Since the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), last year, the lower courts have been sorting out its implications. The case, stated broadly, stands for the proposition that Rule 23(a)(2)’s commonality requirement forecloses class certification in a multi-site or mult-store case, unless the defendant uses a policy common to the sites that is said to violate applicable substantive law.
Earlier this year, in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012), the Seventh Circuit allowed a class to be certified where a national policy (that local brokers could form teams and decide whom to admit to the team and whether to share commissions within the team) facilitated racial discrimination.
Relying on McReynolds, in March Judge Lefkow in Chicago certified two classes in Bolden v. Walsh Construction Co. where there was no company-wide policy other than to allow superintendents to form job-specific crews and decide whom to hire and what to pay them. Today the Seventh Circuit, on a Rule 23(f) appeal, reversed the certification order, holding that the case falls under the Wal-Mart rule and is materially unlike McReynolds. The court also said that Judge Lefkow’s reading of Wal-Mart as a Rule 23(b)(3)(D) manageability case, from which she was able to distinguish this case (Wal-Mart was about thousands of stores and millions of employees, while Bolden is only about hundreds of job sites and thousands of employees) was incorrect. Wal-Mart, the court says, is a commonality case, plain and simple.
While this decision will likely be of more interest to labor lawyers than the rest of us, all of us who deal with class actions need to be aware of the developing case law interpreting Wal-Mart.