Friday, August 9, 2013

Whatever Happened to that Wal-Mart Class Action? - COTW #155

About two years ago, the Supreme Court issued its opinion in Wal-Mart v. Dukes, a class action discrimination case on behalf of about 1.5 million female employees. The Court held that the class could not properly be certified because the claims lacked commonality:
The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.
Whatever happened to the class action? Well, they scaled it down to about 150,000 members and tried again. Unfortunately for them, and contrary to popular belief, the problem was never the size of the class. In a recent ruling from the Northern District of California:
Two themes emerge in the analysis that follows. First, though they have cut down the raw number of proposed class members significantly, Plaintiffs continue to challenge four different kinds of decisions across hundreds of decision makers, inviting failures of proof at multiple points in each region. Second, though Plaintiffs insist that they have presented an entirely different case from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the same case with new labels on old arguments.
The Court therefore denied the motion for class certification. We'll see whether they go back to the drawing board or appeal the ruling.

One note of interest: the judge in this case is Justice Breyer's brother, Judge Charles Breyer. If this case comes back to the Supreme Court, this could lead to recusal of a likely plaintiff-side vote.

HT: SCOTUSBlog - Wal-Mart Bias Challenge Fails Again.