The justices directed the parties in Wal-Mart Stores v. Dukes to brief and argue two questions involving the certification of a class of about 1.5 million past and present female employees. And in American Electric Power Co. v. Connecticut, the justices will decide whether states and private parties are able to use the law of nuisance to sue five electric utilities for injunctive relief to cap their carbon dioxide emissions.
In the now nine-year-old Wal-Mart suit, six women, serving as class representatives, accuse the nation’s largest private employer of discriminating against female workers in pay and promotions.
The merits of the case, however, are not before the justices. Instead, the Court will focus on whether the class was properly certified.
“We welcome the Supreme Court’s limited review of the class certification decision in this case. As that decision was based on a vast body of evidence, we are confident that the decision to certify the class was sound,” said the plaintiffs’ lead co-counsel Joseph Sellers, partner in Washington’s Cohen Milstein Sellers & Toll, in a statement. “We believe the Court will reach the same decision after reviewing the record before the U.S. District Court for the Northern District of California, where class certification was granted in June 2004.”
Wal-Mart has lost the class action issue four times in lower court rulings, noted Sellers.
Wal-Mart, represented by a team of lawyers from Gibson, Dunn & Crutcher, led by partner Theodore Boutrous, contends that the class was improperly certified, both as to its size and type. It argues that the plaintiffs, who are seeking back pay, were certified under Federal Rule of Civil Procedure 23(b)(2), used for classes seeking injunctive relief and, instead, should have been required to meet the tougher standards for classes seeking damages.
In the grant of review Monday, the justices ask the parties to address whether claims for money damages can be certified under 23(b)(2) as well as whether certification under that rule was consistent with the certification requirements of Rule 23(a).
In the global warming case, the justices rejected the recommendation of the solicitor general that they vacate a decision by the U.S. Court of Appeals for the 2d Circuit and remand the case to that court to consider two questions: whether, independent of constitutional standing, the suit should be barred as a matter of “prudential” standing, and whether recent actions by the Environmental Protection Agency on greenhouse-gas regulations displace the claims in the lawsuit.
The utilities are represented by Peter Keisler of Sidley Austin. New York Solicitor General Barbara Underwood is counsel of record for the state attorneys general. Justice Sonia Sotomayor, who sat as a 2d Circuit panel judge in the global warming case, will not participate in the Court’s deliberations.