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The Supreme Court’s blockbuster decision Monday in Wal-Mart v. Dukes, tossing out the biggest discrimination class action in history, is already having an impact on the Supreme Court’s docket — and in one instance, it is affecting a case that does not seem related, at first blush. After issuing the Wal-Mart decision, the Court on Monday “re-listed” two long-pending petitions for certiorari, adding the cases to this Thursday’s private conference at which the justices consider whether to grant or deny review. That often occurs when the Court holds pending petitions until a decision in a related case is announced, on the theory that the related decision might make the case more or less worthy of review. The first is Philip Morris v. Jackson, filed by the tobacco company last December to challenge a $270 million class-action judgment in Louisiana state court to pay for smoking cessation programs. Philip Morris claimed the state class action violated its due process rights. The case was scheduled for two conferences in March, but then dropped out of sight, apparently to wait to see what impact the Wal-Mart decision might have. Today, Philip Morris filed a supplemental brief arguing that the Wal-Mart decision Monday makes its case all the more worthy of review — in part because the Wal-Mart ruling’s restrictions on federal class actions will give plaintiffs more incentive to “push the limits” in state courts. The brief was filed by Alan Untereiner of Robbins, Russell, Englert, Orseck, Untereiner & Sauber with Miguel Estrada of Gibson, Dunn & Crutcher, Paul Clement of the Bancroft firm, and Phillip Wittmann of Stone Pigman Walther Wittmann of New Orleans also on the brief, among others. Robert Peck of the Center for Constitutional Litigation, representing the plaintiffs in the Louisiana case, filed a reply today urging the Court not to grant review to the Philip Morris petition, adding that “further delay in implementing a program found necessary to save thousands of lives from the ravages of smoking addiction is unwarranted.” The other case the Court re-listed today may not at first seem related to Wal-Mart: Beer v. United States. That is a challenge, filed by seven current and former federal judges, to enactments by Congress that denied cost-of-living increases in judicial pay. They claim these actions violate the constitutional bar against reducing the compensation of judges, viewed as an important safeguard of the independence of the judiciary. The petition was listed, but never acted on, for eight conferences late last year before Wal-Mart was granted review, and no further action was taken until Monday, when it popped up on the agenda for June 23. How does judicial pay relate to Wal-Mart, a decision about certifying a class in federal class actions? Well, in Williams v. United States, a lawsuit that was a precursor to Beer, judges seeking back pay were certified as a class under Federal Rule of Civil Procedure 23(b)(2) — the same rule at issue in Wal-Mart. Christopher Landau of Kirkland & Ellis, who filed the Beer petition, declined comment on how Wal-Mart might affect the case. Tony Mauro can be contacted at [email protected] .

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