The Future of Class Action Litigation Discussed at ABA Annual Meeting

Panelists discussed the implications of Dukes v. Walmart, the largest class certification case in civil rights history

By Alexandra Buller
American Bar Association News Service
August 5, 2011

TORONTO — “Walmart raises the bar for plaintiffs, but it is not the death knell for class action litigation,” Roberta Steele, a plaintiff’s attorney at the firm Goldstein, Demhak, Baller, Borgen & Dardarian, in Oakland, Calif., said. “The plaintiff’s bar believes that appropriate class action cases can and will continue.”

A panel of prominent litigators explored the implications of the U.S. Supreme Court’s reversal of the 9^th Circuit’s decision upholding the certification of a gender discrimination class of more than 1.5 million female Walmart employees during the program “Class Action Litigation After Dukes v. Walmart” on Aug. 4 at the American Bar Association Annual Meeting.

Panelists explained that the ruling tightened the standard of certification as a class action suit. “If you take this and the holding in AT&T Mobility v. Concepcion decision into consideration, it shows the line the Supreme Court is trying to draw,” said Barbara D’Aquila, a defense attorney at Fulbright & Jaworski, LLP, in Minneapolis. “Class action dispute resolutions have limitations,” she said.

Panelists also agreed that the decision clarified what needs to happen in order to prove commonalities among plaintiffs, for consideration as a class. “Now plaintiffs know to limit the size and geographic location of class action,” said Steele. “It refocused people on what needs to happen – there needs to be a common question and a common remedy,” she continued.

Steele also explained that despite the U.S. Supreme Court’s decision in Dukes, Congress can overturn the decision. “Congress has a history of overturning Supreme Court decisions that have attempted to limit the scope of civil rights issues,” she said. “Generally when Congress moves on reversing these issues, they go beyond what the Supreme Court did, which is a distinct possibility,” she continued.

D’Aquila added in agreement, “Congress does occasionally overturn decisions and make things worse for the defense in class action cases.”

Panelists with experience on both sides of class action litigation agreed that Dukes can be distinguished from other class actions because of the size and scope of the case.

Although panelists discussed possible implications of the Dukes decision, they agreed that there was no telling what the effects of the decision will be.

“It has yet to be determined if there are brighter days ahead for employers or if the good times will continue to roll for employees,” T. Warren Jackson of the DIRECTV Group in Sacramento, Calif.,  said.