Welcome to Walmart: The Biggest Case of the Term

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On Tuesday morning, the United States Supreme Court will hear argument in Wal-Mart v. Dukes, an already-epic battle between the world's largest corporation and perhaps as many as one million current and former employees, all of them female, who as potential plaintiffs claim the giant retailer engaged in an unlawful pattern and practice of gender discrimination. It is easily one of the biggest cases of the Court's present term and, by many accounts, the biggest class-action discrimination case ever fought. Depending upon how extensively the justices rule, and no matter which side prevails, the Dukes case could dramatically alter the balance of power in civil cases between corporate defendants and the plaintiffs' bar.

The oral argument this week comes against the backdrop of a tiny boomlet of news stories reminding us that the conservative Court from time to time actually does side with employees over employers and against the legal interests of corporate America. In January, the Court ruled in favor of an employee who was fired after his fiancee' brought a sex discrimination case against their company. And just last week the Court twice ruled against employers; the justices helped an Army reservist who said he was discriminated against because of his military obligations and backed an employee who complained that his company's bosses put the timeclocks in the wrong place at work.

Whether they constitute a trend or not (and I say not), these cases represent mere footnotes in the annals of employment law compared with the potential impact of Dukes. Writing in the Harvard Law and Policy Review, professor Suzette M. Malveaux explained well last week in accessible language precisely what's at stake:

The potential impact of the case stems not so much from the size of the Dukes class as from how the case will influence the very survival of certain types of class actions. At issue is whether it will become more difficult for plaintiffs who seek monetary relief for systemic misconduct to meet the class action criteria. This is important because for many employees and others, a class action is their only meaningful access to the courts. Moreover, class actions are important to the civil justice system because of the substantial time and cost savings they provide the courts and parties. The Dukes case has the potential to redefine the terms on which this critical procedural device is available.

No matter what the justices say Tuesday, and no matter how they eventually rule, Wal-Mart already has largely succeeded in blunting the force of the allegations against it. The case will be 11 years old when it is decided by the Supreme Court and yet it is nowhere near trial, much less a plaintiffs' verdict that would be sustainable on appeal. This is so despite massive pre-trial discovery on the class-action issue alone, an exemplar of scorched-earth civil litigation which already has generated, by one litigant's count, "over 200 depositions" and the "production of more than a million pages," as well as "electronic personnel data."

At that rate, it could easily take another 11 years, or longer, to finally resolve this case. Betty Dukes, the Wal-Mart "greeter" who became the lead plaintiff in the case, was 54 when she first filed suit against the company. She's now 65. She'll be lucky if she gets her day in court, and a jury to hear her claims on the merits, before she's 70, and that's only if the justices allow the plaintiffs to proceed with their claims. This breathtaking pre-trial delay has occurred despite a series of rulings, from every court that has considered the case, acknowledging that there is a legally-cognizable class of plaintiffs here, a huge one, the members of which have at least a justiciable beef against Wal-Mart.

Amidst an intense public relations campaign, Wal-Mart says that the 9th U.S. Circuit Court of Appeals, and the trial judge before that, got it all wrong; that the class of potential plaintiffs is simply too big to band together against it under Rule 23 of the Federal Rules of Civil Procedure. From Wal-Mart's brief:

The class members-- potentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the country-- assert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses. The named plaintiffs' claims cannot conceivably be typical of the claims of the strangers they seek to represent. These intractable problems are compounded by a virtually boundless class definition that produces an across-the-board class pervaded by conflicts among its members. This kaleidoscope of claims, defenses, issues, locales, events, and individuals makes it impossible for the named plaintiffs to be adequate representatives of the absent class members.

The plaintiffs say this is nonsense. From their brief:

The district court made extensive findings to support its conclusion that the class satisfied the typicality and adequacy of representation requirements. Wal-Mart presents no legal argument, but instead asks the Court to revisit factual determinations made below. Wal-Mart would eliminate the 'pattern or practice' method of proof, requiring instead that systemic discrimination cases be litigated for both liability and remedies, individual-by-individual and store-by-store. Plaintiffs would be required to prove that 'the motive for every single discretionary pay and promotion decision affecting every single class member was discriminatory.

I counted 27 amici briefs, which means that Wal-Mart v. Dukes has become a national proxy fight between Big Business and the trial lawyers over the future of class-action litigation in America. My heart may be with Dukes but my money is on Wal-Mart. Despite its recent rulings, the Court's majority is still stridently pro-business (and anti-trial attorney). Add to that mix the justices' chronicled zeal in rejecting 9th Circuit decisions (like the one here) and you've got yourself the makings of a ruling for corporations that will make the Court's landmark campaign finance ruling, Citizens United, seem like a trifle to workers all over the country.

Image credit: Joshua Lott / Reuters

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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