After the Supreme Court decided Wal-Mart Stores, Inc. v. Dukes, it was fashionable for some in the plaintiffs' bar to argue that the deciding factor was the size of the class. After all, it's not often that a class of 1.5 million people comes along. Such a sprawling class, as it is often described, would almost by definition be unmanageable.
But most lawyers understand that the Wal-Mart decision turned not on class size but on the plaintiffs' theory of discrimination. Typically, plaintiffs seek class certification by relying on a common policy that affects all class members in the same manner. The Dukes plaintiffs, however, sought certification of their claims of gender-based employment discrimination by arguing that Wal-Mart's uniform corporate policy of granting discrtion to local store managers to make pay and promotion decisions, coupled with an alleged culture of bias at the company, led to disparate treatment for female employees. They attempted to support their argument by statistical analyses showing disparities between the treatment of men and women in the workplace.
As every class action lawyer knows, the Court rejected plaintiffs' theory, holding that a corporate policy that promotes non-uniform practices throughout the organization represents the opposite of a uniform employment practice that would support a finding of Rule 23(a)(2) commonality. The surprise in the case was the Court's pronouncement of a commonality standard applicable to 23(a)(2) that so closely resembled the predominance standard of 23(b)(3). It was a higher standard for (a)(2) than any previously known, occasioned by the fact that, because plaintiffs' brought their case under Rule 23(b)(2) rather than (b)(3), predominance was not at issue, and commonality had to be confronted on its own terms.