Third Circuit on the Federal Arbitration Act and Uber drivers

Do you love the arcane scope language of the Federal Arbitration Act (FAA)? Do you also love the convoluted mess of employee-independent contractor classification analysis? Who doesn't!? The Third Circuit just issued a precedential opinion in Singh v. Uber Technologies, Inc.

The plaintiff brought this putative class action on behalf of himself and other similarly situated Uber drivers in New Jersey. He claimed that Uber misclassified them as independent contractors, and that Uber owes them money for overtime and business expenses that they would be entitled to if they had been properly classified as employees. Classification of Uber drivers (and "gig" workers generally) is a hot topic these days.

But wait . . . before we get to that hot topic . . . the plaintiff driver had an arbitration agreement. So, Uber moved to compel arbitration. But double wait . . . the FAA excludes transportation workers that are engaged in interstate commerce. So, can Uber compel arbitration or not?

Standard of Review

Not official use. 

The first interesting issue in this case is the standard of review on a motion to compel arbitration. The Supreme Court recently held in New Prime Inc. v. Oliveira that the Court decides whether the FAA exemption applies (also relevant to this case, SCOTUS held that the exemption applies to both employees and independent contractors). But what standard of review applies? The Court has some options, including the motion to dismiss
standard (a low bar) and the summary judgment standard (a relatively high bar). Orrr, how about a hybrid?

[T]he motion to dismiss standard applies if the complaint and incorporated documents provide a sufficient factual basis for deciding the issue. But where those documents do not, or the plaintiff responds to the motion with additional facts that place the issue in dispute, the parties should be entitled to discovery on the question of arbitrability before a court entertains further briefing with an application of the summary judgment standard to follow.

(internal citations and quotations omitted).

Does the FAA exemption apply to Uber drivers? 

Here, the Third Circuit identified two issues regarding the coverage of the FAA:

(1) if § 1 [the exemption] only applies to transportation workers who transport goods, or also those who transport passengers, and  

(2) whether Singh belongs to a class of workers that are engaged in interstate commerce.

Cutting to the chase - the Third Circuit held that the FAA exemption applies to transportation workers regardless of whether they are transporting goods or people. Therefore, it would apply to Uber drivers "engaged in interstate commerce."

The Court's analysis stops there. The Court remanded the case back to the district court to allow the parties to engage in discovery to explore the issue of whether the driver was engaged in interstate commerce. 

SCOTUS: No class action arbitration from ambiguous agreement

Sorry, I was out yesterday so I'm a day late to this party. On Wednesday, the Supreme Court released its opinion in Lamp Plus, Inc. v. Varela. A hacker stole employee data from Lamp Plus, which was used to file fraudulent tax returns. An employee, Varela, filed a putative class action in federal court.

One problem - the employee had an arbitration agreement. So, the court compelled arbitration. Here's the twist though - the court compelled class arbitration. The courts concluded that the arbitration agreements were ambiguous as to whether the parties consented to class arbitration. Under California law (comparable to most states' contract law I imagine), ambiguous contracts are interpreted against the drafter. So, the lower courts reasoned, Lamp Plus as the drafter could be compelled into class arbitration based on the ambiguous contracts.

The Supreme Court disagreed. "Courts may not infer from an ambiguous agreement that parties have consented to arbitrate on a classwide basis." Frankly, I'm not sure what this means procedurally. I think the district court will now reconsider the motion to compel arbitration on remand, and presumably conclude that the parties must arbitrate Varela's individual claim.

There are reasons an employer may or may not want to consent to class arbitration. This is just another topic that can be addressed in the language of the arbitration agreement itself though.

James Damore's (aka Google Memo Guy's) NLRB charge withdrawn

An interesting update on James Damore aka Google Memo Guy, who I wrote about previously. As I stated in that post, I thought he had a viable protected concerted activity claim, but that "Google may have a decent defense if it can point to sufficiently inappropriate content in the memo."

The NLRB recently released a January 16, 2018 Advice Memorandum. The tldr version: 

Used in commentary. Not licensed use.

[W]hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

Thus, the Associate GC's advice was for the region to dismiss the charge.

The case page includes a docket entry from January 23, 2018 (just one week after the advice memo), "Letter Approving Withdrawal Request." Does this mean Damore gives up? His new class action lawsuit tells me, probably not.

