Complex Litigation: To (B)(2) or Not to (B)(2)?

Vol. 26 Nat'l L.J. 12 (July 26, 2004)

U of Texas Law, Public Law Research Paper No. 440

5 Pages Posted: 14 Jun 2013

Date Written: July 2004


This paper is a commentary and analysis of the district court class certification in Dukes v. Wal-Mart Stores, Inc., (N.D. Cal. 2004). The class consists of approximately 1.5 million women employees at 3,400 Wal-Mart stores during the past five years, and is pursued as a Title VII employment discrimination class. The court’s class certification decision focused on the plaintiffs’ allegations of a corporate culture of gender stereotyping that fostered workplace discrimination. The district court certified a Rule 23(b)(2) injunctive relief and punitive damage class, with notice and opt-out rights. The class certification raised issues of the appropriateness of certifying a Rule (b)(2) class certification, and whether class claimants can recover damages in such a class. The article discusses conflicting circuit court decisions concerning certification of Rule 23(b)(2) classes, including the Fifth Circuit’s decision in Allison v. Citgo, 151 F.3d 402 (1998), repudiating the ability of a class to recover damages in a Title VII Rule 23(b)(2) action. On the other hand, other circuits including the Second, Seventh, and Ninth Circuits, have repudiated the Fifth Circuit’s approach in Allison. The Dukes class certification, following Ninth Circuit precedent in Molski v. Gleich, heightens this confusion concerning the appropriate use of the Rule 23(b)(2) class category.

Keywords: Dukes v. Wal-Mart Stores, Inc., class action litigation, Rule 23(b)(2), Rule 23(b)(3), Allison v. Citgo, Molski v. Gleich, punitive damage class

Suggested Citation

Mullenix, Linda S., Complex Litigation: To (B)(2) or Not to (B)(2)? (July 2004). Vol. 26 Nat'l L.J. 12 (July 26, 2004); U of Texas Law, Public Law Research Paper No. 440. Available at SSRN:

Linda S. Mullenix (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-1375 (Phone)

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