Walmart wins

[ElNono]

I'm fairly sure most here heard about the SCOTUS ruling. If not: link

Thoughts?

[DMX7]

Predictable.

[Trainwreck2100]

lol dumb es, way to it up for all of us

[boutons_deux]

Walmart: To Big To Sue

"Justice Scalia ... would have been hugely unfair to Wal-Mart "

But discriminating against women is not unfair.

Once again, the Repug/VRWC-packed SCOTUS protects and enriches UCA to the detriment of Human-Americans. "l'etat, c'est Walmart"

Trainwreck, rapist apologist, blames the victims. "the s asked for it"

[TheProfessor]

Predictable.

Unfortunately, yes. I don't understand the reasoning - just because you have a nationwide practice means you can preclude a class action suit? Just seems like an additional barrier to class action lawsuits on an issue that trial courts could already handle, making it much more difficult to hold companies responsible for their actions.

[ChuckD]

Ridiculous. The class was too wide? WTF? If they're discriminating against women, all you should need to join the suit is a vagina.

[ElNono]

I didn't follow the reasoning either. You have to show proof that there's an actual stated policy to discriminate in order to class action for discrimination? That part made no sense to me. I did expect this verdict though, seeing how it would set a major precedent for all Corps in general. I can only imagine the political pressure that was applied for this case.

[Wild Cobra]

Predictable.

This alone in the article makes a clear reason:

In the Wal-Mart case, the court wrote that the plaintiffs had not demonstrated that Wal-Mart had any nationwide policies or practices that discriminated against women.

[Wild Cobra]

I didn't follow the reasoning either. You have to show proof that there's an actual stated policy to discriminate in order to class action for discrimination? That part made no sense to me. I did expect this verdict though, seeing how it would set a major precedent for all Corps in general. I can only imagine the political pressure that was applied for this case.

I didn't read the whole thing, but the line I quoted alone makes perfect sense to me. Lets assume that only a regional manager sets policies that would affect women. I could see class action suit for that region. Women being a part of it from that region. However, if the policies of that region didn't have any effect of women in another region, how can they sue also?

The prosecution didn't make it's case for a nationwide suit.

[ElNono]

I didn't read the whole thing, but the line I quoted alone makes perfect sense to me. Lets assume that only a regional manager sets policies that would affect women. I could see class action suit for that region. Women being a part of it from that region. However, if the policies of that region didn't have any effect of women in another region, how can they sue also?

The prosecution didn't make it's case for a nationwide suit.

I don't like to ASSume in this case. I appreciate hearing from people like TheProfessor (and I wish FWD would weigh in too) that seem to be more familiar with the legalese.

The statistics used to build the discrimination case were nationwide, AFAIK. I also don't understand why there has to be a stated policy. Discrimination can be subtle, but noticeable over time. It can also be non-intentional. It's up to the prosecutors to prove their case. Notice that the SCOTUS didn't rule on the discrimination argument per se, but on whether class action applied.

[CuckingFunt]

I didn't read the whole thing, but the line I quoted alone makes perfect sense to me. Lets assume that only a regional manager sets policies that would affect women. I could see class action suit for that region. Women being a part of it from that region. However, if the policies of that region didn't have any effect of women in another region, how can they sue also?

The prosecution didn't make it's case for a nationwide suit.

I think the part ElNono is questioning is tying the viability of such cases to a corporation's stated policies. The likelihood of Wal-Mart, or any other major corporation, having a specifically discriminatory policy on the books is pretty slim, but that alone does not rule out the possibility of discriminatory practices taking place on a national level.

[ElNono]

I think the part ElNono is questioning is tying the viability of such cases to a corporation's stated policies. The likelihood of Wal-Mart, or any other major corporation, having a specifically discriminatory policy on the books is pretty slim, but that alone does not rule out the possibility of discriminatory practices taking place on a national level.

Exactly. It's quite possible that Walmart might not have intentionally discriminated, but that's for the prosecutors to prove. There's obviously less incentive now to go after those cases if you have to separate each individual case.

[boutons_deux]

"practices that discriminated against women"

the lack of women in upper ranks and the difference in pay for same job is "practices".

But wal-mart is no different from all companies. Wimmen get paid 25-30% less than men for the same job. There is huge economic reason why ERA amendment failed. UCA killed it.

[CuckingFunt]

Exactly. It's quite possible that Walmart might not have intentionally discriminated, but that's for the prosecutors to prove. There's obviously less incentive now to go after those cases if you have to separate each individual case.

