Attorney talks controversial Wal-Mart class action

John O'Brien Oct. 27, 2010, 8:53am


WASHINGTON (Legal Newsline) - The attorney representing Wal-Mart in a class action lawsuit that alleges discrimination against women on Wednesday called the suit "extremely adventuresome."

Theodore Boutrous said the case, currently being appealed to the U.S. Supreme Court, should never have received class certification under rule 23b(2). That rule, he said, was drafted to certify classes seeking injunctive relief.

The plaintiffs in Dukes v. Wal-Mart Stores, Inc., is seeking backpay, claiming they were never promoted because of their gender.

Bourous said rule 23b(2) was used for segregation cases -- "You don't need a class to get the relief for everyone," he said.

He said federal rules of civil procedure rule 23b(3) allows class certification in more "adventuresome" claims. He then called the Dukes case "extremely adventuresome."

The U.S. Supreme Court has not decided if it will accept Wal-Mart's appeal. The U.S. Court of Appeals for the Ninth Circuit granted class certification in April with a 6-5 vote.

The plaintiffs argue it is established that the backpay remedy is consistent with 23b(2). They also argue that they are not asking for compensatory damages and the "case does not currently present the issue of whether punitive damages were properly certified under Rule 23b(2)."

Several groups, including the U.S. Chamber of Commerce, have filed amicus briefs with the Supreme Court urging it to hear the case. The U.S. Chamber Institute for Legal Reform owns Legal Newsline.

Boutrous was speaking at the ILR's Legal Reform Summit Wednesday.

The plaintiffs filed their brief in opposition Thursday. Boutrous said he will file his reply brief Friday.

From Legal Newsline: Reach John O'Brien by e-mail at

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