Dukes v. Wal-Mart and Statistical Proof in Class Certification Proceedings

By Stephen J. Newman
December 08, 2009
It has now been more than seven months since Dukes v. Wal-Mart was argued en banc in the Ninth Circuit, five years since the district court entered its class certification order, and eight years since the underlying litigation was filed. At issue in the appeal is whether the district court properly certified the largest employment class action in history, by approximately 1.5 million female workers at Wal-Mart stores nationwide. The Ninth Circuit issued two opinions at the panel level before the case was ordered for a hearing en banc. (The setting of an en banc hearing vacates prior appellate rulings.) That no opinion has yet issued suggests continuing debate within the appellate court. It remains to be seen what path the Ninth Circuit ultimately will take, and if the path will end there or continue to the U.S. Supreme Court...