On Monday the Supreme Court agreed to review what could become the largest employment discrimination case in U.S. history. The case, originally filed in 2001, centers on the claim that as many as 1.5 million female Wal-Mart employees were paid less than their male counterparts and were given fewer promotions. At stake are potentially billions in back pay and punitive damages. The Supreme Court has decided to hear Wal-Marts bid to block the suit on the grounds that thousand of individual personnel decisions do not constitute the basis for a class action suit: Arguments for and against and limits of class action litigation.

Guests

  • Alexandra LaHav professor of law, University of Connecticut
  • Jonathan Cohn attorney, Sidley Austin
  • Joseph Sellers attorney, head of the civil rights & employment practice group,Cohen Milstein
  • John Coffee professor of corporate law,Columbia University

Transcript

  • 10:06:54

    MS. DIANE REHMThanks for joining us. I'm Diane Rehm. More than a million current and former female Wal-Mart employees are alleging that the world's largest private employer discriminated against them in both pay and promotion opportunities. On Monday, the Supreme Court announced it would weigh in on the question of whether their suit can be considered a legitimate class action. Joining me to talk about the case, why it's attracting so much attention, Joe Sellers, he's co-lead counsel for the employees, Jonathan Cohn, he's an attorney who wrote an amicus brief in support of Wal-Mart, and from a studio at WNPR in Hartford, Conn., Alexandra LaHav, she is professor of law at the University of Connecticut.

  • 10:08:03

    MS. DIANE REHMAnd, of course, throughout the hour, we'll welcome your calls, your questions, comments. Join us on 800-433-8850. Send us your e-mail to drshow@wamu.org. Or you can join us Facebook or Twitter. Good morning to each of you. Joe Sellers, thanks for being here.

  • 10:08:34

    MR. JOSEPH SELLERSThank you.

  • 10:08:35

    REHMJonathan Cohn, I'm glad you're here.

  • 10:08:38

    MR. JONATHAN COHNIt's great to be here, Diane.

  • 10:08:39

    REHMAnd, Alexandra LaHav, thank you for joining us.

  • 10:08:44

    PROF. ALEXANDRA LAHAVThank you very much.

  • 10:08:45

    REHMJoe Sellers, you say that though this is potentially the biggest class action suit in the nation's history, it's really the power of one. Explain what you mean.

  • 10:09:02

    SELLERSThis case, while it involves many women, really began with the actions of one woman and demonstrates the power of what one individual can accomplish. A woman, who served as a cashier in a Wal-Mart store in Oklahoma, saw that her male counterpart was receiving a raise, and she was not. And she inquired of her manager, who was a male, why she wasn't receiving a raise. And his response was because he has a family to support, and you don't -- which itself is an unlawful response. But she did know that, and she said, well actually, I'm a single mother, and I do have a family to support. I want a raise.

  • 10:09:43

    SELLERSAnd the manager said, I'll think about it. Tell me how much you -- draw up a budget and show me how much you actually need, and after she did that, she received a raise, but less than her male counterpart. She complained to another, more senior manager, who was unresponsive. And she eventually went to a lawyer, who went to other lawyers, who concluded that there was a lot of sex discrimination cases pending against Wal-Mart and that a bigger case was needed in order to get the attention of the company and make an impact on its culture.

  • 10:10:14

    REHMSo I gather that this first woman, whose name is Betty Dukes, is that correct?

  • 10:10:22

    SELLERSNo. The woman who started this is Stephanie Odle. Betty Dukes...

  • 10:10:24

    REHMStephanie Odle. Right.

  • 10:10:26

    SELLERSBetty Dukes is the lead plaintiff in the case.

  • 10:10:27

    REHMOkay. And Stephanie Odle is no longer part of the suit, is that correct?

  • 10:10:33

    SELLERSShe's a member of the class but not a lead plaintiff.

  • 10:10:35

    REHMI understand. So how did the case then broaden to include so many employees?

  • 10:10:43

    SELLERSWell, the women who came to us led us to conduct an investigation that lasted an entire year, where we interviewed nearly a thousand women and some men who have worked at Wal-Mart, and who had worked in stores all over the country. And from that, we were prepared to conclude that the practices that were being challenged -- that they wanted to challenge -- were common throughout the company, and that a broader case was warranted, and so we filed the case that is presently now before the Supreme Court.

  • 10:11:13

    REHMAnd why is the Supreme Court taking up this case?

  • 10:11:19

    SELLERSWell, that's a good question. We argued, of course, that it was unnecessary for it to address the case at this time. It apparently believes there are some legal issues that the class certification order raises that it would like to clarify.

