Dukes V. Wal-Mart: Some Closed Doors And Open Issues - Part 1

I. INTRODUCTION

The U.S. Supreme Court's opinion in Wal-Mart Stores, Inc. v. Dukes¹ 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."