The U.S. Supreme Court today granted review of a Ninth Circuit ruling that allowed a class of California women to pursue sex discrimination claims against Walmart. Order List, Dec. 6, 2010, at 2.
The Ninth Circuit held en banc that the case could move ahead as a class action under Rule 23(b)(2) on the women's claims for injunctive, declaratory, and back pay relief. The 6-5 court also sent the case back to the district court for a decision on whether the class's claims for punitive damages could proceed on a class basis under Rule 23(b)(2) or 23(b)(3). Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (en banc).
The Court's ruling in Dukes will likely settle a split in the courts of appeals over whether and when courts may certify class actions that seek money together with injunctive or declaratory relief. Some circuit courts, such as the Second and the Ninth, tend to hold that even a claim for big monetary relief can fit within the Rule 23(b)(2) framework so long as the class also seeks serious injunctive and declaratory relief. Other circuits, notably the Fifth, almost categorically disallow classes where the plaintiffs ask for any cash other than as purely incidental relief.