A Class Action Lawsuit Is One in Which a Group of People with the Same Or Similar Injuries

Legal Communication – Nicola Sarjeant

Class Actions - Discrimination

 Have you heard of the American chain, Wal-Mart? What do you know about it?  Do you like shopping at superstores like Wal-Mart or E-Mart? Why/why not?  What do you think the working conditions are like at superstores?  Do you think men and women are treated equally at superstores? Why/why not?  Would you like to work at a superstore? Why/why not?  What is a “class action” lawsuit? If you don’t know, can you guess?

Vocabulary - matching

1. Mr. Smythe is alleged to have been at a. (as a judge) to rule that a plaintiff’s lawsuit is the centre of an international drug ring. to be terminated 2. Judge Davis upheld the county court's b. a person or thing which has the same purpose decision. as another one in a different place or 3. The report was based on anecdotal organization evidence, not facts. c. a state in which there is no equality and 4. Chrysler will idle the Jeep factory due to similarity, especially in a way that is not fair a parts shortage d. describes information that is not based on 5. There is a growing disparity between facts or careful study the rich and the poor. e. to be not working, not active, or do nothing 6. The Prime Minister is to meet his f. to prove that what someone said or did was European counterparts to discuss the right or true, after other people thought it was war against drugs. wrong 7. The judge dismissed the case due to lack g. to state that a decision which has already of evidence. been made, especially a legal one, is correct 8. The roads are clogged with holiday h. to state that someone has done something traffic. illegal or wrong without giving proof 9. The decision to include Morris in the i. to become blocked or filled so that movement team was completely vindicated when or activity is slowed or stopped, or to cause he scored three goals. this to happen

In a "class action" lawsuit, one or several named plaintiffs file suit on behalf of a "class" of plaintiffs. The class must consist of a group of individuals or companies that have suffered a common wrong. Usually, these kinds of cases are connected to some standard action on the part of a business, or some particular product defect or policy that was applied to all potential class members in a uniform manner. The plaintiff usually has to bring a motion1 (sometimes at the same time as filing the complaint) to have the class certified and allow the lawsuit to proceed. If the plaintiffs win, then the damages are divided among the plaintiffs according to a formula decided by the court.  What do you think are some advantages and disadvantages of class action lawsuits?

1 A formal request asking a judge to issue a ruling or order on a legal matter. Legal Communication – Nicola Sarjeant

Reading Questions

1. How many female employees may be included in the class action lawsuit? How much might they win in damages?

2. Why did the 9th Circuit Court uphold the lower court judge’s decision to allow the class action lawsuit to go to trial?

3. Was the Court unanimous?

4. Why does Wal-Mart argue that the case shouldn’t go to trial?

5. What are arguments in favour and against the women filing individual lawsuits against Wal- Mart?

6. Why was the Chamber of Commerce critical of the court’s decision?

Court says Wal-Mart must face bias trial Federal Appeals Court Rules Wal-Mart Must Face Class-Action Discrimination Lawsuit By David Kravets, Associated Press Writer | February 6, 2007

SAN FRANCISCO --A federal appeals court ruled Tuesday that Wal-Mart Stores Inc., the world's largest private employer, must face a class-action lawsuit alleging as many as 1.5 million former and current female employees were discriminated against in pay and promotions.

The lawsuit covers women who work or worked for the company from 1999 to the present. Betty Dukes, the lead plaintiff who claims she has suffered gender discrimination in terms of pay and promotion while working at a Wal-Mart in the Bay Area suburb of Pittsburg. "We are not falsely accusing Wal-Mart," said Dukes, who has worked at Wal-Mart for 13 years.

The ruling by the 9th U.S. Circuit Court of Appeals upholds a 2004 federal judge's decision to let the nation's largest class-action employment discrimination lawsuit go to trial, possibly exposing the Bentonville, Arkansas-based retailing powerhouse to billions of dollars in damages. "Plaintiff's expert opinions, factual evidence, statistical evidence and anecdotal evidence present significant proof of a corporate policy of discrimination and support plaintiff's contention that female employees nationwide were subjected to a common pattern and practice of discrimination," the court wrote in a 2-1 decision.

Wal-Mart said it would ask the court to rehear the case with the same three-judge panel or with 15 judges, a move likely to idle the case for months. Tuesday's ruling came 18 months after the case was argued.

"This is one step of what is going to be a long process," Wal-Mart attorney Theodore Boutrous Jr. said. "We are very optimistic of obtaining relief from this ruling." He said Wal-Mart's own review found no significant disparity in pay between men and women at 90 percent of its stores.

Wal-Mart, which currently employs 1.3 million workers, claimed that the conventional rules of class action suits should not apply in the case because its 3,400 stores, including Sam's Club warehouse Legal Communication – Nicola Sarjeant outlets, operate like independent businesses, and that the company did not have a policy of discriminating against women.

