Tuesday was busy, believe it or not.  I hadn’t finished my presentation for the Washington County Democratic Womens’ meeting, even with the jump start from my Research Assistant, Adam Kent. I’d been asked to speak about the Wal-mart v. Dukes case, which many of you know was a procedural case, at least in terms of the issues, but it has important implications for employment law class actions.  Not being the Civ. Pro. Expert, I needed to take time to get up to speed on the ins and outs of the case.  In addition to that, I had to get ready for the Southeast Association of Law Schools (SEALS) Conference panel on which I was to talk about the employment related immigration issues bubbling up from the states. That talk would be on Friday at 10:00, which was quickly approaching.

I added one new blog post (which was a lot more fun than prepping for my talk) and turned my attention to Dukes.  The case stemmed from a class action suit brought by female Wal-Mart employees and former employees.  The women alleged that, “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Wal-Mart’s thousands of managers–thereby making every woman at the company the victim of one common discriminatory practice.”  The plaintiffs sought injunctive and declaratory relief, punitive damages, and back pay.

Plaintiff Betty Dukes talks to the press on the steps of the U.S. Supreme Court after the class action lawsuit Dukes v. Wal-Mart was argued before the court in Washington

The court looked at “whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2).”  Specifically, the court addressed two issues:  The first was ”commonality–the rule requiring a plaintiff to show that there are questions of law or fact common to the class,” as required by Rule 23(a)(2).  The court ruled the class was not able to meet the “common question” requirement. The second issue was whether the plaintiffs’ claims for back pay were properly certified under Federal Rule of Civil Procedure 23(b)(2).  The court ruled they were not, “where (as here) the monetary relief [was] not incidental to the injunctive or declaratory relief.”

Basically, the challenge for the plaintiffs was the size of the class.  One way of approaching the commonality issue was to offer proof that the discretion left to supervisors resulted in women being treated less favorably, and that this was common to the class (women employees and former employees). Another way of looking at it is to focus on the number of individual decision-makers and types and locations of stores, and decide that those differences in circumstances meant that the class could not arise from a “common question.”  The court decided the latter.  All you Civ Pro jocks out there, feel free to correct or amend my summary.  I am attempting here to make the case accessible to all readers.

After a morning of thinking about how best to structure the talk that evening, I decided that rather than sit in my office, I would get out for lunch (a bit of work avoidance).  Fortunately Susan Schell was a willing accomplice. (That’s not really fair, she didn’t know I was procrastinating.) We went to Hunan Manor for the luncheon buffet and had a chance to catch up.  She made me laugh with stories about her dog Coop refusing to walk in the heat.  When she’d take him out, he’d just lie down and roll over on his back, refusing to walk. After lunch it was time to face the music again, so I enlisted Professor Sheppard in my work avoidance scheme and we went over to see the newly renovated Davis Hall.  As many of you might recall, Davis Hall was home to our clinics, law reviews and the National Agricultural Law Center for many years.  At the time the digs weren’t too fancy, but based on how long the redo had taken, we suspected the University Relations folks were living in fancy digs (comparatively speaking, of course).


So, being the curious, uninhibited people we are, we explained our mission to the receptionist who smiled politely as we poked around. The building is LEED certified and has been beautifully rehabbed.  We stopped on the second floor (of three) to interrupt Steve Voorhies who was doing what I should have been doing—working.  He gave us a tour, and my favorite place in the entire building is the Bat Cave which is actually Russell Cothren’s photo studio in the basement.  There’s also a sound room down there too, but it didn’t have the bat cave logo. (You’ll just have to see for yourself).

After stalling a while (probably too long) I returned to finish my remarks for the talk that evening and work on the presentation for Friday.  Before too long, it was time to go. I met my host Roberta Billingsley, and she offered me an opportunity to eat, but I was still full from lunch with Susan. The group was gracious and there were a number of folks I knew there, including Tim Snively (President of the Washington County Bar Association—no pressure), Cristi Beaumont, Amy Driver , Michael Driver, Amy Estes and Lindsley Smith.  It was a great discussion and felt being back in the classroom with all the give and take.  All in all, though I had a hard time getting ready, it was a really engaged group and an enjoyable evening.  I still needed to get the SEALS talk done and that was tops on the agenda for Wednesday.