Largest. Class. Action. Ever.

Yesterday the Ninth Circuit upheld (mostly) a California District Court opinion certifying a nationwide class action against retail giant Wal-Mart. The classes and sub-classes could encompass as many as 1.5 million current and former female employees of Wal-Mart, who may be entitled to billions in back wages and punitive damages. Not to mention the attorney’s fees and costs.

The case was filed in 2001 by The Impact Fund, a Bay Area non-profit organization that takes on large scale civil rights related litigation. The lawsuit alleges that Wal-Mart pays female employees less than their male counterparts (in violation of equal pay laws), and promotes women more slowly than men (in violation of Title VII).

What’s so interesting about this behemoth 137 page decision? Not a lot unless you’re an attorney who practices class action law. But the decision does represent a clear acknowledgement on the part of the judiciary that just because you’re an astonishingly gigantic and absurdly wealthy company doesn’t mean that you can’t be called to court to account on a wholesale basis for your (alleged) bad deeds. At least if you’re sued in the Ninth.  Without question, Wal-Mart will be looking to the Supremes for a reversal.

14 Responses to Largest. Class. Action. Ever.

  1. BigPete says:

    Ok just to make sure is it like all Wal-marts that give women lower funds or just in california?

  2. jesschristensen says:

    All Wal-Marts. The lawsuit and the approved class covers all 3,400 Wal-Mart stores in the United States.

  3. splifton says:

    I guess I just don’t get it. Who cares? Why is America trying to legislate morality upon it businesses? If Wal-mart wants to promote a disproportionate amount of male employees then exposes it. Let the American consumer decide, not the civil justice system…

  4. jesschristensen says:

    Well, the quick answer to that is because we lived through a time when businesses were free to discriminate against women, and it resulted in women not having the same access to jobs or wealth as men, and thus, women had less consumer power. Through democratic process, we decided that wasn’t a desirable status quo, and we enacted the Civil Rights Act of 1964.

  5. Dan says:

    It may be huge, but I’m not sure about the biggest ever. 22 bil is the number to beat AFAIK.

    • jesschristensen says:

      I don’t know about dollar-wise (damages haven’t yet been calculated). I meant in terms of class size. :)

  6. splifton says:

    Both your “quick answer” arguments are unconvincing…

    This sight often talks about “The market place of ideas” and how it can be used to influence action or inaction.

    Although I do not condone the promotion of one sex or another, or even one race over another, the answer still is a resounding “Who Cares”? If the market place of ideas is truly the arbiter of commerce then wal-mart would be out of business. Instead, Wal-mart thrives because stupid lazy shoppers care about one one thing…Paying the lowest price for an item. If they cared about women’s rights people would have stopped shopping there long ago and Wal-mart would have closed up shop as a victim of the invisible hand of the market.

    I find in difficult to comprehend a company as large as wal-mart having a company wide policy who’s only purpose is to subjagate women employees. I believe wal-mart treats all of their employees like shit to purposefully create high turnover and so they avoid paying their workers a living wage and benefits. All this to bring lazy stupid people lower prices.

    The people who shop there do not care, so why should I? Probably because you want me to feel sorry for these women, but I just don’t. Get a different job, work for a more “Green” Company, don’t stay at a place that promotes men at a faster rate. Follow the invisible hand of the market.

    “because we lived through a time when businesses were free to discriminate against women, and it resulted in women not having the same access to jobs or wealth as men, and thus, women had less consumer power.”

    Is this the same justification of TITLE IX? For god sakes, there are more women graduating from college with higher honors then men these days. But most of those women will probably never see the same level of compensation as their male counterparts for good reason. KIDS. If women would not shit out kids in their mid-twenties/early thirties thus flunk out of the trained/skilled workforce then I might be more sympathetic to your plight.

