In the recent and highly publicised Wal-Mart v. Dukes decision, the United States Supreme Court placed a strong limitation upon class action suits. The Court ruled that the class members - all of Wal-Mart's 1.5 million female employees - could not establish a "common injury", which is a prerequisite to class actions in the US. However, it would be wrong to interpret this case as a general attack on class action as a legal procedure. Rather, it is a limitation on the types of evidence that can establish "commonality" for class action certification. The effects of this decision should not be seen as a wholesale barrier to class action procedure being incorporated into jurisdictions such as Ireland.
In Dukes, the Court rejected class certification because the plaintiffs couldn't point to a specific Wal-Mart policy that created a discriminatory impact common to all of the women in the class. The plaintiffs alleged that Wal-Mart engaged in gender discrimination that violated the Civil Rights Act, by giving lower level managers unguided discretion in promotion and pay. This unguided discretion allegedly allowed those low level managers to discriminate against women. The problem the Court had with this argument was that any discriminatory effect caused by a policy of giving managers unguided discretion to managers would vary significantly from manager to manager. Therefore the injury alleged by each of the class members would vary significantly depending on which manager a particular female plaintiff worked under. For this reason, the Court ruled their injuries to be too variable to be an issue of law or fact "common" to the entire class.
The plaintiffs also argued that Wal-Mart had a corporate culture of sex discrimination that lead to a "common" discrimination of all Wal-Mart's female employees. This was based on a sociological study, which stated that Wal-Mart's corporate culture was "vulnerable to gender bias", which in turn led to a discriminatory impact against females who worked for the company. The Court put great focus on challenging the sociological study's evidentiary worth in finding that the class did not share a common issue of law or fact. The Court also noted various Wal-Mart anti-discrimination policies.
Accordingly, the case does not show that the US Supreme Court is developing distaste for class actions per se. Dukes really only limits the ability of plaintiffs to certify a class suit with sociological studies, in the absence of a specific corporate policy that caused a common injury.
This is illustrated by the Supreme Court's flexible approach in other class action certification cases. In Fund v. Halliburton for example, the Supreme Court ruled unanimously in favour of class plaintiffs, holding that class certification did not require the plaintiffs to prove that Halliburton's actions caused the plaintiffs to lose money. Thus the Court will continue to allow large class actions and they will continue to provide a great benefit to America's disadvantaged groups by preventing organizations from creating and enforcing corporate policies that cause discriminatory impact.
This is not to say that Dukes is without effect. This decision will make it far more difficult for disadvantaged groups in America to sue as a class in situations where the discrimination suffered is too subtle to track to a specific corporate policy. Since discrimination can be very subtle in the modern age, this may make some potential discrimination class actions harder to pursue.
From an Irish perspective, this case should serve to alleviate concerns that introducing multiparty litigation to Ireland would lead to out of control litigation. This is because Dukes serves as an example of how even the rather broad and established class action procedures of America can be effectively reined in and controlled through the judicial interpretation of the procedural rules which govern class actions.
But Ireland should also not view Wal-Mart v. Dukes as an attack on the legitimacy of the class action suit procedure in America generally. Dukes simply restricts the type of evidence that can be used to establish a "common" injury among plaintiffs attempting to establish a class. It should therefore be no discouragement to Irish law-makers adopting a class action procedure into this jurisdiction's litigation structures.