  • 10:11:38

    REHMThat sounds fascinating. Joe Sellers, he's co-lead counsel for the employees of Wal-Mart and other Sam Club -- Sam's Club I gather. Jonathan Cohn, can you answer that question? Why is it that the Supreme Court is taking up this case?

  • 10:12:02

    COHNDiane, it's probably because of the enormous size of the class. This issue that's presented to the court is one that's been kicking around for many, many years. Other petitioners in the past have tried to get the court to hear it -- the court has not, but now, the court has. And the question is why? And no one knows. The court doesn't tell the public why it's taking one case and not another. But one good surmise is that, as Joe mentioned, this is an enormous class with more that one million plaintiffs from all across the country, Wal-Mart has some 3,400 stores. You have tens of thousands of managers. It's an enormous sprawling class, and, probably for that reason, the court granted cert.

  • 10:12:44

    COHNBut there is one additional complexity here. The court not only granted cert on one of the questions that the petitioners, Wal-Mart, wanted the court to hear, but the court also took the very unusual step of crafting its own question and asking the parties to address that additional issue. And that's not too typical in Supreme Court practice.

  • 10:13:05

    REHMAnd the additional issue is whether these employees can be certified as a class, is that correct?

  • 10:13:16

    COHNWell, both questions concern the propriety of the certification. But the second question in which the court granted cert concerns what's called Rule 23 (a) of the Federal Rules of Civil Procedure. And this establishes -- this rule establishes the fundamental requirements for all class actions. And the two most relevant here are what's known as commonality and typicality. The various members in the class have to have common issues, common claims. And the named plaintiff, Betty Dukes, has to be typical of the other plaintiffs in the class. And the court probably looked at this very enormous class and said, you know what, we have some doubts as to whether Ms. Dukes is typical of the other plaintiffs, and also whether there's a common theme or common issues between the more than one million plaintiffs.

  • 10:14:09

    REHMJonathan Cohn, he is an attorney at Sidley Austin and has submitted a friend of the Wal-Mart -- the people against whom this case is being brought. Alexandra LaHav, as professor of law, you've written that this case goes to the heart of the aspirations and limitations of the class action device. Explain what you mean.

  • 10:14:45

    LAHAVWell, as I see it, and especially given the additional question that the court posed, the -- what's really going on here is a question about how is the court going to deal with the problem that is true in every class action, which is that a class action purports to bind a lot of people who are not before the court in individual lawsuits. And there's a great benefit to be had from that, which is that people can come together and solve a collective action problem where it might be very difficult for one individual to maintain a suit.

  • 10:15:21

    LAHAVBut you bring them all together, and there's that capacity to fund the lawsuit and, therefore, to potentially get compensation you wouldn't otherwise -- or get a result, you know, an injunction that you wouldn't otherwise be able to get. The problem is that people do differ from one another. And so the question is, how similar do people have to be to one another in terms of their -- in this case, their experience in the workplace? And what is -- what -- how much variation within the class can we tolerate in order to give people collective relief?

  • 10:16:00

    LAHAVI think -- my own view is that there's a lot of talk about the size of the class action. After reading the briefs, I'm not quite sure what the size of the class action, in fact is. But the real question, the legal question that I think the court, at any rate, ought to face is not, is it too big, but are these people too different from one another? You could have a very big class where people really face the same discrimination. And the number shouldn't matter. What should matter is, are they the -- are they sufficiently the same, that we should be able to maintain a class action? And that's the part that goes to the heart of the class action device. And then there's the second issue, which is what kind of class should this be?

  • 10:16:51

    LAHAVAnd what kind of protections should we give class numbers? And when I say protections -- procedural protections -- the flip side of that is that the more that you require class members to show in order to proceed as a class, the harder it is for them to proceed as a class, right? To prove all the -- the more you make people prove, the harder it is for them to get a class certified. And that may impede their ability -- or the ability of some of them, anyway -- to be able to come to court and say, this is, you know, this is the harm that I suffered, and I would like an injunction or compensation or whatever it is that an individual plaintiff would want.

  • 10:17:33

    REHMAlexandra LaHav, she is professor of law at the University of Connecticut. If you'd like to join us, call us on 800-433-8850. Send us your e-mail to drshow@wamu.org. Joe Sellers, if this case moves forward as a class action case, how much bigger could it be than it was before or those that have come before?

