BREAKING NEWS: U.S. Supreme Court grants cert. but limits the issues in Dukes v. Wal-Mart

Today, the U.S. Supreme Court granted the cert. petition in Wal-Mart Stores, Inc. v. Dukes, no. 10-277, but limited the issues.  The Order reads:

10-277   WAL-MART STORES, INC. V. DUKES, BETTY, ET AL.

The petition for a writ of certiorari is granted limited to Question I presented by the petition. In addition to Question I, the parties are directed to brief and argue the following question: "Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."

These are the two questions presented as stated in Wal-Mart's cert. petition: 

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)—which by its terms is limited to injunctive or corresponding declaratory relief—and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

In other words, the Supreme Court will be taking a narrow look at Dukes and keeping its focus on class certification under Rule 23(b)(2), rather than on the broad constitutional and other challenges Wal-Mart brought against the class certification process more generally. 

Comments

[rb]

Suspect I know the answer of the majority:

1. Plaintiffs did not make out a sufficiently common, typical, ascertainable class to warrant certification in the first place.

2. There is no right to restitution under a (b)(2) certification.

If I had to bet, I would bet the first is going to be the focus of the majority and its results far worse than the second. Assume a broad based opinion that will make class certification much more difficult, particularly in discrimination cases.