Opposing Certification of a Class Based on Potentially Unreliable Expert Testimony
Widely considered to be one of the most important business and employment cases before the Supreme Court in the October 2010 term, Wal-Mart v. Dukes was a class-action sex-discrimination lawsuit brought against Wal-Mart alleging discriminatory employment practices by Wal-Mart with respect to its female employees. At issue in the case was Wal-Mart’s challenge to the California federal district court’s certification of a plaintiff class consisting of approximately 1.5 million women employed by Wal-Mart at its 3,400 stores throughout the United States. Although most of the decision-making called into question by the plaintiffs took place at the store level and involved the discretion of local managers and supervisors acting largely on the basis of local, individualized factors, the Ninth Circuit, in a sharply divided en banc decision, upheld the district court’s certification order, although it reduced the size of the class to approximately 500,000.
The Supreme Court granted Wal-Mart’s petition for certiorari to determine two questions: (1) whether the certification was consistent with the requirements of Fed. R. Civ. P. 23(a) (i.e., whether the California courts erred in finding sufficient commonality amongst the putative class members to warrant certification under Fed.R.Civ.P. 23(a)(2)) and (2) whether the monetary awards sought by the plaintiffs precluded the action from being brought under Fed. R. Civ. P. 23(b)(2), which explicitly provides only for declaratory and injunctive relief.
NELF, with co-amicus Atlantic Legal Foundation, filed an amicus brief in support of Wal-Mart on the first question, specifically focusing on the district court’s refusal (affirmed by the Ninth Circuit) to entertain Wal-Mart’s Daubert objection to the testimony of an expert that plaintiffs proffered to show commonality. The district court had ruled that because a Daubert inquiry might impinge on the merits, it was not the proper standard for the reliability of expert testimony at the certification stage. In their brief, NELF and ALF argued that Federal Rule of Evidence 702 and the Court’s holding in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) create a single standard for evaluating the reliability of expert testimony in federal courts and that use of the standard at the certification stage is no less important than at the trial stage—indeed, it would seem to be required by the Supreme Court’s mandate that, before certifying a class, courts must conduct a “rigorous analysis” of how plaintiffs propose to satisfy Rule 23(a)’s requirements.
On June 20, 2011, the Supreme Court reversed the Ninth Circuit, ruling unanimously that the plaintiffs had brought their class action under the wrong section of Fed. R. Civ. P. 23 (all of the Justices agreed that the monetary relief sought by the plaintiffs was not merely incidental to any injunctive or declaratory relief that might be available) and ruling 5-4 that the plaintiffs had failed to satisfy the commonality requirement for a class action under Rule 23. Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). While the Court did not decide the issue briefed by NELF and ALF, in his opinion for the majority on the commonality issue, Justice Scalia stated that the majority “doubted” that the District Court had been correct when it concluded that Daubert did not apply to expert testimony at the class-action certification stage. See 131 S.Ct. at 2553-54.
Widely considered to be one of the most important business and employment cases before the Supreme Court in the October 2010 term, Wal-Mart v. Dukes was a class-action sex-discrimination lawsuit brought against Wal-Mart alleging discriminatory employment practices by Wal-Mart with respect to its female employees. At issue in the case was Wal-Mart’s challenge to the California federal district court’s certification of a plaintiff class consisting of approximately 1.5 million women employed by Wal-Mart at its 3,400 stores throughout the United States. Although most of the decision-making called into question by the plaintiffs took place at the store level and involved the discretion of local managers and supervisors acting largely on the basis of local, individualized factors, the Ninth Circuit, in a sharply divided en banc decision, upheld the district court’s certification order, although it reduced the size of the class to approximately 500,000.
The Supreme Court granted Wal-Mart’s petition for certiorari to determine two questions: (1) whether the certification was consistent with the requirements of Fed. R. Civ. P. 23(a) (i.e., whether the California courts erred in finding sufficient commonality amongst the putative class members to warrant certification under Fed.R.Civ.P. 23(a)(2)) and (2) whether the monetary awards sought by the plaintiffs precluded the action from being brought under Fed. R. Civ. P. 23(b)(2), which explicitly provides only for declaratory and injunctive relief.
NELF, with co-amicus Atlantic Legal Foundation, filed an amicus brief in support of Wal-Mart on the first question, specifically focusing on the district court’s refusal (affirmed by the Ninth Circuit) to entertain Wal-Mart’s Daubert objection to the testimony of an expert that plaintiffs proffered to show commonality. The district court had ruled that because a Daubert inquiry might impinge on the merits, it was not the proper standard for the reliability of expert testimony at the certification stage. In their brief, NELF and ALF argued that Federal Rule of Evidence 702 and the Court’s holding in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) create a single standard for evaluating the reliability of expert testimony in federal courts and that use of the standard at the certification stage is no less important than at the trial stage—indeed, it would seem to be required by the Supreme Court’s mandate that, before certifying a class, courts must conduct a “rigorous analysis” of how plaintiffs propose to satisfy Rule 23(a)’s requirements.
On June 20, 2011, the Supreme Court reversed the Ninth Circuit, ruling unanimously that the plaintiffs had brought their class action under the wrong section of Fed. R. Civ. P. 23 (all of the Justices agreed that the monetary relief sought by the plaintiffs was not merely incidental to any injunctive or declaratory relief that might be available) and ruling 5-4 that the plaintiffs had failed to satisfy the commonality requirement for a class action under Rule 23. Wal-Mart v. Dukes, 131 S.Ct. 2541 (2011). While the Court did not decide the issue briefed by NELF and ALF, in his opinion for the majority on the commonality issue, Justice Scalia stated that the majority “doubted” that the District Court had been correct when it concluded that Daubert did not apply to expert testimony at the class-action certification stage. See 131 S.Ct. at 2553-54.
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