  • 10:18:09

    SELLERSWell, the case is larger than any other employment discrimination case that's been brought. But, of course, it's against the largest private employer in the world, so it's not surprising that this is a case of large scope. But to address the point that Professor LaHav raised, we certainly recognize the importance of showing that these women -- and have showed that these women have all held jobs that are similar to each other. They've been subject to the same practices, and, therefore, we think they ought to be part of the same class.

  • 10:18:42

    REHMJoe Sellers, he is co-lead counsel for the employees bringing suit against Wal-Mart. And we'll take a short break. We'll be right back.

  • 10:20:03

    REHMAnd as we talk about the Wal-Mart case, the case of employees suing Wal-Mart because of what they consider wage discrimination against employees -- female employees -- also promotion discrimination against those employees, joining us now from New York is John Coffee. He is professor of law at Columbia University. Good morning to you. Thanks for being with us.

  • 10:20:37

    PROF. JOHN COFFEEThank you.

  • 10:20:38

    REHMTell me your perspective on why the Supreme Court agreed to hear Wal-Mart's appeal.

  • 10:20:47

    COFFEEWell, there have been a series of recent decisions by the Supreme Court in which they have suggested, or hinted without directly holding, that they believe there has to be a sufficient level of internal cohesion or a unity within the class and among the class members before a class action should be certified. This gives them a chance to flesh out what they mean by that. I don't think the problem here is so much that there are a million people in the class. It's more that this may be a very sprawling class action with very diverse types of plaintiffs. Some are trainees.

  • 10:21:24

    COFFEESome are basically assembly line workers or janitors. Others are shop managers or mid-level executives. And they have very diverse backgrounds, very diverse locations and very diverse experiences 'cause we have 3,400 stores within this class. That may be too much for the Supreme Court. They have a concern. I think everyone can recognize that within a million women, there probably have been some who have been discriminated against. There probably are some others who have not been discriminated against and will get a free ride if there is a settlement caused by the immense size of this class, which forces Wal-Mart to settle.

  • 10:22:01

    COFFEEIt's that possibility that we've got true victims and other people or people with diverse and sometimes conflicting interests that, I think, raises concerns for the court. And I think what they're going to basically focus on is whether or not the class is too sprawling to meet what's known as both the typicality requirement and something else called the requirement for fair and adequate representation. They're going to be focused on this Section 23 (a) , which I believe Prof. LaHav also referred to.

  • 10:22:29

    REHMYes. Now, some people have suggested that this might be a business-friendly court. And I want to ask you to what extent you agree that the court's decision to hear the case reflects that inclination that would protect corporate interests.

  • 10:22:57

    COFFEEThere's no question, but the Supreme Court has restricted the standards for class certification. And class certification is the only way that small claimants can have an effective litigation remedy because, essentially, they hold what economists call negative value claims. That is, the cost of asserting the claim is more than the likely recovery. The Supreme Court has tightened those requirements steadily in a variety of cases. However, I also have to say this was probably a class action that no other circuit -- other than the Ninth Circuit -- would have certified.

  • 10:23:32

    COFFEEMuch smaller employment discrimination class actions have been rejected by a number of other circuits. So we could well have a large majority of the Supreme Court, including some of the more liberal judges, also saying this case should be remanded. To me, the critical question will be whether the court says there can be no class action, or whether the court says it has to be reformulated and possibly broken down into smaller classes. If you had a class, for example, of just the California State residents, that would probably be 20 million or so, and that'd be a very effective class action.

  • 10:24:06

    COFFEEAnd you might have other classes of other states. So I think the question is what relief the court ultimately decides on. If they decide simply that the class has to be reformulated and fragmented, that's still a viable class action. But if they were to say that you couldn't get monetary damages in this kind of class action...

  • 10:24:23

    REHMMmm.

  • 10:24:23

    COFFEE...that would be a very sweeping reversal of prior law, and that would really close the courthouse door to employment discrimination claimants.

  • 10:24:30

    REHMSo...

  • 10:24:31

    COFFEEEverything depends on where they come out on the remedy.

  • 10:24:33

    REHMSo what you're saying is that this decision on this case could set the standard for all future class action cases.

  • 10:24:44

    COFFEENo question. This is going to be the most important class action case in the last 10 years.

  • 10:24:49

    REHMDo you want to speculate on how you think the court might decide on the questions it has chosen to consider?

  • 10:25:00

    COFFEEI have to tell you that the betting is pretty high that the court is not going to simply affirm the Ninth Circuit. The Ninth Circuit has a very poor track record of success when its cases are taken up by the Supreme Court. I think the critical question is whether the liberal members and maybe a centrist justice will agree that all that should be done is remand to the Ninth Circuit, to ask it to consider whether or not it needs to use either subclasses or break this down into a series of smaller class actions.

