Dukes, the corporate savior: how the wal-mart v. dukes decision reinforced the corporate defense arsenal

AutorJordan Rosales
CargoJuris Doctor Candidate, 2016 at St. Thomas University School of Law, Journal of Complex Litigation, Member-Candidate, 2014
Páginas199-217
DUKES
, THE CORPORATE SAVIOR: HOW THE
WAL-MART V. DUKES
DECISION REINFORCED THE CORPORATE DEFENSE ARSENAL
JORDAN ROSALES*
I. Extra, Extra! The Class Action Cold War is Over! ............................................ 199
II. Background .................................................................................................................. 201
A.The Federal Rule for Class Actions ................................................................... 202
B. Problems with the Class Action ......................................................................... 203
1. From the Eyes of Goliath: The Corporate Perspective ......................... 203
2. From The Eyes of David: The Plaintiff’s Perspective ........................... 205
C. Preparing for Battle: The History of
Dukes
.................................................... 206
D. The Battle that Started the War: The Decision of
Dukes
........................... 208
III. Casualties of War: The Effects of
Dukes
............................................................... 211
IV. A Fighting Chance: David v. Goliath, A Fair Fight? .......................................... 215
V. Conclusion ................................................................................................................... 216
I. EXTRA, EXTRA! THE CLASS ACTION COLD WAR IS OVER!
!
Imagine that you own Radio House, a chain of electronics retail stores,
throughout the Southern United States. You have approximately 1,500 stores
spread across this region, each employing roughly 200 employees. Business is
going good and you have thwarted competitors in every market that has been
entered. Stephanie, an African-American cashier in Gainesville, Florida, has been
working for Radio House for the last four years, while she studies at a nearby
university. She hopes to graduate and continue working for Radio House in a
management role. Upon graduation, Stephanie tells the general manager, Tim,
that she would like to apply for a management position. Tim, however, tells
Stephanie that she “couldn’t handle” being a manager and that she “knows
nothing about business.Instead, Tim gives the job to Albert, a white male and
recent high school graduate, despite Stephanie being overly qualified for the
management position. Stephanie, outraged by the general manager’s treatment,
files a lawsuit against Tim and Radio House alleging discrimination.
Alone, Stephanie has very limited resources to pursue a lawsuit against Radio
House Corporation, which has unlimited resources and a very well equipped
legal department. In this case, Stephanie —and her attorneys— really “can’t
handle” the full onslaught of a corporate legal defense. Litigating alone will only
drain her bank account and likely secure a victory for your company. However, if
Stephanie rallied the troops together against her common enemy, the possibility
of victory becomes much more probable.
* Jordan Rosa les, Juris Doct or Candidate, 20 16 at St. Thomas University Sch ool of Law,
Journal of
Complex Liti gation
, Member-Candidate, 2 014.
200
University of Puerto Rico Business Law Journal Vol. 7
In the coming weeks, wind of Stephanie’s lawsuit picks up throughout
Radio House branches and several other African-American men and women
allege the same discriminatory behavior at the hands of their managers. Together,
they form a formidable foe capable of causing millions of dollars’ worth of damage
to your corporation. Stephanie, along with 4,000 other similarly situated
members, file for certification of their class in the Federal District Court for the
Northern District of Florida, which grants class certification. Upon certification,
a corporation is likely to settle the dispute and cut their losses rather than
litigate, despite the merits of the case.
Stephanie, along with the other class members, seeks to bring Radio
House to justice for their discriminatory behavior by means of the class action.
Nonetheless, this long-feared plaintiff weapon has become nothing more than a
dull blade in the wake of
Wal-Mart Stores, Inc. v. Dukes
,1 which narrowly
defined the commonality requirement for class actions. This decision made it
increasingly difficult for a class, such as Stephanie’s, to become certified. Once
upon a time, a situation such as this one, would have stricken any corporation
with fear of bankruptcy and a diminished reputation due to the nature of the
action. However, nowadays corporations can operate in an easiest way because
they will continue to go unchecked. Therefore individuals, such as Stephanie, will
likely receive no relief within a justice system that has turned its back on them
and reinforced the corporate defense arsenal, not by giving it a weapon, but by
taking their enemy’s only weapon.
Dukes
ended the arduous cold war between
plaintiffs and corporations. The days of corporate class action settlements are
over and a new day has come where corporations thrive at the cost of the weak
individual.
In the aftermath of the
Dukes
decision, corporations that once feared the
class action, are treading in new waters and benefiting from a decision that
severely diminished the plaintiff’s class action. This comment proposes an
alternative approach for the commonality requirement under Rule 23(a) that
would reduce the heightened level of scrutiny placed upon the commonality
requirement by the Court in
Dukes
, whilst still ensuring that the Court’s
rationale be implemented, to avoid mass litigation where there is no true common
element in the class. This comment also proposes that the Supreme Court adopt
an alternative approach, which would be a happy medium between the rigorous
new interpretation adopted by the
Dukes
Court and the lax tests under the Rule
prior to the decision.
Part II of this comment considers the history and background of the class
action, including issues that have arisen throughout the ages from the
perspectives of both: the corporations and the plaintiffs, who seek to use this
weapon as a means for compensation or justice. Additionally, Part II considers
the history of
Dukes
decision and its prominence, as one of the most influential
decisions in the history of the class action. Part III considers how the
Dukes
decision altered the landscape of complex litigation, and the inadvertent effect it
has had on corporations and plaintiffs. Part IV provides conclusive thoughts and
arguments regarding
Dukes
decision and provides an alternative solution to the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
1 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011).

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