Wal-Mart's SC Appeal Far from Appealing

The NY Times is reporting that the US Supreme Court will hear Wal-Mart's appeal of the largest employment discrimination suit in the country's history: "The Supreme Court on Monday agreed to hear an appeal in the biggest employment discrimination case in the nation’s history, one claiming that Wal-Mart discriminated against hundreds of thousands of women in pay and promotion. The lawsuit seeks back pay that could amount to billions of dollars."

This isn't really about the merits of whether Big Wally discriminated against women-no, it's only about the Benjamin's: "The question before the court is not whether there was discrimination but rather whether the claims by the individual employees may be combined as a class action. The court’s decision on that issue will almost certainly affect all sorts of class-action suits, including ones asserting antitrust, securities and product liability, as well as other claims."

Obviously, the existence of a large class would mean that the Walmonster could be liable for billions-but, in a statement, the company raises their exposure to a level of high legal principle: "We are pleased that the Supreme Court has granted review in this important case,” Wal-Mart said in a brief statement. “The current confusion in class-action law is harmful for everyone — employers, employees, businesses of all types and sizes and the civil justice system. These are exceedingly important issues that reach far beyond this particular case.”

It's always good when a malefactor of great wealth stands up for interests that go beyond narrow selfishness-but if you can separate this from the company's liability you are certainly good at legerdemain. What makes this even more interesting at this juncture is the fact that the NYC Council is preparing to hold a hearing on the costs and benefits of Wal-Mart's coming to New York City-and we anticipate that numerous women's groups will join the anti-Wal-Mart coalition at city hall next week.

What is fascinating to us-and one reason we didn't go to law school-is how Wal-Mart's lawyers are able to argue with a straight face that their female employees can't qualify as a class: "In their brief urging the justices to deny review, the plaintiffs had said Wal-Mart’s objection to class-action treatment boiled down to the enormous size of the class. “Petitioner returns repeatedly to the refrain that the certified class is very large, a fact that is indisputably true but legally irrelevant,” the brief said. “The class is large because Wal-Mart is the nation’s largest employer and manages its operations and employment practices in a highly uniform and centralized manner.” Wal-Mart, which says its policies expressly bar discrimination and promote diversity, said the plaintiffs, who worked in 3,400 different stores in 170 job classifications, cannot possibly have enough in common to make class-action treatment appropriate."

A US Court of Appeals had ruled that there were more similarities than differences: "In April, an 11-member panel of the United States Court of Appeals for the Ninth Circuit, in San Francisco, ruled by a 6-to-5 vote that the class action could go forward. Judge Michael Daly Hawkins, writing for the majority, said the company’s policies and treatment of women were similar enough that a single lawsuit was both efficient and appropriate. He added that the six women who represent the class, four of whom had left Wal-Mart, had claims typical of the other plaintiffs."

But for Wal-Mart, obviously size matters-and the potential size of the liability above all else. It is interesting to point out, that New SC Justice Sotomayor had certified an even larger class: "The plaintiffs responded by noting that Justice Sonia Sotomayor had voted to certify an even larger class action in an antitrust case involving eight million merchants when she was a judge on the United States Court of Appeals for the Second Circuit, in New York. Wal-Mart was a plaintiff in that class action. Judge Sotomayor acknowledged that the very fact of class certification provided the plaintiffs with “leverage in settlement negotiations. While the sheer size of the class in this case may enhance this effect,” she added, “this alone cannot defeat an otherwise proper certification.”

For our part, we will simply add the grievances of woman to the laundry list of reasons why Wal-Mart is not good for New York. And this issue should add to the furor that is sure to take place next week.