  • 10:25:30

    COFFEEThat's not a mortal wound to this remedy. If they were to go further and say, you could not obtain monetary damages in this kind of class action, but only obtain injunctive relief -- which is one of the claims that Wal-Mart is raising -- that would be a much more total defeat for the interest of employment discrimination victims. So I hope that the outcome here might be one in which they decide this class action has to be reformulated and it can't be this broader sweeping, but that smaller class actions remain viable.

  • 10:25:58

    REHMAlexandra LaHav, I'd be interested in your reaction.

  • 10:26:04

    LAHAVWell, I think I -- as I usually do, I agree with Prof. Coffee's analysis. It does seem that if the court -- on the question that it's certified with respect to Wal-Mart's actual brief, what Wal-Mart asked it to consider, if the court goes the way that Prof. Coffee said, that would be a major change in the anti-discrimination law in the United States. And, indeed, his evaluation of it, I couldn't agree more. I just want to point out one interesting irony with respect to your question about business friendliness. And that is that Wal-Mart itself is not only a defendant sometimes, but also a plaintiff in lawsuits. And, in fact, much of the litigation in the United States is between businesses because, you know, people get into disputes, and they go to the courts to resolve them.

  • 10:26:57

    LAHAVAnd one of the interesting cases that Wal-Mart was involved in is Wal-Mart was actually the lead plaintiff in a class action against Visa and MasterCard with respect to some practices that they were -- that those companies were engaged in. And Wal-Mart was leading a group -- a very large -- I think several million plaintiffs who are small businesses, who were complaining about these practices. And the court -- the Second Circuit in that case actually certified that class action, and there's -- it was quite a disputed opinion, and it happened to have been written by now Justice Sotomayor.

  • 10:27:39

    REHMMmm.

  • 10:27:40

    LAHAVAnd that was in, I think, 2003. And subsequently, the standard that Sotomayor articulated -- which I won't go into because it won't be terribly interesting to the listenership, I think -- was subsequently reversed. And she was part of the opinion that then decided that the standards should be tightened quite a bit. So to the extent that the standards for certification are loose or tight, there's both benefit and detriment, I think.

  • 10:28:09

    LAHAVWith a respect to employment class action specifically -- obviously, a company like Wal-Mart is always going to be on the defendant side -- but in terms of the broad sweep that Prof. Coffee was talking about, that broad sweep could have a lot of effects on other actions that, you know -- that, I think, as a policy matter, we might want to see brought because they have a positive deterrent effect and because individuals get compensated when they ought to be compensated, especially in the very small claims that Prof. Coffee was referring to, the so-called negative value claims.

  • 10:28:47

    REHMAnd turning now to you, Joe Sellers, how much money is involved here, speculatively?

  • 10:28:58

    SELLERSI'd have to speculate. We have not, obviously, gone to trial, and no jury has determined whether to award relief, and if so, how much. But, certainly, if monetary relief were awarded to some members of a class that could number more than a million people, it will involve a significant amount of money. I want to add one thing, however, which is, I think, important. And that is the settlement of a case like this, were it to occur or go to trial, would inevitably find that some women did not -- do not receive compensation, do not receive lost wages, and others do.

  • 10:29:35

    SELLERSAnd that happens in every class action. Not every member of the class ultimately receives relief. And so the concerns about a free ride for women who would be part of this class, I think, are probably not justified in this particular case.

  • 10:29:49

    REHMAnd another question for you, Joe. If, in fact, the Supreme Court says this is not a class action suit, what does that say to employees around the country?

  • 10:30:07

    SELLERSWell, I think, as Prof. Coffee kind of suggested, it may depend a lot on how it says that. If it says, you can't get monetary relief in these kinds of cases, I think that will be an enormous setback for workers in this country who may depend on these kinds of cases to be able to vindicate important civil rights, and -- which they may not be able to do very easily on their own and depend on class actions, whether of this size or smaller, in order to vindicate those rights. If the court were to conclude either that this class is acceptable in its present form or that a smaller set of classes were more appropriate, I think that that would be informative to all of us in how to structure cases, going forward, to make sure that they satisfy the court standards.

  • 10:30:56

    REHMHow do you see that, John Coffee? If, in fact, the Supreme Court decides with Wal-Mart, that this is not a class action suit, will employees be less likely to try to bring these class action suits before courts against employers?

