Antitrust Lawyer Blog Commentary on Current Developments

SUPREME COURT AGREES TO HEAR WAL-MART CLASS ACTION APPEAL

On December 6, 2010, the Supreme Court agreed to hear a class action appeal in the Wal-Mart Stores employment discrimination case, one claiming that the company discriminated against a huge number of current and former Wal-Mart women employees in both pay and promotion. This is the biggest employment discrimination case in U.S. history and seeks billions of dollars in back pay and promotions resulting from Wal-Mart's ongoing discrimination against these women.
The Supreme Court agreed to hear Wal-Mart's bid to overturn the United States Court of Appeals for the Ninth Circuit's decision to uphold certification of a class of potentially more than 1.5 million women. The question before the court is whether individual claims by one and half million women employees can be combined into a single class action over alleged discrimination. This Supreme Court decision will affect all sorts of class action lawsuits in securities, product liability and antitrust cases. This case needs to be watched closely by the antitrust bar.

According to Wal-Mart, the company's policies expressly bar discrimination and promote diversity and the plaintiffs that worked in approximately 3400 separately managed stores throughout the United States, in over 170 job classifications, cannot possibly have enough in common to make class action treatment appropriate. Wal-Mart furthered argued that each employee who thinks she may have been discriminated against should file a separate and distinct lawsuit in which the unique details of each and every case would be analyzed.

There are six named plaintiffs in the case. They contend that Wal-Mart was aware that it lagged behind other employers in terms of opportunities for women and that Wal-Mart imposed uniform rules and tight controls over its stores.

In April 2010, an 11-member panel of the Ninth Circuit decided in a 6-5 vote that the Wal-Mart class action should go forward. In writing for the majority, Judge Michael Daly Hawkins said that the six women who represent the class, four of whom had left Wal-Mart, had claims typical of all other plaintiffs. Wal-Mart's policies and treatment of women were similar enough to bring a single lawsuit.

There may be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. However, Wal-Mart argued the members of the approved class held a multitude of jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in approximately 3,400 stores, across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member's job, location and period of employment.

Interestingly, in their respective briefs in the case, Dukes v. Wal-Mart Stores, No. 10-277, the two sides cited the work of the Court's newest justices to the Court. Wal-Mart twice relied on an influential unsigned law review note that Justice Elena Kagan wrote as a student at Harvard Law School on class certification in employment discrimination suits. See Certifying Classes and Subclasses in Title VII Suits, 99 Harv. L. Rev. 619 (1986) The plaintiffs, on the other hand, responded in their brief by noting that Justice Sonia Sotomayor voted to certify an even larger class action in an antitrust case involving eight million merchants when she was a judge on the United States Court of Appeals for the Second Circuit, in New York. Wal-Mart was a plaintiff in that class action. See In reVisaCheck/MasterMoney Antitrust Litig., 280 F. 3rd 124 (2nd Cir. 2001)

The Supreme Court is likely to hear arguments this Spring, with a decision expected in the Summer.


Robert W. Doyle Jr.

(202) 589-1834
rdoyle@dbmlawgroup.com