I think it creates a problem that goes beyond even incentive, really, which is the part I find most troubling.

The aspect not taken into consideration by the ruling is that even if individuals or small groups go after a corporation at the regional level, that corporation is almost certainly going to stick with its big scale corporate lawyers. The benefit of class action suits is the fact they provide a sense of solidarity/strength in matters that would otherwise seem insurmountable.

In keeping with the Wal-Mart case as an example, women raising charges of sexual discrimination historically fight an uphill battle not only legally, but also in terms of being labeled a difficult and/or hysterical employee and inviting further discrimination. The likely result of all of this, then, is that women who may otherwise come together through a class action will now be forced to take on a corporation on their own and will in many cases opt to just live with the discrimination.

[boutons_deux]

"just live with the discrimination"

yep, keep your head down, STFU, and try make it to next paycheck. 20M+ out there w/o jobs.

[boutons_deux]

good article on the general trend since the VRWC got organized/focused relentlessly post-Nixon, post-VN

http://www.washingtonpost.com/busine...washingtonpost

[FromWayDowntown]

I don't see the opinion as a death knell for discrimination claims, even where the discriminatory practices are subtle and not part of a coherent corporate policy.

Writing for the majority, Justice Scalia basically admits that the various members of the class may well have viable claims under le VII. As others have said, his opinion boils down to the fact that there hasn't been a single, identified basis for the discrimination -- the claimants themselves have alleged that the discriminatory practices are the work of managers at the store or regional level; I see their complaint as an effort to bootstrap themselves into a class posture by claiming that Wal-Mart's allowance of that sort of idiosyncratic discretion is basically an indifference to the discriminatory practices and a tacit approval of them.

According to Justice Scalia, this doesn't mean that there hasn't been discrimination, it just means that the mechanism for remedying the consequences of that discrimination must be smaller actions. He reaches that conclusion, as I read it, by basically observing that the proof of discrimination as to one claimant will be different from the proof of discrimination as to another -- the berating of female employees by Bob, the manager of a store in southern Indiana is not the same as the refusal by George, the manager of a store in eastern Washington, to promote women into management positions. In order to support class certification, Justice Scalia says, the conduct of Bob and George must be the same so that a jury would need to hear only testimony that all Wal-Mart managers do (or don't do) some particular thing. There would likely be a basis for a mass action by all females who worked for Bob or by all females who worked for George, but since the jury would have to make two different determinations in an action naming Bob and George together, it would be inappropriate to allow a single action against them.

The statistics, it seems to me, go largely to the effect of the practices, but they don't define the practices themselves or show that each practice is, itself, discriminatory. In almost any civil proceeding, the claimant is required to prove (in some form or fashion) that the defendant did something in particular to cause harm; the claimant must also prove that it suffered harm. Here, I think Justice Scalia is focused on the former and the statistical proof tends to go more to the latter. As I read the opinion, Justice Scalia concludes that even if the injuries are all the same, the conduct that caused them is not -- and the inquiry into whether the particular conduct was discriminatory or not requires consideration of the conduct of each decision-maker whose conduct is alleged to have harmed the claimants.

In the small context -- described above -- of two managers who are both discriminators (but in different ways) the problem may seem insignificant; cast against several thousand managers who all may have discriminated but in different ways, the feasibility of a single action becomes untenable, at least according to Justice Scalia (and Chief Justice Roberts, Justice Thomas, Justice Kennedy, and Justice Alito).

This is largely a procedural disposition, at least in that sense. From a substantive standpoint, I suppose that it imposes an even greater burden of proof upon those who seek class certification, but I'm not sure that there's much that's novel about that. The more that litigants seek to avail themselves of class actions, the more the courts and legislatures seem to retrench in analyzing the propriety of the class action mechanism. I'm frankly cool with that, mostly because the class action mechanism tends to be a grossly misused procedure in most of its applications, at least insofar as it tends to afford claimants with nominal relief (coupons with negligible value or de minimis monetary recoveries) while creating windfalls for the lawyers who prosecute them.

I do think that the dissent's argument that the majority has gerrymandered its conclusion by conflating the commonality requirement and the predominance requirement is a solid point and, frankly, in terms of the future of the class action as a general concept, that analytical choice may prove to be the most lasting consequence of this decision.

[MannyIsGod]

The reasoning is so bizarre to me. Its almost an application of TBTF policy to the judicial system. Want an advantage? Make the practice nation wide and systematic.

[MannyIsGod]

I don't see the opinion as a death knell for discrimination claims, even where the discriminatory practices are subtle and not part of a coherent corporate policy.

