Wednesday, November 2, 2011

If at First You Don't Succeed…

Sue, sue, again. At least that's the approach of the plaintiffs' litigation team in the late and unlamented Dukes v. Walmart litigation that was unceremoniously bounced from the ranks of class-action cases by the Supreme Court last year. You may recall that the Court determined that the Ninth Circuit's approval of the class of approximately 1.5 million women who worked at Walmart during the relevant period was inappropriate and improvident. The majority on the Court focused on the allegation in the class certification that the plaintiffs were all similarly affected by Walmart's centralized policy of decentralization that allowed individual store managers to make employment decisions based on a scheme affected by centralized and pervasive anti-woman bias.
If that sounds like unmitigated lawyer doubletalk, then you agree with Justice Scalia and the rest of the majority.
The plaintiffs' law firm has now refiled the case, this time on behalf of only 90,000 current and former female employees who work for Walmart in California. But this doesn't seem to solve the problem mentioned above-that if these decisions were decentralized, it's almost per se impossible to certify a class based on the resulting treatment. In fact, this will be Walmart's defense in this case--namely that each individual employment decision, or at least each individual store manager's employment decisions, will stand on their own and cannot provide the basis for such a wide-ranging class.
The plaintiffs are alleging that they have new statistical evidence that was not put before the Supreme Court in the original litigation. Short of some kind of clear link between these thousands of employment decisions at issue, plaintiffs may find it's "class dismissed", even in the relatively employee-hospitable environs of the Ninth Circuit.

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