    As it stands right now, many of my girlfriends left good jobs to be a stay at home “mommy” and guess who suffers for that? Yep the businesses who spent years training them only to be left high and dry. Call me a male chauvinist or whatever hippie term, but the reality of the situation is a loud minority are the only people that care about this wal-marts business practices, and most of the “Class” for this lawsuit are just former employees trying to cash in on a quick buck.

    • jesschristensen says:

      You asked why America is legislating morality, and so I answered as to the why. Whether or not its a good idea is another question, and clearly, you think its not.

      I think its a lot more complicated than you make it out to be, though there are rational arguments that can be made on both sides. And, while I have no idea if you’re a chauvinist, you do seem a bit too angry to make it useful to have a discussion about it.

      • splifton says:

        And, while I have no idea if you’re a chauvinist, you do seem a bit too angry to make it useful to have a discussion about it.

        Angry? No definitely not anger. I guess sarcasm and humor does not translate well over the internet.

        Either way, this lawsuit is extremely suspect. First, the Class size of this lawsuit is supposedly over a million employees spread out over 3,400 stores; secondly there is no smoking gun linking the alleged behavior to the corporation; finally this lawsuit was brought on by a “non-profit” organization whose intentions appear to try to make the class as big as possible to have more negotiating power over the worlds largest retailer.

        Let me change the hypo a little bit to emphasize my point:

        http://weblogs.sun-sentinel.com/news/specials/weirdflorida/blog/2010/04/suit_ritzcarlton_told_employee_1.html

        Here is an article where a Black employee is suing the Ritz-Carlton in Naples, FL for both compensatory and PUNITIVE damages. The guest requested not to have “people of color” serve them and the Ritz honored that request. Where do we draw the line? The Ritz caters to high end guest who pay top dollar to have their request honored, should the Ritz have to lose that money because you and I don’t agree with that guest wishes?

        • jesschristensen says:

          I guess I didn’t pick up on the sarcasm vs. anger, so apologies.

          I agree with Marc that the Naples FL case you reference argues in favor of having anti-discrimination laws and lawsuits. Commerce isn’t, and in my book shouldn’t be, the be all and end all in determining the rules of the social contract. Personally, I think sometimes the whim of the market is given way too much say.

          I agree with the idea that people shouldn’t be prohibited from holding jobs, getting promoted, or being paid fairly because of race or gender (or religion, etc.), and I think that principle does and should outweigh the preferences of the Ritz’s customer.

          As for the idea that race and gender laws “have gotten out of control” — I think it bears noting that the laws themselves, aside from some statutory tweaks and minor revisions, have been largely unchanged since they’re inception. You can’t make employment decisions, or exclude from public accommodation, based on race or gender (or a handful of other categories). Prior to these laws, the marketplace was making the decisions, and since white men had all the money at that time, the marketplace was making decisions that caused massive and widespread social unrest. In other words, the marketplace of politics rose up and gave the marketplace of employers and business owners whatfor.

          Now, reasonable minds can agree or disagree about whether or not the litigation, and judicial thinking in terms of case law decisions regarding discrimination has gotten out of hand in some way. I’ve certainly had people come to me for representation crying discrimination where there clearly was none, but to those folks, I simply explain why they don’t have a case and wish them well. Other attorneys may not be so choosy.

          In terms of the Wal-Mart suit, I haven’t looked closely at the claims and I certainly haven’t seen the evidence. But, I do know Brad Seligman, from the Impact Fund that’s bringing the lawsuit, and I have tremendous respect for both Brad and the organization as being ethical, thoughtful, and extremely capable. Both he and the organization easily get the benefit of the doubt from me.

          Moreover, from a financial perspective, you simply don’t bring a lawsuit of this size or complexity without having pretty clear sense that you have legally sound, provable claims. Wal-Mart lost a nationwide wage and hour lawsuit (i.e., for wage violations) a number of years ago (after more than 6 years of litigation and millions spent by the attorneys representing the class), and although the class won, neither the class nor their lawyers have yet seen a penny of it because of the long appeals process. In other words, this is not the kind of thing you simply gamble on when working on a contingency basis, or if you’re a 501(c)3 that has legal oversight as to how it spends its money.

