Having lost at the Ninth Circuit, Wal-Mart vows to take the decision certifying a massive class action over alleged sexual discrimination to the Supreme Court. Good luck, says Jeffrey Jacobson, an expert on defending class actions with Debevoise & Plimpton in New York.
A better analogy might be the lawsuit Wal-Mart and other retailers pursued against Visa and Mastercard for allegedly monopolizing the credit-card business. The card issuers settled that one for $3 billion in 2003 after a federal judge in New York certified an arguably more gargantuan class representing every merchant from Wal-Mart to the corner store. The Second Circuit Court of Appeals upheld the certification even though the card issuers argued that the expert for the plaintiffs hadn't even proposed a way to calculate how the merchants had been ripped off.
"The Supreme Court has had chances before to review mega classes, and it hasn’t done it," said Jacobson.
In the Dukes case, Wal-Mart is accused of fostering a corporate culture in which managers promote and pay men more than women. Plaintiff lawyers were careful to structure the case as one seeking injunctive relief, or a court order changing the practices they object to. That's crucial to maintaining the class, because if financial compensation dominates the case, Wal-Mart would be entitled to thousands of mini-trials to determine how much each plaintiff is entitled to receive. The dissenters in the Ninth decision, including Chief Judge Alex Kozinski, said the majority played fast and loose with these distinctions, approving a hopelessly large class that stripped Wal-Mart of its right to defend itself.
That may be true, said Jacobson. Only three securities class actions have gone to trial in the past decade, Jacobson said, because "once a class is certified the damages at stake are usually more than a public company is willing to risk.”
“For the Supreme Court to take it now, four justices would have to agree with the dissent that this class is too big to proceed," Jacobson said. But the converse is a little difficult for even conservative justices to get their heads around: Can a company like Wal-Mart be too big to sue over widespread practices like employment discrimination?
Wal-Mart would have a better shot if the Solicitor General supported bringing the case before the Supreme Court. But with its strong support from unions, the Obama administration is unlikely to throw a helping hand out to staunchly non-union Wal-Mart. The best the retailer can hope for is another appealable ruling from the trial court, perhaps on whether former employees can join the class. In the meantime, Wal-Mart's lawyers better refresh their memories about the Visa settlement negotiations.