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Rule 23, class action, plausibility, commonality, employment discrimination, gender discrimination


In 2001, a class action suit was brought against Wal-Mart, where plaintiffs sought to certify a class of every woman who did work for the giant retailer or had worked for it since 1998, seeking relief related to promotion and pay policies. Plaintiffs alleged that they were all discriminated against on the basis of sex. The Supreme Court agreed with Wal-Mart, finding that the class did not meet requirements for class actions set by Rule 23. This article explores the reasoning behind the Supreme Court’s split decision that the class did not meet the commonality standard, which relied significantly on the Court’s modification of pleading standards in Twombly and Iqbal.

Twombly and Iqbal established a new standard for pleading. Based on the logic of those cases, the justices relied in Dukes on their own belief that discrimination was implausible, rather than believing expert testimony that relied on social science data. This article explores the implications of this case for the future, especially the future of employment discrimination cases and other cases that involve complex questions of causation?