Wal-Mart Stores, Inc. v. Dukes (10-277)

argument 10-277

Wal-Mart Stores, Inc. v. Dukes

Supreme Court of the United States 1h 0m 7 speakers 8 chapters transcribed 5 days ago official recording ↗

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Why does the defense argue that the class certification under Rule 23‑A fails?

John G. Roberts 0:00

We'll hear argument first this morning in case ten

Paul D. Clement 0:03

two seven seven, Walmart stores versus Dukes. Mr. Boutros? Mr. Mr Chief Justice, and may it please the court, the mandatory nationwide class in this case was improperly certified for two fundamental reasons. First, plaintiffs fail to satisfy Rule twenty three A's cohesion requirements as reflected in the commonality, typicality and adequacy requirements of the rule. Second, plaintiffs highly individualised claims for monetary relief failed to satisfy Rule twenty three V two's requirements for certification of a mandatory non opt out class. Regarding Rule twenty three A, because the plaintiff's claims in this case hinge on the delegation of discretion to individual managers throughout the country, they cannot meet the cohesion requirements that are reflected in in Rule twenty three A.

Paul D. Clement 0:53

The delegation of discretion in some ways is the opposite of cohesive claims that are common to everyone in the class. The common policies that the plaintiffs point to are either neutral and not argued to be discriminatory, um or they are affirmatively nondiscriminatory. The company has a very strong policy against discrimination and in favour of diversity.

John G. Roberts 1:16

I suppose if uh corporate headquarters had learned that the subjective decision making uh or the delegation of decision making to the field was resulting in uh several discriminatory practices or a pattern of discrimination. In other words, the decentralised process was leading to discrimination, then I suppose the company is the Had that could be attributed to the policy adopted by at headquarters?

Paul D. Clement 1:44

No, Your Honor, I think that in this situation, if if there was a pattern, for example, at a particular store where the decision making No,

John G. Roberts 1:51

I'm talking about so they have thousands of stores and every week they get a report from another store saying, you know, the there is an allegation of uh gender discrimination, at some point can't they conclude that it is their policy of decentralizing decision making that is causing Or permitting that discrimination to take place?

Paul D. Clement 2:09

I think that would be an inquiry, Your Honor. I don't think it would rise to a pattern or practice or a common policy that affects everyone in the same way. Certainly, companies do look at the situation throughout the company and seek to root out discrimination. But it would take more than some reports, especially in a company that has so many stores and so many units. And here, the plaintiff's claims simply aren't typical. If the three named plaintiff plaintiffs stand before the court, they are supposed to represent 500,000 or a million or more people and stand in judgment. That's the words the court used in Hansbury versus Lee to represent all those other people. And the claim is that the individual decision makers in those other cases exercised their discretion in a way that was biased, and there's no proof of that.

Anthony M. Kennedy 2:58

The Chief Justice's question reminds me somewhat of our rule in Monell under nineteen eighty three. A city's not liable for uh nineteen eighty uh of constitutional violation unless it has a policy. Uh would you th think that we could use that as an analogue to determine whether or not there is a common question here.

Paul D. Clement 3:19

Yes, Your Honor. I think the analog is that if a company had a policy, a general policy of discrimination, as opposed to here, where it is a general policy against discrimination, and it was, in the words of the court and FENI, saw patterns throughout the company, and because of sex, because of gender, continued to allow the patterns to exist, that would raise a different question.

Anthony M. Kennedy 3:41

I suppose following the Minnell analogue there's uh it's uh there's a showing of deliberate indifference to the violation. Would that be a policy?

Paul D. Clement 3:51

Your Honor, I think deliberate indifference raises a a different question. Under a disparate treatment claim, again in FENI, the test would be was the company Yeah, allowing the the discrimination to occur because of gender, because it wanted there to be discrimination. There's no evidence of that here.