Adapting — continued from Page 18
Court, the purpose of this heightened standard is to produce cohesion amongst the class. The majority wrote that “[w]ithout some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer . . . .” Ultimately, the Majority held that
the Dukes plaintiffs did not have enough in common to move forward as a class. According to the majority, the women could not show that Wal-Mart “operated under a general policy of discrimina- tion.” After all, “Wal-Mart’s announced policy [forbade] sex discrimination.” The Court held that “[b]ecause [the] respon- dents provide no convincing proof of a companywide discriminatory pay and promotion policy, [it] concluded that they
have not established the existence of any common question.” The Dissenting Opinion Justice Ginsburg, joined in the
Dissent by Justices Breyer, Sotomayor, and Kagan, argued that the plaintiffs should have been afforded the opportunity to plead their case under another of the class action rules. The Dissent suggested that a “common issue” for Rule 23(a) pur- poses is just that: a “common issue.” Justice Ginsburg argued that the Dukes plaintiffs did allege a discriminatory com- pany-wide payment and promotion proce- dure influenced by unconscious bias and fully substantiated by proffered evidence. Specifically, the Dissent stated that the evidence the plaintiffs offered “suggests that gender bias suffused Wal-Mart’s com- pany culture,” and that the difference in
pay and promotions between male and female workers could only be explained by bias, not “neutral variables.” Justice Ginsburg further stated that
the Majority’s approach of focusing on differences within the class transforms the Rule 23(a) commonality inquiry into the Rule 23(b)(3) requirement that com- mon issues predominate over individual- ized ones. The dissent articulated this concern as such: “The Court’s emphasis on differences between class members mimics the rule 23(b)(3) inquiry into whether common questions ‘predomi- nate’ over individual issues.”
The significance of Dukes The Majority has likely rewritten Rule
23, by setting a higher “commonality” See Adapting, Page 23 LEMON LAW
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20 — The Advocate Magazine JANUARY 2012
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