SCOTUS will not review 9-figure wage and hour judgment against Wal-Mart

I've covered this case before... it has been working its way through the Pennsylvania court system for a while. A bunch (like 187,000) of Wal-Mart employees filed a class action lawsuit under the Pennsylvania Wage Payment and Collection Law claiming that they were not paid for missed breaks and time spent working during their breaks.

Corporate logo used in discussion of
Wal-Mart. Not official use.

• The end result at the trial court was a $187 million judgment against Wal-Mart. The plaintiffs extrapolated their damages across the entire class based on data for only some of the employees. 
• The Superior Court largely upheld that judgment (with a little trimming for a mathematical error and some reduction of attorney's fees). 
• On appeal, the Pennsylvania Supreme Court affirmed. I wrote a case summary for the PBA Civil Litigation Section Update: Pennsylvania Supreme Court Affirms Extrapolation of Damages Evidence in Wage and Hour Class Action. 
• Wal-Mart sought U.S. Supreme Court review. Today, the Supreme Court denied that request (order here). 

In Wal-Mart v. Dukes (2011), the U.S. Supreme Court reversed the certification of a class of over one million Wal-Mart employees in a discrimination case absent an employment practice generally applicable to all of them. The Court noted that a "Trial by Formula" was insufficient. 

Fast-forward to 2016, in Tyson Foods, Inc. v. Bouaphakeo, and the Supreme Court seems just fine with using a "trial by formula" to assess damages in a wage and hour collective/class action. The plaintiffs used a sample of a few dozen employees, to extrapolate overtime worked for thousands of employees. No problem!

Given Tyson Foods, it should come as no surprise that the Supreme Court denied cert. in the Pennsylvania Wal-Mart case. They have apparently lost interest in protecting employers from "trial by formula" - at least in the context of  calculating damages in wage and hour cases. 

SCOTUS: Statistical analysis of donning and doffing was good enough

Yesterday, the Supreme Court issued its opinion in Tyson Foods, Inc. v. Bouaphakeo. In this case, the employees brought a FLSA collective action (and a Rule 23 class action under similar state wage laws) against their employer. They claim the employer owes them overtime pay for time spent "donning and doffing" protective gear (normal people would say "putting on and taking off" protective gear).

How much overtime did each employee spend donning and doffing? We don't know. Instead, the employees used a statistical analysis to approximate the average time. Per Justice Thomas's dissent, the study "used about 57 employees per activity to extrapolate times for 3,344." The times varied greatly for individual employees. For example, one employee took 35 seconds to put on his gear before his shift, while another took 10 minutes.

A jury relied on the statistical evidence to return a $2.9 million verdict. However, it's tough (impossible?) to tell exactly how the jury came up with that number. The employer argued that people who were not actually injured (i.e. people whose donning and doffing time did not result in working overtime) are not allowed to recover any damages.

Let me paraphrase the holdings:

Employer: The statistical evidence varied greatly from individual to individual and was extrapolated from data for only 1.7% of the employees.
SCOTUS: Meh, close enough. We conclude the statistical analysis "was a permissible means of showing individual hours worked."

Employer: But some of these people didn't work *any* overtime, so they're not allowed to recover! And we don't know which people actually worked OT because... well, see above.
SCOTUS: Yeah, that sounds like a problem for the district court to try to figure out. Good luck with that!

Chief Justice Roberts wrote a concurring opinion, noting his "concern that the District Court may not be able to fashion a method for awarding damages only to those class members who suffered an actual injury."

What is the takeaway for employers? From Justice Thomas's dissent:

The majority thus puts employers to an untenable choice. They must either track any time that might be the subject of an innovative lawsuit, or they must defend class actions against representative evidence that unfairly homogenizes an individual issue.

Yeah, employers pretty much have to track any time that could conceivably be compensable... or accept that they might get hammered with statistical analysis from a plaintiff's expert. Sorry if I sound cynical... let's just say I'm skeptical of whether the statistical report really gives us a fair picture of how much time was actually spent by the 3,344 employees.

SCOTUS Returns to Unanswered Question from Symczyk

Remember the FLSA "pick-off" case? In Genesis Healthcare v. Symczyk, the Court held that if an FLSA collective action becomes moot as to the only plaintiff (before additional plaintiffs were added), then the entire claim becomes moot (and the case is dismissed).

