In July 2011, the Supreme Court issued its much-anticipated decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In a highly technical decision, the Court held that “one of the most expansive class actions ever,” consisting of 1.5 million female Wal-Mart employees, could not be certified as a class action. All nine justices agreed that the class could not recover back pay under Federal Rule of Civil Procedure 23(b)(2), which applies only to declaratory and injunctive relief. A five-justice majority led by Justice Scalia went a step further and held that the class could not even meet Rule 23(a)’s requirement that there be “questions of law or fact common to the class.” The Wal-Mart decision is regarded by both supporters and detractors as “momentous.” “Supreme Court Tightens Rules in Class Actions,” New York Times, New York ed. June 20, 2011, at A1.
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