A lot has already been written about the Wal-Mart Stores, Inc. v. Dukes opinion decided this week, but there’s one little ditty that class action practitioners will want to take note of.
As part of their motion for class certification, the Plaintiffs used an expert who conducted a social framework analysis of the culture and personnel practices at the company and who concluded that the company was vulnerable to gender discrimination. The Supreme Court’s majority opinion refers to the expert’s testimony as the only evidence of a general policy of discrimination. The Court then notes that the parties dispute whether the expert’s testimony met the standards for admission under Federal Rule of Civil Procedure 702 and Daubert and recites that the district court had concluded that Daubert does not apply to expert testimony at the certification stage of class action proceedings. Here, the Supreme Court says, "We doubt that is so…" The Court then goes on to conclude that the expert’s testimony did not reach the level of showing a general policy of discrimination. The lesson to take from this is that, even though the statement is arguably dicta, it’s a pretty good indicator of the Supreme Court’s feelings that Daubert’s standards apply to experts at the class certification stage.
Of course the headline-grabbing holding from the high court is that the Plaintiffs presented no convincing proof of a company-wide discriminatory pay and promotion policy such that there was no common question for purposes of class certification. The Court’s opinion may be found here.