The Supreme Court assumed, without deciding, that "an unaccepted Rule 68 offer that fully satisfies a plaintiff’s individual claim is sufficient to render that claim moot." Well, now the Court returns to the unanswered question.

On Monday, the Court granted certiorari in Campbell-Edward Co. v. Gomez (SCOTUSblog page here). The case presents Rule 23 class action claims under the Telephone Consumer Protection Act - what's that got to do with Symczyk? I'm glad you asked! One of the questions presented is:

Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim.

Justice Kagan and the "liberal bloc" appear to have tipped their hand in the Symczyk dissent (case is not mooted by an unaccepted offer of full relief). We'll see how this thing plays out next SCOTUS season.

Sidenote: This case shows why Justice Kagan was wrong that the Symczyk decision was a "one-off" with no real world application. If SCOTUS now holds that the offer does moot the case, we would otherwise be uncertain whether that mooted the entire FLSA collective action (because Campbell-Edward is a Rule 23 TCPA case). Symczyk tells us that the entire case would be moot (and dismissed) under the FLSA's collective action rules. Of course, she was already wrong because there could be any number of other reasons a lead plaintiff's case could become moot... but I digress.

PA Supreme Court Affirms Nine-Figure Judgment Against Wal-Mart

On Monday, the Pennsylvania Supreme Court issued its long-awaited opinion in Braun v. Wal-Mart. A jury trial ended with a $188 million verdict in favor of a class of 188,000 Wal-Mart employees.

[The employees] asserted that Wal-Mart had promised them paid rest and meal breaks, but then had forced them, in whole or in part, to miss breaks or work through breaks, and also to work “off-the-clock,” i.e., to work without pay, after a scheduled shift had concluded.

On appeal, Wal-Mart argued that "the class action proceedings in this case improperly subjected [Wal-Mart] to a 'trial by formula.'"

Frankly, the legal analysis was pretty vague and pretty brief for a case of this complexity and magnitude. The Court did explain:

In this case, where systemic wage-and-hour violations were asserted, evidence was presented by appellees that, if believed, supported an inference that Wal-Mart managers company-wide were pressured to increase profits and decrease payroll by understaffing stores through the preferred scheduling system, and that these factors, including the managers’ annual bonus compensation program, impeded the ability of employees, across the board, to take scheduled, promised, paid rest breaks.

The Court rejected Wal-Mart's assertion that it was subjected to a "trial by formula" and instead concluded that a proper "replicated proof" method had been used. I'm guessing there will still be some "massaging" of the final number - but it looks like Wal-Mart will be on the hook for a couple hundred million dollars.

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.

3d Cir.: Simultaneous State and Federal Wage and Hour Class Actions A-OK

Welcome to an employer's worst nightmare. Does it get much worse than wage and hour litigation under the Fair Labor Standards Act (FLSA)? Well sure, it could be an FLSA collective action. Now, imagine that it gets even worse than that . . . an FLSA collective action and a state statute wage and hour class action at the same time! [Cue the thunder and lightning].

The two claims have inconsistent procedural provisions, which some have argued make simultaneous claims "inherently incompatible." The state claims would proceed under the Fed. R. Civ. P. 23 "opt-out" provisions, while the FLSA collective action proceeds under the statute's "opt-in" provisions. Some people also argue that the FLSA preempts the state provisions.

Well, Knepper v. Rite AidCorp., No. 11-1684 (3d. Cir. Mar. 27, 2012) (opinion here) was a double-whammy for employers. First:

We join the Second, Seventh, Ninth, and D.C. Circuits in ruling that this purported “inherent incompatibility” does not defeat otherwise available federal jurisdiction.

Second, the Court also held that the state laws are not preempted.

The end result? Employers here in Pennsylvania (and the rest of the Third Circuit) may face "hybrid" wage and hour class/collective actions under the FLSA and state laws. Doesn't that sound like fun?

Image: We had a flood at Lawffice Space headquarters - no one survived. By "Lawffice Space headquarters," I mean my laptop. And by "flood" I mean a glass of water.