U.S. District Judge Martin Jenkins, the San Francisco trial court judge who said the case could proceed, had ruled that anecdotal evidence warranted a class-action trial. Wal-Mart took the case to the San Francisco-based appeals court.

Jenkins said if companywide gender discrimination is proven at trial, Wal-Mart could be forced to pay billions of dollars to women who earned less than their male counterparts. Jenkins rejected as "impractical" Wal-Mart's suggestion of having individual hearings for each plaintiff and he planned to use a statistical formula to compensate the women if they won.

Wal-Mart said the judge's scenario was an unprecedented denial of its rights and sought to dismiss the case. The company said women who allege discrimination could file lawsuits against individual stores. The women's lawyers said the idea was ridiculous, and would clog the federal judiciary.

"Although size of this class action is large, mere size does not render a case unmanageable," Judge Harry Pregerson wrote for the majority, which upheld Jenkins' decision in its entirety.

Robin Conrad, a vice president with the U.S. Chamber of Commerce, blasted the decision. If it stands, she said, it likely would force Wal-Mart to settle out of court than risk losing at trial. "It's basically extortionist," she said. "It's giving the company no option other than to settle a case of this magnitude."

Judge Andrew Kleinfeld wrote in a dissent that women could file individual lawsuits to safeguard Wal-Mart from paying those who don't deserve money, and would also ensure women get the compensation they deserve. The appellate court's decision, he wrote, "threatens the rights of women injured by sex discrimination. And it threatens Wal-Mart's rights."

Brad Seligman, one of the attorneys who represented the women suing Wal-Mart, said the decision would hurt the company's reputation. "No amount of PR by Wal-Mart is going to allow it to deal with its legacy of discrimination," Seligman said.

David Nassar, executive director of Wal-Mart Watch, a group critical of Wal-Mart policies, said the decision vindicates "victims of the company's illegal and immoral gender discrimination."

Timeline: June 2001: Betty Dukes and a handful of women sued Wal-Mart, charging it violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of an individual’s race, color, religion, sex or national origin. June 2004: US District Court certified the class, finding that common questions of fact and law existed. The class was certified for injunctive relief and punitive damages. February 2007: A three-judge panel of the federal Ninth Circuit Court affirmed the district court's class certification. February 2009: The federal Ninth Circuit court granted Wal-Mart's petition for rehearing en banc [in full court – with all the judges] on the class action certification. March 2009: The Ninth Circuit Court of Appeals hears Wal-Mart’s third attempt to decertify the class. Legal Communication – Nicola Sarjeant

Discussion Questions

1. What do you think of Wal-Mart’s arguments that the women should file individual lawsuits? 2. In his dissent, 9th Circuit Court Judge Andrew Kleinfeld said the case should not be certified as a class, since it “could enrich lawyers and undeserving plaintiffs while diluting the rewards to any who were actually injured by sex bias”. Do you think this is valid argument? Why/why not? 3. Judge Kleinfeld also wrote that "Plaintiffs' only evidence of sex discrimination is that around 2/3 of Wal- Mart employees are female, but only about 1/3 of its managers are female. Not everybody wants to be a Wal- Mart manager. Those women who want to be managers may find better opportunities elsewhere." On the other hand, Dukes said she sued the company because of neglect she and fellow female employees felt when openings for positions were advertised within her store. After working as a cashier for three years, Dukes said she advanced to a customer service representative post, a promotion that some male employees obtained even before their initial 90-day probationary periods had expired.2 Which argument do you think is stronger? Why? 4. Have a look at the timeline of this case (above). Although it has already taken eight years, from 2001-2009, the case is not much closer to going to trial, as Wal-Mart keeps appealing the certification of the class. (The 9th Circuit Court has not yet handed down its decision.) What does this tell you about some of the problems with the American legal system? 5. If this lawsuit eventually goes to a jury trial, what do you think the jury will decide? Why? 6. Do you think there is discrimination against women in the Korean workplace? Why/why not?  Is it OK? Why/why not? 7. In Korea, who generally makes the decision to promote someone or give someone a raise – a man or a woman?  What do you think they base their decision on (e.g. job performance, gender, whether they like that person…)? 8. Would it be possible to sue a Korean employer for discrimination? Why/why not? 9. Do you think it’s right for companies to have quotas for hiring women, or should people be hired based on their abilities, rather than their gender? 10. Korean men have to do military service for more than two years. As a result, they enter the work force later than women.  Is it fair to pay men more when they start work because of this? Why/why not?  Is it fair to place men in a higher position than women when they start? Why/why not? 11. Do you think women should also have to do military service? Why/why not? 12. Do you think there is a “glass ceiling” that prevents women from being promoted past a certain level? 13. What kind of things will you look for in a job (gender equality, good pay, interesting work, long vacations, opportunity to travel…)?

2 http://www.boston.com/business/articles/2007/02/06/court_oks_class_action_suit_against_wal_mart/