Writing for the majority, Justice Scalia basically admits that the various members of the class may well have viable claims under le VII. As others have said, his opinion boils down to the fact that there hasn't been a single, identified basis for the discrimination -- the claimants themselves have alleged that the discriminatory practices are the work of managers at the store or regional level; I see their complaint as an effort to bootstrap themselves into a class posture by claiming that Wal-Mart's allowance of that sort of idiosyncratic discretion is basically an indifference to the discriminatory practices and a tacit approval of them.

According to Justice Scalia, this doesn't mean that there hasn't been discrimination, it just means that the mechanism for remedying the consequences of that discrimination must be smaller actions. He reaches that conclusion, as I read it, by basically observing that the proof of discrimination as to one claimant will be different from the proof of discrimination as to another -- the berating of female employees by Bob, the manager of a store in southern Indiana is not the same as the refusal by George, the manager of a store in eastern Washington, to promote women into management positions. In order to support class certification, Justice Scalia says, the conduct of Bob and George must be the same so that a jury would need to hear only testimony that all Wal-Mart managers do (or don't do) some particular thing. There would likely be a basis for a mass action by all females who worked for Bob or by all females who worked for George, but since the jury would have to make two different determinations in an action naming Bob and George together, it would be inappropriate to allow a single action against them. In the small context of two managers who are both discriminators (but in different ways) the problem may seem insignificant; cast against several thousand managers who all may have discriminated but in different ways, the feasibility of a single action becomes untenable, at least according to Justice Scalia (and Chief Justice Roberts, Justice Thomas, Justice Kennedy, and Justice Alito).

This is largely a procedural disposition, at least in that sense. From a substantive standpoint, I suppose that it imposes an even greater burden of proof upon those who seek class certification, but I'm not sure that there's much that's novel about that. The more that litigants seek to avail themselves of class actions, the more the courts and legislatures seem to retrench in analyzing the propriety of the class action mechanism. I'm frankly cool with that, mostly because the class action mechanism tends to be a grossly misused procedure in most of its applications, at least insofar as it tends to afford claimants with nominal relief (coupons with negligible value or de minimis monetary recoveries) while creating windfalls for the lawyers who prosecute them.

I do think that the dissent's argument that the majority has gerrymandered its conclusion by conflating the commonality requirement and the predominance requirement is a solid point and, frankly, in terms of the future of the class action as a general concept, that analytical choice may prove to be the most lasting consequence of this decision.

Do you think there is an effect on judicial/legal resources with this decision? I guess my question is that if each defendant now has to go it alone what does it do to the availability of courts and quality representation?

[CosmicCowboy]

Do you think there is an effect on judicial/legal resources with this decision? I guess my question is that if each defendant now has to go it alone what does it do to the availability of courts and quality representation?

As I see it, even high priced corporate attorneys can't change the facts of a case if discrimination actually exists at a localized level. Using FWD's example if Bob in Indiana is systematically berating female employees then the females in Bobs store can sue as a class for Bobs actions and would still be able to get competent representation.

If Bob is not berating all female employees but just one or a few then it shouldn't qualify as a class action to start with.

[FromWayDowntown]

Do you think there is an effect on judicial/legal resources with this decision? I guess my question is that if each defendant now has to go it alone what does it do to the availability of courts and quality representation?

Absolutely, this threatens a strain on judicial resources -- assuming that each of the more than 1,000,000 claimants decides to pursue an individual action. That strain is mitigated, to some extent at least, by the dispersal of those claims across the country; and in smaller contexts, the claims of those affected by particular managers can be aggregated into single causes that might streamline the process to an extent. But I also don't think that the threat of consumed judicial resources should support abuse of the class action mechanism. I think there's certainly virtue in defending the need to ensure judicial economy, but I would dispute that it should ever become the overriding basis for determining the propriety of a class action.

And, frankly, if that comes to pass, I think it will place a dramatic strain on Wal-Mart, ironically. It will, after all, have to retain counsel in a wide array of jurisdictions to defend these sorts of actions and will incur the costs of the defense in those lawsuits (along with the potential judgments the claimants might be able to obtain). I suppose there's a cost-benefit analysis for Wal-Mart -- it is undoubtedly betting that by dispersing the class, many of the claimants will drop their allegations, that others will be unable to prove discrimination, and that it can settle for a reasonable amount iwth those who might be able to make that showing. But it also runs the risk of being hit hard in a particularly disfavorable jurisdiction.

This isn't a criminal proceeding in any sense, so the concern for the quality of representation is -- to me -- relatively insignificant.