The Bachelor Discrimination Lawsuit (Full Complaint Here) - COTW #88

ABC... do you accept this rose? And by "rose" I mean discrimination lawsuit. Yup, the employment law case of the week is a class action lawsuit against ABC and others associated with production of The Bachelor and The Bachelorette. The basis for the lawsuit is pretty straightforward:

Never, over 10 years and a combined total of 23 seasons of The Bachelor and The Bachelorette, has either show ever featured a single person of color—whether African American, Latino, Asian, or any other minority race or ethnicity—in the central role of the "Bachelor" or "Bachelorette." In 16 seasons of The Bachelor and 7 seasons of The Bachelorette,every person featured in the lead role on either show has been white.

The claims are based on 42 U.S.C. § 1981 (racial discrimination in the making of contracts) and racial discrimination under California state law.

This should not be confused with the class action I'm planning to file on behalf of aggrieved husbands whose wives force them to watch these shows - contact me if interested ;-)

You can read the full complaint in the real lawsuit here:
(if you cannot see the embedded complaint, click here to view online)
Bachelor

BREAKING: Wal-Mart Class Action is Back! - COTW #64

In case you've been living under a rock, there was this little case called Wal-Mart v. Dukes which would have been the largest employment law class action in history. Would have been... except the Supreme Court held that class certification was inappropriate.

The plaintiffs tried to bring a nationwide class action on behalf of about 1.5 million female Wal-Mart employees. Unfortunately, the class lacked the glue to tie their claims together.

Now, the plaintiffs are back! You can read a copy of their new Complaint here. This time around, they have narrowed their class to just female employees in Wal-Mart's California regions (estimated around 45,000 employees). We'll see how they make out this time around!

UPDATE: The Complaint describes two classes (current women employees and women employed since December 26, 1998), and claims each exceeds 45,000. So the lawsuit could be more than 90,000.

Note: Yeah, I'm jumping the gun a little on the Case of the Week - I just wanted to bring you this breaking story ASAP.

HT: Ross Runkel via Twitter.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

AT&T v. Concepcion as Employment Law - COTW #48

OK, if you read the headline and you're familiar with AT&T v. Concepcion (opinion here), you're probably wondering: Why is a consumer contracts case from April the Case of the Week? Good question, two answers. First, it has important employment law implications; and second, I'm planning a Supreme Court employment law year in review and didn't have anything on this important case yet (and no, my review won't be in Haiku, Eric Meyer).

Concepcion arose from cellular telephone contracts that included arbitration clauses requiring arbitration of all disputes... but did not permit classwide arbitration. And there's the rub. Under California law (called the Discovery Bank rule), class waivers in consumer agreements were unconscionable in certain circumstances and therefore unenforceable. This rule conflicts with the Federal Arbitration Act, and as we see in Concepcion, it also conflicts with the Supreme Court's current love affair with arbitration generally.

There are times when arbitration agreements are unenforceable, including upon "such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. §2. But here, the Supreme Court held that conditioning the enforceability of arbitration agreements on the availability of classwide arbitration procedures was not one of those times. Per Justice Scalia, writing for the five-Justice majority: "Arbitration is a matter of contract, and the FAA requires courts to honor parties’ expectations." And, the Discover Bank rule "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in the FAA. Therefore the state rule was preempted.

How does this tie-in to employment law? Well, replace cell phone contracts with employment contracts. Would the analysis be different? It's tough to say for certain, but I suspect employers will view this as a green light (or at least a flashing yellow) to tie employees in to arbitration agreements with class waivers. And it gives them a solid argument for enforcing those agreements.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

My New Post on ELinfonet: SCOTUS Defines Class Action Glue in Wal-Mart v. Dukes

Last Tuesday, the Supreme Court reversed the Ninth Circuit’s certification of the largest employment discrimination class in history. On Friday, I explained where the Supreme Court was unanimous and where they split 5-4. Now, in my latest ELinfonet post, I explain the five-Justice majority’s definition of the “glue” needed to hold a company-wide class action discrimination suit together. Enjoy!

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

Wal-Mart Class Action: 9-0 or 5-4? – COTW #46

Choosing this Case of the Week was a no-brainer. Even the mainstream media can’t stop buzzing about Wal-Mart v. Dukes (opinion). There appears to be some confusion though… was the Supreme Court unanimous (9-0)? Or was it the “traditional” 5-4 conservative split? [Actually, unanimous decisions are more “traditional” than any 5-4 split… but that’s another matter] The answer is: both!

