The Supreme Court, not surprisingly, granted Wal-Mart's petition for certiorari today, agreeing to review the 500,000-member class certification decision from the Ninth Circuit, which had held 6-5 that the class could be certified, even though, as Judge Kozinski wrote, the class members
“held a multitude of jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors -- male and female -- subject to a variety of regional policies that all differed depending on each class member's job, location and period of employment.”
The Supreme Court's order is encouraging to those of us on the defense side, for at least three reasons.
First, a denial would have sustained a seriously unmanageable class action, and raised questions about whether class certification ever could be denied.
Second, and relatedly, the Ninth Circuit held that the case could be certified under Rule 23(b)(2), which has the advantage for plaintiffs that it does not require, as Rule 23(b)(3) does, that common questions predominate over individual issues. But 23(b)(2) is supposed to apply only where the principal relief sought is declaratory, with accompanying injunctive relief and perhaps some incidental monetary relief. Arguing, as the Ninth Circuit did here, that the 500,000 members of the proposed class are mainly looking for a declaration of rights, rather than for money, strains the bounds of reasonable argument. Again, sustaining that avoidance of the 23(b)(3) predominance requirement would so greatly expand the range of certifiable classes that it would be difficult to imagine a case not appropriate for class treatment.
Third, the Supreme Court added its own question to the mix, directing the parties to brief whether the certification of the class under Rule 23(b)(2) is consistent with the requirements of Rule 23(a). Most courts treat the Rule 23(a) requirements of adequacy, typicality, and commonality very leniently, saving the more careful scrutiny for the Rule 23(b) analysis. If that is to be continued, though, then there is not a lot of inconsistency between Rule 23(a) and 23(b)(2). So the Court's expression of interest in the interaction between these rules suggests that the Court may be interested in considering whether the Rule 23(a) requirements should have more teeth -- and, if so, that would obviously be beneficial to defendants.
In any case, the plaintiffs' and defense bar will both benefit from clarity about the use of Rule 23(b)(2) and the certification standards generally, so everyone will be watching this one very closely.