[CuckingFunt]

I don't see the opinion as a death knell for discrimination claims, even where the discriminatory practices are subtle and not part of a coherent corporate policy.

Writing for the majority, Justice Scalia basically admits that the various members of the class may well have viable claims under le VII. As others have said, his opinion boils down to the fact that there hasn't been a single, identified basis for the discrimination -- the claimants themselves have alleged that the discriminatory practices are the work of managers at the store or regional level; I see their complaint as an effort to bootstrap themselves into a class posture by claiming that Wal-Mart's allowance of that sort of idiosyncratic discretion is basically an indifference to the discriminatory practices and a tacit approval of them.

According to Justice Scalia, this doesn't mean that there hasn't been discrimination, it just means that the mechanism for remedying the consequences of that discrimination must be smaller actions. He reaches that conclusion, as I read it, by basically observing that the proof of discrimination as to one claimant will be different from the proof of discrimination as to another -- the berating of female employees by Bob, the manager of a store in southern Indiana is not the same as the refusal by George, the manager of a store in eastern Washington, to promote women into management positions. In order to support class certification, Justice Scalia says, the conduct of Bob and George must be the same so that a jury would need to hear only testimony that all Wal-Mart managers do (or don't do) some particular thing. There would likely be a basis for a mass action by all females who worked for Bob or by all females who worked for George, but since the jury would have to make two different determinations in an action naming Bob and George together, it would be inappropriate to allow a single action against them.

The statistics, it seems to me, go largely to the effect of the practices, but they don't define the practices themselves or show that each practice is, itself, discriminatory. In almost any civil proceeding, the claimant is required to prove (in some form or fashion) that the defendant did something in particular to cause harm; the claimant must also prove that it suffered harm. Here, I think Justice Scalia is focused on the former and the statistical proof tends to go more to the latter. As I read the opinion, Justice Scalia concludes that even if the injuries are all the same, the conduct that caused them is not -- and the inquiry into whether the particular conduct was discriminatory or not requires consideration of the conduct of each decision-maker whose conduct is alleged to have harmed the claimants.

In the small context -- described above -- of two managers who are both discriminators (but in different ways) the problem may seem insignificant; cast against several thousand managers who all may have discriminated but in different ways, the feasibility of a single action becomes untenable, at least according to Justice Scalia (and Chief Justice Roberts, Justice Thomas, Justice Kennedy, and Justice Alito).

This is largely a procedural disposition, at least in that sense. From a substantive standpoint, I suppose that it imposes an even greater burden of proof upon those who seek class certification, but I'm not sure that there's much that's novel about that. The more that litigants seek to avail themselves of class actions, the more the courts and legislatures seem to retrench in analyzing the propriety of the class action mechanism. I'm frankly cool with that, mostly because the class action mechanism tends to be a grossly misused procedure in most of its applications, at least insofar as it tends to afford claimants with nominal relief (coupons with negligible value or de minimis monetary recoveries) while creating windfalls for the lawyers who prosecute them.

I do think that the dissent's argument that the majority has gerrymandered its conclusion by conflating the commonality requirement and the predominance requirement is a solid point and, frankly, in terms of the future of the class action as a general concept, that analytical choice may prove to be the most lasting consequence of this decision.

And, frankly, I get that. I don't necessarily agree with it, but I can at least follow the logic there.

My tripping point remains the verbiage that specifically ties the class action mechanism to issues of stated policy. In 2011, one would assume that all instances of discrimination, especially within a corporation of Wal-Mart's size, would be the result of someone(s) acting outside of company policy. Using policy to determine the viability of a class action, then, strikes me as both arbitrary and ineffectual.

[boutons_deux]

Wal-Mart Decision a Victory for Women

http://www.nationalreview.com/corner...llyanne-conway

[CuckingFunt]

The decision is also important to the economy and the 2.1 million men and women who currently work for Wal-Mart. Wal-Mart is the largest overall employer in the U.S., and the biggest employer in 25 states. Wal-Mart employment represents a “good deal” for employees, especially those with lower levels of formal education and statistically-lower earning capacities over time. The average wage for hourly employees is $11.75, $4.50 over the current federal minimum wage. Employees are eligible for a variety of extra benefits including bonuses, health-care insurance for both full-time and part-time employees, 401(k) fund contributions, associate stock-purchase programs, profit-sharing plans, and a 10 percent discount on merchandise. Wal-Mart has received national diversity awards.