  • 10:31:25

    COFFEEWell, if the Supreme Court says either, that there cannot be monetary damages awarded in this type of class action or that there can be no class action at all because the claims are absolutely too diverse, that would effectively end effective enforcement of Title VII of the Employment Discrimination Laws. And that would basically mean that there is no effective remedy, even if discrimination was obvious, because the average employee cannot afford the cost, which can easily exceed millions of dollars to bring an effective action.

  • 10:31:58

    COFFEEIf, however, the court says this is just a matter about making sure that the class has to have greater internal cohesion and unity so you can put together all of the employees who work within the store at the -- below managerial level, but you have to have a different class for the managerial employees or you have to break this into individual states or locations of the country, that would be a setback for the plaintiffs. But it would still leave a clear roadmap for the future as to how these kinds of class actions could be brought. And I think they would be more efficient than trying to get everybody into one class action.

  • 10:32:33

    COFFEEUltimately, no one would believe there could be a class action brought by everyone who applied for or who got a home mortgage from a major bank. That's just too strong a class. And saying that every employee of the largest private employer belongs in one class action is a step that I think the Supreme Court is going to draw back from. The question is whether the majority that gets together and forms the majority will come up with a compromise that leaves an intermediate-sized class action that is viable.

  • 10:33:01

    REHMJohn Coffee, he is professor of corporate law at Columbia University. Thank you so much for joining us. And you're listening to "The Diane Rehm Show." Let me come back to you, Joe. Looking back, do you think it was a mistake to try to put together this large a class action suit?

  • 10:33:32

    SELLERSNo, I don't. And I want to make one comment about something Prof. Coffee said. Not withstanding the perception about this case, although it is a very large case, the women who are members of it were engaged in the sales operations at the stores of Wal-Mart in this country. It does not include janitors. It does not include truck drivers. It does not include people who were not engaged in the same line of work. And the women who were members of this class have held the same positions in each of these 3,400 stores throughout the country.

  • 10:34:06

    SELLERSThey were the subject of the same personnel practices that we're challenging. We found evidence of -- that they were subject to -- that the results of those practices led to them being the subject of discrimination and being underpaid in every one of the 41 regions in which Wal-Mart does business in this country. And so it -- there would be -- it's possible the court may divide the case in some fashion, but it makes a lot of sense to have all these claims tried involving the same issues in one forum at one time.

  • 10:34:38

    REHMJonathan Cohn, as an attorney who wrote an amicus brief in support of Wal-Mart, how do you see it? Was it a mistake to try to bring together this huge group of women?

  • 10:34:55

    COHNI think at this point, Joe must be thinking, at least on some level, it's a mistake because the Supreme Court, in all likelihood, did not grant cert to affirm the Ninth Circuit. When the Supreme Court grants cert, especially on the Ninth Circuit, the odds are the Supreme Court is going to reverse. And that's especially true here when the Supreme Court took the unusual step of crafting its own question. So I don't know exactly what the Supreme Court is going to do here.

  • 10:35:20

    COHNBut the smart money is the court is not going to affirm the Ninth Circuit. And what probably will animate the court's decision is the fact that this is a very big, very sprawling, nationwide class action. You have over a million plaintiffs in the class. You have tens of thousands of store managers and regional managers that allegedly made these decisions, 3,400 stores, 170 different types of jobs. This is a very big and very sprawling class action.

  • 10:35:50

    REHMBut tell me, in your words, what remedy is left for female employees who believe they have indeed been discriminated against by a large employer, like Wal-Mart, who don't have the money to hire an attorney on their own? What is their alternative other than to come together in a large class action suit?

  • 10:36:23

    COHNTwo things, Diane. First of all, you can have -- as Prof. Coffee mentioned -- smaller, more discreet, less sprawling classes that precede under this type of class action model known as a 23 (b)(2) class action. But, second, there are other types of class actions. And there's another one, 23 (b)(3), which allows a class to proceed if, among other things, the common issues predominate and the class action model is the superior way to proceed in a litigation. So it's not as if the plaintiffs would be without class action remedies. Moreover, Diane, even if there were no class action remedies, that does not mean the plaintiffs don't have their day in court. It simply means they have to proceed individually. The courthouse doors are not shut.

  • 10:37:10

    REHMCourthouse doors are not shut, but it's still going to cost them individually as opposed to as a group, correct?

  • 10:37:22

    COHNIf they proceed individually, it will cost them individually. But, again, there are other models such as the 23 (b)(3).

  • 10:37:27

    REHMJonathan Cohn, he's an attorney who wrote an amicus brief in support of Wal-Mart. We also have here in the studio, Joe Sellers. He's co-lead counsel for the employees, and on the line, Alexandra LaHav, professor of law, University of Connecticut.

