Dissent highlights weaknesses in Wal-Mart class action

Last week the Ninth Circuit affirmed the creation of the largest class action in history:  1.5 million current and former female Wal-Mart employees claiming discrimination in promotions.  The ruling was hailed as a landmark, but it may be only a temporary one.  A strong dissent by Andrew Kleinfeld, one of the judges on the three-judge panel, raises questions about whether majority's ruling will survive later review, by either an en banc panel of the Ninth Circuit or the Supreme Court.  Judge Kleinfeld dissented on several grounds, including these:

1.  To proceed as a class action, a case must present issues of fact or law common to the class.  Judge Kleinfeld writes that the only issue shared by the huge class is whether Wal-Mart's promotion criteria are "excessively subjective."  He contends that this is too slim a reed on which to hang the case; the existence of subjective criteria is not the same as employment discrimination. 

2.  Plaintiffs claim that injunctive or declaratory relief is an appropriate remedy for the class as a whole, but in fact many class members no longer work for Wal-Mart and cannot benefit from an injunction requiring, for example, the adoption of objective criteria for promotions.

3.  The district court order requires that the jury, if it rules in favor of plaintiffs, may set a lump sum amount of punitive damages.  A special master would then devise a formula to distribute the funds to individual plaintiffs, without any adjudication as to whether each individual plaintiff was in fact injured by discrimination.  Judge Kleinfeld contends that this methodology violates Wal-Mart's due process rights.

Given the trend within the Ninth Circuit of deciding more cases en banc -- which means a rehearing by a 15-judge panel -- last week's decision may not be the final word from the Ninth Circuit.

See coverage of the Dukes v. Wal-Mart ruling here, here, here, and here.