The U.S. Supreme Court’s June 2011 decision in Wal-Mart Stores Inc. v. Dukes,1 a gender discrimination action seeking certification of a nationwide class of all female Wal-Mart employees, has been heralded by a number of employment defense lawyers as a major blow against employment class actions under Federal Rules of Civil Procedure 23(a) and 23(b)(2). While employee rights attorneys have been quick to point out limitations to Justice Antonin Scalia’s opinion, few dispute that the decision clarifies a plaintiff’s burdens in certifying a class. Many employment lawyers agree that, on balance, Dukes is helpful to the defense of employment class actions under the applicable provisions of Rule 23.
Fewer commentators, however, have explored the impact of Dukes on multidistrict employment litigation against employers and the strategic implications of such litigation. Through multidistrict employment litigation, parties with overlapping individual and class-based claims grounded on one or more common facts centralize actions from multiple federal court jurisdictions under the auspices of a single district court judge for pre-trial purposes. Pursuing multidistrict litigation of overlapping employment actions filed in district courts throughout the country can transform litigation by rendering discovery more manageable and dispositive rulings more consistent. Despite such potential benefits, the decision to do so should be undertaken only after a searching review of the strategic considerations.