Hopeful workers, male and female alike, flock to new Wal-Mart stores in search of employment. In 2007, a new Cleveland store received 6,000 applications for 300 openings. In Chicago in 2006 one store received 25,000 applications for just 325 positions. Wal-Mart managers say the typical response to a new store involves collecting between 3,000 and 4,000 applications for somewhere between 300 and 450 jobs, or roughly ten applicants for everyone one available position.

What a mind of revisionism that is.

[ElNono]

I don't see the opinion as a death knell for discrimination claims, even where the discriminatory practices are subtle and not part of a coherent corporate policy.

Writing for the majority, Justice Scalia basically admits that the various members of the class may well have viable claims under le VII. As others have said, his opinion boils down to the fact that there hasn't been a single, identified basis for the discrimination -- the claimants themselves have alleged that the discriminatory practices are the work of managers at the store or regional level; I see their complaint as an effort to bootstrap themselves into a class posture by claiming that Wal-Mart's allowance of that sort of idiosyncratic discretion is basically an indifference to the discriminatory practices and a tacit approval of them.

According to Justice Scalia, this doesn't mean that there hasn't been discrimination, it just means that the mechanism for remedying the consequences of that discrimination must be smaller actions. He reaches that conclusion, as I read it, by basically observing that the proof of discrimination as to one claimant will be different from the proof of discrimination as to another -- the berating of female employees by Bob, the manager of a store in southern Indiana is not the same as the refusal by George, the manager of a store in eastern Washington, to promote women into management positions. In order to support class certification, Justice Scalia says, the conduct of Bob and George must be the same so that a jury would need to hear only testimony that all Wal-Mart managers do (or don't do) some particular thing. There would likely be a basis for a mass action by all females who worked for Bob or by all females who worked for George, but since the jury would have to make two different determinations in an action naming Bob and George together, it would be inappropriate to allow a single action against them.

The statistics, it seems to me, go largely to the effect of the practices, but they don't define the practices themselves or show that each practice is, itself, discriminatory. In almost any civil proceeding, the claimant is required to prove (in some form or fashion) that the defendant did something in particular to cause harm; the claimant must also prove that it suffered harm. Here, I think Justice Scalia is focused on the former and the statistical proof tends to go more to the latter. As I read the opinion, Justice Scalia concludes that even if the injuries are all the same, the conduct that caused them is not -- and the inquiry into whether the particular conduct was discriminatory or not requires consideration of the conduct of each decision-maker whose conduct is alleged to have harmed the claimants.

In the small context -- described above -- of two managers who are both discriminators (but in different ways) the problem may seem insignificant; cast against several thousand managers who all may have discriminated but in different ways, the feasibility of a single action becomes untenable, at least according to Justice Scalia (and Chief Justice Roberts, Justice Thomas, Justice Kennedy, and Justice Alito).

This is largely a procedural disposition, at least in that sense. From a substantive standpoint, I suppose that it imposes an even greater burden of proof upon those who seek class certification, but I'm not sure that there's much that's novel about that. The more that litigants seek to avail themselves of class actions, the more the courts and legislatures seem to retrench in analyzing the propriety of the class action mechanism. I'm frankly cool with that, mostly because the class action mechanism tends to be a grossly misused procedure in most of its applications, at least insofar as it tends to afford claimants with nominal relief (coupons with negligible value or de minimis monetary recoveries) while creating windfalls for the lawyers who prosecute them.

I do think that the dissent's argument that the majority has gerrymandered its conclusion by conflating the commonality requirement and the predominance requirement is a solid point and, frankly, in terms of the future of the class action as a general concept, that analytical choice may prove to be the most lasting consequence of this decision.

Thanks for weighing in. My concern is that by not specifying where the line is drawn for acceptance of class action status, this makes the waters more muddy. Taking from your example, Bob and George undeniably are representing the company in their capacity as managers. I understand the contention that since Bob and George might make up 0.1% of all Walmart managers, then attempting to pile up all Walmart women would seem unfair, or flat out wrong. The problem I see however is that there was no specification as to where the tipping point is. If 99% of managers discriminate (in the case where there's no stated corporate policy), does that mean that class action would not apply because there's a 1% that doesn't fit in the class? Would defense strategy against class action now shift into looking for that one off case that might not apply to shut down the entire class action status? I suspect that might be the case.

I do agree that class action is abused and that the returns are generally meager for the actual victims. That said, I do think they still effectively can serve as a deterrent (I'm fairly confident that if Walmart would have lost this case, their internal policies would have been adjusted to screen potential problem managers better), and to provide a sense of justice for the collective.