  • 10:40:03

    REHMAs we talk about the class action suit against Wal-Mart that the Supreme Court has decided to consider one piece, that is whether this can go forward as a class action suit. George in Christiansburg, Va. writes, "Part of the Wal-Mart claim against the class action is that class is comprised of people from many different stores and places under many different managers. However, Wal-Mart is one of the most centrally-controlled firms in the world. I am told that each Wal-Mart store's lighting and temperature is controlled from Missouri. If that's the case, then the claim of individuals in a class from disparate circumstances would seem to be stood on its head." Now, to you, Joe Sellers, how are you going to make the case that these female employees of Wal-Mart were subject to a single set of corporate policies?

  • 10:41:28

    SELLERSWell, we have a very extensive factual record that we think demonstrates this. And I'll summarize some of it for you. To begin with, we have the company's own workforce data that -- from which we found, as I said before, that women were underpaid compared to men in every one of the 41 divisions in which the company does business and that women were -- received fewer promotions than men in every single area which we studied. So we see results that are consistent throughout the company for all women.

  • 10:42:00

    SELLERSIn addition, as the e-mail you read reflects, this is a company that, not withstanding it having a large number of facilities, is very tightly controlled from Bentonville, Ark. They have a training institute in which every manager in every store has to go through where they provide them with common training about the approach to -- the Wal-Mart ways is what it's called -- a common, very tightly controlled culture. They monitor the decisions on promotion and pay throughout the company from Bentonville. They have, as I said, very similar -- they have identical jobs in all these different stores, not withstanding their different stores, and they are subject to the same personnel practices.

  • 10:42:41

    REHMBut do you have to prove that each woman was injured in precisely the same way to meet the standard for class action suit?

  • 10:42:53

    SELLERSNo. It's very well established in class action jurisprudence that differences in the -- whether every person was injured in the same way is not necessary in order to have them all participate in the same case. In virtually every class action that I know of, some of the members of the class, as long as they've been the subject to the same practices, whether those practices actually injured each woman is not critical to determining whether this case should proceed as a class. Just as if you had a case involving consumers where every one of them might have been the subject of some consumer practice but some were injured more than others.

  • 10:43:33

    REHMJonathan Cohn, how do you respond?

  • 10:43:36

    COHNWell, Diane, a couple things. First of all, although there might have been some similarities for some of the claims, I don't think even Joe can say that all one million-plus plaintiffs have common claims. Again, we're talking about over a million plaintiffs over the course of a decade. More than two-thirds of these plaintiffs don't even work for Wal-Mart anymore. They worked in 3,400 stores. And, as Joe conceded on page three of his Supreme Court brief, there was substantial discretion over employment decisions in the hands of these many, many tens of thousands of managers who worked at Wal-Mart over the past decade.

  • 10:44:15

    COHNThe reason why my client, DRI -- Voice of the Defense Bar -- got involved was because this is an enormous sprawling class action covering tens of thousands of managers in 3,400 stores, 170 different types of jobs. The managers had substantial discretion, and the claims of the plaintiffs are different.

  • 10:44:35

    REHMWhat about that discretion, Joe?

  • 10:44:38

    SELLERSWell, the -- we, in fact, challenged that, the exercise of that discretion. There's no question that Wal-Mart gave to its managers a good deal of discretion to make pay and promotion decisions. But let me give you examples of how that discretion operated. Wal-Mart did not post job vacancies at all for most of these positions for the period of time covered by most of this class -- period. As a result, women, more so than men, were left out of the network with which to be able to be notified if there were vacancies.

  • 10:45:10

    SELLERSMost of the managers are men, and they -- the evidence shows that they tapped on the shoulder of other men to favor them for promotional opportunities. So that's a perfect example of while they have discretion, that discretion was exercised adversely to women.

  • 10:45:28

    REHMAll right. Let's open the phones. John in Baltimore. Good morning, you're on the air.

  • 10:45:35

    JOHNGood morning. I actually didn't have a question. I had, basically, a comment about this. It's very interesting. It may be one reason why my daughter never tried to join the class action. She worked at Wal-Mart. And after some time, they put her in charge of all the cashiers in the store -- essentially a department manager. They never paid her for more than the regular run-of-the-mill cashier, even though she was responsible. She went to management meetings. And after six or seven months of that and the pressures that were involved in it, she quit. And I said, why don't you, you know, file charges against them or something? And she said, I just don't want to have anything more to do with them.