          • splifton says:

            First off: I think we agree on our principles more than we disagree.

            However, your arguments still seems to be based in the principle rather than this fact pattern . You have openly referenced “nationwide wage and hour lawsuit” that received judgment against Wal-mart. Conveniently there is now another lawsuit with a smaller yet substantial class (and sub-class) of over a million people suing Wal-mart. In my best Church-lady voice..”Well isn’t that special”.

            NEWSFLASH: Wal-mart treats ALL of it employee’s like shit (not just the women). Did you ever wonder how they keep ‘rolling back prices’ while the stupid lazy shoppers rolling in to buy up the cheap goods?

            Wal-mart’s business model is based on a high volume of unskilled or part time employees. Obviously this drives down cost which can be passed on to the customers who buy in large quantity.

            Forgive me if your personal endorsement of the Law Firm which decided to take on the world’s richest and most successful retail store does not instill confidence. This suit feels like a high profile marketing campaign for your friends San Francisco Law Firm.

            Either way, we obviously agree to disagree. This seems more like an instance where a small minority is creating this huge class out (of women) of the the millions of Americans who ever have been employed/fired by this giant corporation.

      • Splifton,

        While I *sorta* side with you — in that I think that out gender and race discrimination laws have gotten way out of control, I think that you have a few terribly flawed points here:

        If the market place of ideas is truly the arbiter of commerce — actually no. The marketplace of ideas is the arbiter of which ideas are accepted in the marketplace of ideas. This is a free expression concept – not a general market concept. There are very few people who would say that the labor markets should not have some,/b> regulation.

        (Oh, i will vouch for you that you’re not angry — just sarcastic).

        Now, as much as I agree that our discrimination laws are unnecessary, out of control, and seem (to me) to be little more than lottery tickets for the hypersensitive or the lazy/greedy, I do agree that there are a percentage of the cases that are legitimate.

        That said, for as long as they are the law, then they are the fuckin law. The Ritz Carlton, if those allegations are true, is absolutely screwed.

        I agree with Jessica that the law *was* justified at one time. But, when I hear stories like this one, I get pulled over to the side of the fence where I think we may still need them.

        Here’s the problem – if we allow the Ritz to discriminate because a couple of Brits didn’t want a black guy touching their plates, then we create a market for discriminatory public accommodation.

        • splifton says:

          If the market place of ideas is truly the arbiter of commerce — actually no. The marketplace of ideas is the arbiter of which ideas are accepted in the marketplace of ideas. This is a free expression concept – not a general market concept. There are very few people who would say that the labor markets should not have some, regulation.

          I am not arguing deregulation or non-regulation. My assertion is that the consumers express tacit acceptance through behavior. Americans will drive 20 miles out of their way to go to a Whole Foods (i.e. Whole Paycheck) to pay inflated groceries prices because a belief in a “Carbon footprint” Idea in the marketplace.

          I would respond with this question… Why have you never been to a Hooters which had a waitress (i.e Server) who was either 1) a Male, 2) Obese, 3) unattractive, 4) over 40. Why, because it is there business model. Young attractive women wearing next to nothing brings in customers. Much like employing unskilled part time employees who don’t qualify for benefits in order to keep prices low.

          Here’s the problem – if we allow the Ritz to discriminate because a couple of Brits didn’t want a black guy touching their plates, then we create a market for discriminatory public accommodation.

          How are they discriminating? Did they FIRE this employee? Did the Ritz ultimately deprive this server of any constitutional right? They asked him not to wait on a guest and moved him to a different section. This type of subtle discrimination happens in every business whether it be a waitress at Hooters, the Ritz Carlton, or Wal-Mart.

          This POS Ritz waiter, just like an arguable portion of these female Wal-Mart employees in this suit, seem to be the victim of society rather than their specific employer and are looking to cash in on prejudices that are inherent in every human being regardless of race/gender/nationality/society.

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