En Banc Rehearing in Wal-Mart Class Certification

Granted, the Wal-Mart class action isn’t a mass tort, but the Ninth Circuit’s previous decision that upheld certification of the largest class action to date bears significantly on class action law in general. In its original opinion, the Ninth Circuit opted for a “lower” Daubert standard, permitting sociologists and statisticians to testify about gender stereotyping and to raise an inference of class-wide gender discrimination through statistical analysis. (I’ve wrote an article on the Daubert issue a few years ago, which is available here.) The court further refused to adopt a bright line standard with regard to monetary damages in (b)(2) class actions, but suggested that where monetary relief is sought that the district court should consider the possibility of opt-out rights (a key question left open by the Supreme Court’s opinion in Phillips Petroleum v. Shutts).So, the en banc rehearing on Tuesday has garnered a good bit of media attention. Dan Levine of The Recorder covered the hearing. Here’s an excerpt:Gibson, Dunn & Crutcher partner Theodore Boutrous Jr. played to a packed house as he argued that the district court applied the wrong standard in granting certification to female Wal-Mart workers. He quickly ran into 9th Circuit Judge Marsha Berzon, a former labor lawyer who aggressively pointed out that the women didn’t have to prove actual discrimination at this point, just commonality of the class.Moments later, plaintiffs lawyer Brad Seligman of the Impact Fund met skeptical conservatives on the 11-member en banc panel. When Seligman explained that Wal-Mart broke the law when the company delegated promotion and pay authority to regional managers — who turned around and discriminated — Judge Pamela Rymer pounced, asking how plaintiffs could then claim a national class.But it was Judge Susan Graber, considered a moderate, who wondered whether the court was faced with an all-or-nothing proposition.”What are the range of options we have? It seems like there’s lots of ways to slice and dice this,” she said.Seligman agreed, saying the court could, for example, carve punitive damages out of the existing class certification — but allow claims for back pay to remain.ECB