The U.S. Supreme Court Signals That Wal-Mart Stores, Inc. V. Dukes Applies To Wage And Hour Class Actions
On October 3, 2011, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Wang v. Chinese Daily News, Inc., 623 F.3d 743 (9th Cir. 2010), and remanded it “for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011).” The Supreme Court did not provide any further analysis of the Wang decision in its granting of the petition for a writ of certiorari.
In Wang, a hybrid FLSA collective action and state-law wage and hour class action case involving employees at a single facility, the district court had granted certification of the class action under both Rule 23(b)(2) and 23(b)(3), and the case then proceeded to trial. The Ninth Circuit, after affirming the certification under Rule 23(b)(2), found it unnecessary to consider the certification under 23(b)(3). Now, on remand, the Ninth Circuit may consider both the Rule 23(b)(2) and 23(b)(3) certifications. Indeed, if the Ninth Circuit overrules the Rule 23(b)(2) certification, it will be required to address the 23(b)(3) certification. Although Wal-Mart v. Dukes did not analyze certification under Rule 23(b)(3), it did analyze Rule 23(a)(2), which is a prerequisite to any certification under Rules 23(b)(2) or 23(b)(3).
At a minimum, the Court’s remand is a signal that its decision in Wal-Mart v. Dukes is not limited to multi-facility Title VII cases or “intent” cases, but also applies to wage and hour cases. It also makes clear that Dukes applies to post-trial reviews. The true impact of Wal-Mart v. Dukes on wage and hour class actions remains to be seen, but it is clear that parties must now wrestle with Dukes in contexts going beyond the facts of the Wal-Mart case.