In Wal-Mart v. Dukes, a handful of women sought to sue Wal-Mart for discrimination… on behalf of a class of some 1.5 million women who worked for the retail titan. Before they’re allowed to do that, the Court must certify the class. For a class to be certified, it must satisfy Federal Rule of Civil Procedure 23, subsection (a) and subsection (b). The Supreme Court agreed on one subsection… but not the other.

How was the Supreme Court unanimous?

I’d like to start with where the Supreme Court was unanimous. Unfortunately, that means taking the subsections out of order and starting with subsection (b). Now, there are multiple ways to satisfy this subsection. One way is under (b)(2):

[T]he party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.

(emphasis added). The Ninth Circuit certified the class using (b)(2). Here, the plaintiffs wanted to sue for back pay (monetary damages) though. Monetary damages are not “injunctive relief,” nor are they “declaratory relief.” The Supreme Court unanimously agreed that the Ninth Circuit was therefore wrong in certifying the class under (b)(2) (although the Court explained that there might be future situations in which monetary damages were incidental to injunctive or declaratory relief and could therefore be included under (b)(2)).

Instead, the class should have been analyzed under (b)(3) which requires, among other things, that a court decide whether “questions of law or fact common to class members predominate over any questions affecting only individual members.” Of course, there’s no reason to make that determination if the class doesn’t satisfy subsection (a), which brings us to…

Where the Supreme Court was Split

The five-Justice majority held that there was no reason to go back and analyze whether the class could be certified under (b)(3), because it didn’t even satisfy (a). Subsection (a) has a few requirements. At issue here, (a) requires that there exist “questions of law or fact common to the class.” Here, the 1.5 million potential claims just didn't have enough in common.

The Court explained that Wal-Mart had no nationwide discriminatory policy, in fact, it has a policy against discrimination. The Plaintiffs' evidence was insufficient to establish commonality:

• Anecdotal evidence from 120 affidavits isn't enough to bring 1.5 million claims.
• Statistical evidence of national and regional disparities was insufficient to show "store-by-store" disparity. For example, a regional disparity may be explained by only a handful of discriminatory stores/managers and not a region-wide (let alone nationwide) policy or practice of discrimination.
• Finally, the majority cast aside "social framework" testimony from a sociologist who explained that Wal-mart's "corporate culture" made them vulnerable to gender bias. He was unable to "calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking."

That was just not enough for the majority.

The dissent would have sent the case back to the lower courts by stopping after holding that the class should not have been certified under (b)(2). They thought the class might be certifiable under (b)(3). That would require a determination of whether the common questions predominate over the individual ones. The dissent felt that the evidence was strong enough to establish that common questions existed (therefore satisfying subsection (a)) - but whether they predominated (to satisfy subsection (b)(3)) was another issue to be left for another day. The dissent therefore argued that the majority was applying too high a standard under (a).

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

BREAKING: SCOTUS Reverses Class Certification in Wal-Mart Class Action

Moments ago, the Supreme Court issued its opinion in Wal-mart v. Dukes, which would have been the largest Title VII class action ever... except the Supreme Court reversed the 9th Circuit and held that certification of the class was inconsistent with Federal Rule of Civil Procedure 23(a) governing class actions.

I'll need to dig into this thing later today, but a preliminary skimming yields that the Court found that the potentially millions of Title VII claims did not have enough in common:

• "Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored."
• Sociologist's testimony that could not even indicate percentage of employment decisions affected by alleged "stereotypical thinking" was "worlds away from 'significant proof' that Wal-Mart 'operated under a general policy of discrimination.'"
• Granting supervisors broad discretion is insufficient to establish a discriminatory policy because "[i]n a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction."
• Wal-Mart's actual written policy forbids sex discrimination and provides for penalties for violation of it.

On a separate issue, the Court also held that: "Claims for monetary relief may not be certified under Rule23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief."

That's my quick-take. I may have more later, after I've had an opportunity to sit down and really read through it and think about it.

