Dukes et al v. Wal-Mart Stores, Inc.

Filing 978

ORDER Requiring Preparation for Hearing. Signed by Judge Charles R. Breyer on 06/28/2013. (crblc3S, COURT STAFF) (Filed on 6/28/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 01-2252 CRB

DUKES, ET AL.,

ORDER REQUIRING PREPARATION
FOR HEARING

Plaintiffs,
v.
WAL-MART STORES, INC.,

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Defendant.

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The Court ORDERS the parties to be prepared to respond orally to the questions set

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forth below at today’s hearing.

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Questions for the Plaintiffs

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(1)

disparate impact theory?

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(2)

What is the significance to your disparate impact theory of your evidence of WalMart’s culture and shared stereotypical views of women?

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What, exactly, is the “common mode of exercising discretion” underlying your

(3)

Your reply brief appears to disclaim reliance on your anecdotes and culture/stereotype

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evidence as support for your disparate impact theory. What then, exactly, are you

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relying on?

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(4)

What is special about the three regions in the proposed class, as opposed to some
other three, or four, or five regions? Did Wal-Mart internally group these regions

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together in any special way? What evidence indicates that the way pay and promotion

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decisions were made in these regions was different than in other regions?

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(5)

The Supreme Court already reviewed evidence of Wal-Mart’s management structure

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and concluded that “[p]ay and promotion decisions at Wal-Mart are generally

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committed to local managers’ broad discretion” with “limited corporate oversight.”

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131 S. Ct. at 2547. What new evidence establishes that that upper-level regional

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management was actively and regularly involved—not just that they had formal

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authority to intervene, but that they were actually involved—in the individual

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promotion and pay decisions made by District and Store Managers?

United States District Court
For the Northern District of California

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(6)

Assuming Regional Vice Presidents and Personnel Managers effectively controlled

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the exercise of local managers’ discretion, how many different individuals held those

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positions during the class period? And for how many of those individuals do you

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offer evidence of bias or stereotypical thinking? Assuming that the Court concludes

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that Store and District managers actually made the contested decisions, how many of

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those individuals were there? For how many of them do you offer evidence of bias or

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stereotypical thinking?

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(7)

Does your expert purport to identify any statistically significant disparity in promotion

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at the store level? Is Wal-Mart correct that about three quarters of the stores showed

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no statistically significant disparity in pay at the store level? If so, please comment on

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the Supreme Court’s opinion on this subject. See Dukes, 131 S. Ct. at 2555

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(“[I]nformation about disparities at the regional . . . level does not establish the

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existence of disparities at individual stores . . . . A regional pay disparity, for

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example, may be attributable to only a small set of Wal-Mart stores, and cannot by

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itself establish the uniform, store-by-store disparity upon which the plaintiffs’ theory

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of commonality depends.”) (emphasis added).

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(8)

You identify five “specific employment practices.” Which one of those was not

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previously described—even if not labeled the same way—in your Supreme Court

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briefing and in Justice Ginsburg’s dissent?
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(9)

The Supreme Court’s opinion said managers’ discretion was “broad,” not

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“unfettered.” Does that imply that the Court understood that Wal-Mart provided some

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general criteria for managers to consider in exercising their discretion?

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(10)

Was relocation a requirement for all of the promotion decisions you are challenging?

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Is there some evidence that some managers did post job openings, even before January

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2002?

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Questions for Wal-Mart

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(1)

Are you aware of any binding precedent on point?

United States District Court
For the Northern District of California

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Can a pattern of statistically insignificant disparities be evidence of disparate impact?

(2)

You fault Plaintiffs for not establishing that any of their proposed “specific

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employment practices” caused the alleged disparities. What would that evidence look

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like?

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(3)

Are you arguing that a shoulder-tap selection process is not a “specific employment

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practice” under the Supreme Court’s opinion in Dukes, or just that the evidence does

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not support the existence of such a practice in this case across all class members

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throughout the class period?

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(4)

which concluded that Rule 23(b)(3) could be addressed through issue certification?

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How do you distinguish McReynolds v. Merrill Lynch, 672 F.3d 482 (7th Cir. 2012),

(5)

Describe a Title VII class action that would satisfy Rule 23(b)(3) under the law as you
have argued it.

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IT IS SO ORDERED.

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Dated: June 28, 2013

CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

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