  • 10:46:25

    REHMAlexandra, do you want to comment?

  • 10:46:29

    LAHAVSure. So I think that the caller's comment really illustrates the purpose of the class action device. There are a lot of people that, for a variety of reasons, wouldn't bring an individual suit. And the class action lets somebody else represent that interest. And I think, you know, Wal-Mart, you know, is a fascinating and -- company. And there's good things about it and not good things about it, just like everything else in life. But one of the things about Wal-Mart is that it is known for being a very aggressive litigator in cases both as plaintiff and as defendant.

  • 10:47:09

    LAHAVAnd that might put some people off in terms of bringing a lawsuit against a big company like that. The power of numbers, the collective action gives some safety, I think, to individual plaintiffs and allows a lawsuit like this to be brought. And so that's something -- I think when people are thinking, should we have class action of this type or not? That's something, I think, to think about. And also, I'd just like to add, with respect to the argument that I think is quite prevalent, that is it seems like every amicus brief made it on the -- at least with the application for cert.

  • 10:47:49

    LAHAVAnd that was that this class action is so big, it's going to really pressure Wal-Mart to settle. And that might not be fair to the company. And that I think Wal-Mart's history of litigation shows that it is not afraid, and it will litigate cases. And if this case is indeed litigated, then we'll find out, you know, what the answer is to the question of whether this policy was, in fact, discriminatory. And so...

  • 10:48:15

    REHMHaving...

  • 10:48:16

    LAHAV...I think that's an important thing to keep in mind.

  • 10:48:18

    REHMI wonder whether any of Wal-Mart's policies have changed since, in fact, this case was brought up first in 2001. Jonathan.

  • 10:48:31

    COHNJoe would be better equipped to answer the factual questions and any changes that Wal-Mart has made. But one point that I think is getting lost here is what type of class action this is. As I mentioned earlier, there are other types of class action models that could be available. But this particular class action under 23 (b)(2) is what's known as a mandatory class action. Plaintiffs don't have the choice, the freedom to opt in or opt out of that class. All the women who are part of this class are forced to participate, and that means a couple of things.

  • 10:49:03

    COHNOne, they just don't have the choice. If they don't want to sue at all, they don't have that choice. But, also, if they want to bring their own case, they can't do that. They can't bring their own case. As a result of that, the following happens. Those plaintiffs who really have meritorious claims, who might have been the victims of discrimination, are forced, in essence, to subsidize other plaintiffs who have weaker claims. There's an averaging, a melding of these various claims. And those with strong claims are subsidizing those with weaker claims.

  • 10:49:36

    REHMWhat about that, Joe?

  • 10:49:37

    SELLERSWell, let me say, first of all, the particular form of class action that's been certified here, when that rule was enacted, Congress described that rule as meant for civil rights cases. So one of the reasons this case was brought under this particular rule is because it was meant for this kind of case. With respect to whether women can opt out of this case, can pursue their claims on their own, in fact, the district court that certified the class at our urging provided a mechanism for women who wished to opt out...

  • 10:50:08

    REHMI see.

  • 10:50:08

    SELLERS...to do so. So there is no involuntary participation in this class if it's allowed to go forward in this form.

  • 10:50:15

    REHMAll right. To San Antonio, Texas. Hi, Albert. You're on the air.

  • 10:50:22

    ALBERTHi, Diane. Thank you. This is my first time calling. I love your show. I would just like to say that I was involved in a large class action. I also work for Wal-Mart. And the class action I was involved in, maybe the judge was just an advocate or pro-plaintiff, but he appointed special masters, monitors. He had them people check everyone in every policy, every practice, whether discretion was part of the policy and practice, and they discussed those issues and litigated each issue and had so many hearings that, you know, it grew into a massive lawsuit.

  • 10:51:09

    ALBERTIt went to the Fifth Circuit, was sent back to the lower courts -- Ninth District here in Tyler, Texas -- and then they re-mandated back to issue more findings and break it down. And he was also the judge that decided the LULAC versus the FBI, when all those FBI agents had to be given their promotions that they hadn't gotten in years. And they also studied each person's record in order to promote him accordingly and pay him back for all those years he wasn't promoted. And we end up with a deputy Hispanic FBI in Washington the next following year after that decision.

  • 10:52:02

    REHMOkay.

  • 10:52:02

    ALBERTIf I worked for Wal-Mart right now and I was in that lawsuit, I'd be scared hearing this conversation going on because I don't hear no case law supporting them.

  • 10:52:12

    REHMJoe.