Pictured: Justice Scalia, author of the Court's opinion.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

The Other Wal-Mart Class Action

Wal-Mart recently witnessed the awesome power of the Pennyslvania Wage Payment and Collection Law (WPCL) first-hand. In Braun v. Wal-Mart, the Superior Court of Pennsylvania largely upheld a $187 million judgment against the retail titan with just some gentle trimming and recalculation around the edges. This class action case arose primarily from Wal-Mart’s alleged failure to properly compensate its employees for break time spent working and missed rest breaks.

The WPCL does not create any obligations itself, rather it is a handy tool for enforcing existing obligations of employers to compensate employees. Here, Wal-Mart policy and the Pennsylvania Minimum Wage Act required the stores to compensate employees for time spent working “off the clock” and for regular paid rest breaks. So, what makes the WPCL a handy tool?

First, it provides for mandatory attorney’s fees and costs if you win. It also contains a liquidated damages provision, allowing for additional collection in certain circumstances. Here, Wal-Mart faced a class action lawsuit from upwards of 187,000 employees, representing all Pennsylvania hourly employees for a given time period. How does this work in action?

• WPCL verdict: $ 49,568,541.00
• WPCL penalty: $ 62,253,000.00
• WPCL attorney fees: $ 33,813,986.24
• WPCL expenses: $ 2,670,325.52

 Throw in some extras:

• Common Law verdict: $ 29,178,873.35
• Statutory Interest: $ 10,163,863.00

 And you get:

• Total: $187,648,589.11

Behold, the awesome power of the WPCL (as noted previously, there will be some minor changes to those figures). Of course, Wal-Mart has that other class action pending... the Supreme Court opinion in Wal-Mart v. Dukes is expected any day now. I suspect that one will go a little better for them.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

SCOTUS Hears Largest Employment Law Class Action Ever

Yesterday, the Supreme Court heard oral arguments in Wal-Mart v. Dukes. You can read the transcript here, and the audio should be available on the Supreme Court website on Friday.

The Court will determine whether a federal court may hear a class action brought by a handful of plaintiffs on behalf of potentially all women employed by Wal-Mart after December 26, 1998... some estimates have this number hovering around 1.5 million. Contrary to some reporting, the issue is not whether Wal-Mart is too big to sue. The issue is complex, but much better described as whether the female employees' claims have enough in common to justify hearing them as one lawsuit.

The Justices focused a lot of attention on trying to find something that could tie the employees together. Specifically, they sought a company-wide policy or practice that could possibly cause discrimination across all of Wal-Mart's stores across the country. I don't think the Justices ever found the answer they were looking for.

The Plaintiffs' attorney tried to argue the policy or practice was that: "Wal-Mart provided to its managers unchecked discretion" in making pay decisions, but also had a "very strong corporate culture that ensures . . . the Wal-Mart way." Justice Scalia was perplexed and "whipsawed" (his word):

On the one hand, you say the problem is that they were utterly subjective, and on the other hand you say there is a -- a strong corporate culture that guides all of this. Well, which is it? It's either the individual supervisors are left on their own, or else there is a strong corporate culture that tells them what to do.

No satisfactory explanation emerged with Scalia summing up, "If somebody tells you how to exercise discretion, you don't have discretion."

So, how will it come out? Justice Kennedy seemed to hint that he would apply the Monell standard in determining whether the class could be company-wide. Monell is a Supreme Court case (and now standard) holding that a municipality is not liable for its employees' violations of the Constitution unless the infraction was the result of some official policy or custom. I predict the Supreme Court will apply a similar standard and hold that Wal-Mart had no such company-wide policy or custom and the class will fail.

We shall see though...

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor and employment law practice groups.

SCOTUS to Rule on "Largest Employment Class Action in History"

The Supreme Court issued an order today granting the petition for certiorari in the "largest employment class action in history." The claim to history's largest comes from Wal-Mart's petition to the Court. The Supreme Court has agreed to answer question 1 from the cert. petition:

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.

Additionally, the Court will review: "Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a)."

The Ninth Circuit certified the humongous class, described in Wal-Mart's petition as:

This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars . . . .

Needless to say, this case will have huge implications for class action claims in the future.

Posted by Philip Miles, an attorney with McQuaide Blasko in State College, Pennsylvania in the firm's civil litigation and labor & employment law practice groups.