a subset of claims and extrapolated liability and backpay to the class, holding that such a procedure would abridge the defendant's rights and contravene the Rules Enabling Act and Title VII's requirement for individualized proceedings. Separate views: Justice Ginsburg, joined by three Justices, agreed that backpay could not be certified under Rule 23(b)(2) but would have found Rule 23(a)(2) commonality satisfied on the record and would have remanded for consideration of certification under Rule 23(b)(3), which provides for damages classes with predominance, superiority, and class notice and opt-out rights.
Dukes tightened the commonality requirement, insisting on a cohesive, classwide issue that can be resolved in one stroke. It authorized courts to examine merits-related evidence at certification and encouraged reliability screening of expert proof. The decision sharply limits the use of Rule 23(b)(2) for claims involving monetary relief and bars trial by formula that strips defendants of individualized defenses. Practically, plaintiffs now more often pursue narrower, tailored classes, bring claims under Rule 23(b)(3) with damages and predominance showings, or use subclasses tied to specific policies or decision-makers. For law students, Dukes is foundational for understanding how Rule 23 shapes litigation structure, evidence, and strategy.
Plaintiffs must identify a specific common contention that is capable of resolving an issue central to all class members in one stroke. It is not enough that class members raise similar questions; there must be unifying glue that will generate common answers, such as a uniform discriminatory policy or practice causing the alleged injury across the class.
Rule 23(b)(2) is designed for indivisible injunctive or declaratory relief applicable to the class as a whole. Backpay requires individualized determinations and would deprive the defendant of the right to present individualized defenses under Title VII. The Court therefore held that such monetary relief is not incidental and cannot be certified under (b)(2).
Yes. The Court reaffirmed that certification demands a rigorous analysis, and that inquiry can overlap with the merits when necessary to determine whether Rule 23 is satisfied. Courts may scrutinize expert evidence and do not accept conclusory or purely theoretical opinions at face value at the certification stage.
Trial by formula refers to using statistical sampling of a subset of class members to extrapolate liability and monetary relief to the entire class. The Court rejected this because it abridges a defendant's substantive rights, violates the Rules Enabling Act, and conflicts with Title VII's requirement for individualized determinations and defenses regarding backpay.
Potentially, yes. The dissent suggested that commonality might be shown for narrower classes. Plaintiffs might attempt smaller, region- or job-specific classes tied to particular policies or decision-makers, or proceed under Rule 23(b)(3) for damages with a predominance showing and the procedural protections of notice and opt-out.
Wal-Mart v. Dukes is a watershed in class certification doctrine. It reframed commonality as a demanding inquiry that requires proof of a unifying classwide contention and invited courts to rigorously examine the evidence, even when that examination overlaps with the merits. The Court also confined Rule 23(b)(2) to true injunctive or declaratory relief and prohibited statistical shortcuts that impair individualized defenses.
For litigants and students, the case underscores that class actions live or die at certification. Plaintiffs must marshal evidence that connects the dots across the class, often by targeting specific policies and decision-makers or by using Rule 23(b)(3). Defendants, in turn, can resist certification by highlighting heterogeneity, insisting on individualized determinations, and challenging the reliability of plaintiffs' expert and statistical showings.