The New York Times
From the Web, June
Wal-Mart Stores asked the Supreme
Court to make a million or more of the company’s current and former female
employees fend for themselves in individual lawsuits instead of seeking billions
of dollars for discrimination in a class-action lawsuit. Wal-Mart got what
it wanted from the court — unanimous dismissal of the suit as the plaintiffs
presented it — and more from the five conservative justices, who went further in
restricting class actions in general.
The majority opinion by Justice Antonin Scalia will make it substantially more
difficult for class-action suits in all manner of cases to move forward.
For 45 years, since Congress approved the criteria for class actions, the
threshold for certification of a class has been low, with good reason because
certification is merely the first step in a suit. Members of a potential
class have had to show that they were numerous, had questions of law or fact in
common and had representatives with typical claims who would protect the
interests of the class.
Justice Scalia significantly raised the threshold of certification, writing that
there must be “glue” holding together the claims of a would-be class. Now,
without saying what the actual standard of proof is, the majority requires that
potential members of a class show that they are likely to prevail at trial when
they seek initial certification. In this change, the court has made
fact-finding a major part of certification, increasing the cost and the stakes
of starting a class action.
Justice Ruth Bader Ginsburg, writing for the four moderates on the court,
dissented from Justice Scalia’s broader analysis and sought a much narrower
holding. The minority found that the plaintiffs had cleared the bar for
certification with evidence suggesting that “gender bias suffused Wal-Mart’s
company culture” but would have sent the case back to the trial court to
consider whether the class action should have gone forward in a different form.
The plaintiffs in this case sought three forms of relief: to stop
Wal-Mart’s employment practices that allegedly discriminated against women, to
have the company adopt equitable ones and to recover wages lost as a result of
unfair practices. The justices have all but ended this mix of remedies
under one part of the main class-action rule — even though Congress and most
courts of appeals have allowed it for decades.
Without a class action, it will be very difficult for most of the women
potentially affected to pursue individual claims. The average wages lost
per year for a member of the rejected Wal-Mart class are around $1,100 — too
little to give lawyers an incentive to represent such an individual. For
the plaintiffs, for groups seeking back pay in class actions, and for class
actions in general, it was a bad day in court.