The Risks Of The Wal-Mart Class Action

The U.S. Supreme Court heard oral argument yesterday on the Wal-mart Class Action.  This case has me worried.

The lawsuit is a giant class action about gender discrimination -- potentially the largest class action in history.  A group of women sued Wal-mart in 2001, claiming that the company systematically discriminates against women in both pay and promotional opportunities.  After years of litigating, and after reviewing statistical evidence showing that hourly and salaried female employees receive lower pay and less advancement opportunities than do males, the trial court certified the case to proceed as a class action.  This decision was upheld by a 6-5 decision of the 9th Circuit Court of Appeals in California.  Wal-mart then requested review by the Supreme Court.

The issue before the Supreme Court is not whether Wal-mart discriminates.  Rather, it is whether the case can proceed as a class action.  If not, each of the hundreds of thousand women who are potential class members would be required to file her own individual lawsuit.  What is at issue is the "commonality" requirement for class actions -- whether or not the claims of hundreds of thousand women, who worked at 3,400 stores under tens of thousand different managers, are sufficiently related to allow the case to be treated as a class action.  Wal-mart's argument is, essentially, that a class this size simply cannot, as a matter of law, meet the commonality requirement.  This argument was rejected by the trial court and the 9th Circuit.

I am worried about this case because it presents the corporatist majority on the Supreme Court, led by Chief Justice Roberts, a golden opportunity to eviscerate the class action mechanism.  By way of disclosure, I am a class action lawyer.  As an employee rights advocate, I have found one of the most effective ways to hold a large company accountable for systemic wrong-doing is the class action.  Which is a major reason why large corporations hate class actions and would love to see it become much more difficult to proceed with a class action.  And as the Citizens United decision makes clear, the current Supreme Court is much more concerned with the rights of corporations that with the rights of individuals.  And while the Court occasionally surprises me, I fully expect this decision to be in line with Citizens United.  And that will make it much more difficult for employees to band together to fight against illegal and unethical conduct by large employers.