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.


Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.