  • 10:52:13

    COHNWell, first of all, in response to the caller's concerns, I'm not familiar with the particular case to which he refers. But it's very important, obviously, that the trial court that certifies the class have a plan for how to manage the class in an effective way so that it doesn't proceed in all these different stages that can drag on for a long time. The trial -- and for that reason a courts of appeals and the Supreme Court defer greatly to the discretion of the trial courts in making these decisions about whether to certify classes or not. So I can tell you only that the trial judge, in this case, gave a great deal of thought to how he would manage a trial like this in order to go forward.

  • 10:52:54

    REHMJoe Sellers, he is co-lead counsel for the plaintiffs and head of the civil rights and employment practice group at Cohen Milstein. And you're listening to "The Diane Rehm Show." A number of times during this conversation, we've heard about the Ninth Circuit. What is it about the Ninth Circuit, Jonathan Cohn, that makes this particular case rather questionable?

  • 10:53:31

    COHNIt's not the Ninth Circuit in specific. This was a contentious decision. The Ninth Circuit took it en banc. Eleven judges in that court heard it, and it was divisive. Six judges supported the certification, five did not. It was very close. But more generally, the Ninth Circuit, over the past 10 or 20 years, has had a number of judges who, let's say, are not simpatico with the Supreme Court. They decide cases which are not consistent with Supreme Court precedent. As a result of which the Supreme Court has to grant cert and reverse a number of times. That's happened a lot in recent years, and my suspicion is it's going to happen here as well.

  • 10:54:10

    REHMAnd, of course, this is the first time in history three women are sitting on the court. Do you think that that fact could make a difference, Joe?

  • 10:54:23

    SELLERSWell, I'm very impressed there are three women sitting on the Supreme Court, but I wouldn't begin to presume from that that I have any idea how they will rule in this case. I think they -- the fact that they're women on the court will ensure that there will be a healthy appreciation of what it's like to have, perhaps, been the subject of differences in treatment in earlier years because you're a woman. But I couldn't presume from that that they will affirm or reverse in this case.

  • 10:54:51

    REHMAll right, last quick question from Newton, N.C. Good morning, David. You're on the air.

  • 10:54:58

    DAVIDGood morning, Diane. Love your show. I actually listen to it everyday.

  • 10:55:01

    REHMThank you.

  • 10:55:02

    DAVIDI believe that this is nothing more than another frivolous lawsuit against another business in our country. The only winners here is going to be the lawyers, and the losers are going to be Wal-Mart. Now, I'm not an advocate for Wal-Mart because I can't find nothing American-made in that store. However, as far as being in a free society -- which is the so-called America -- you know, we've got the courts that have no business telling a business who they can give a raise to and who they can't.

  • 10:55:32

    REHMWhat do you think, Joe?

  • 10:55:34

    SELLERSWell, first of all, just to reassure the caller, the lawyers in this case have been working for nearly 10 years and haven't been paid at all. So I would not characterize the lawyers as the winners in this case. As to what...

  • 10:55:47

    REHMBut if the plaintiff loses -- if Wal-Mart loses and does have to pay these employees, the lawyers would take a portion of that.

  • 10:56:00

    SELLERSThe lawyers would be eligible to receive some compensation that would have to be approved by the court, and I couldn't begin to presume what that would be. But I would hope that if the lawyers bring a case like this for 10 years, that they're entitled to some kind of compensation if they're successful. But let me speak to the caller's concern about courts directing business practices. There is no evidence in this case that the trial court was intending to direct, to micromanage this company. What it was trying to address was evidence of discrimination that is unlawful and hold the company accountable for it.

  • 10:56:34

    REHMJoe Sellers, he is co-lead counsel for the plaintiffs. Jonathan Cohn, an attorney at Sidney (sic) -- Sidley Austin. And Alexandra LaHav, she is professor of law at the University of Connecticut. When can we expect a decision in this case?

  • 10:56:54

    SELLERSI think by the end of the court's term, which is the end of June.

  • 10:56:58

    REHMThank you all so much. Thanks for listening. I'm Diane Rehm.

  • 10:57:03

    ANNOUNCER"The Diane Rehm Show" is produced by Sandra Pinkard, Nancy Robertson, Susan Nabors, Denise Couture and Monique Nazareth. The engineer is Erin Stamper. Dorie Anisman answers the phones. Visit drshow.org for audio archives, transcripts, podcasts and CD sales. Call 202-885-1200 for more information. Our e-mail address is drshow@wamu.org, and we're on Facebook and Twitter. This program comes to you from American University in Washington. This is NPR.

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