Q. I RECENTLY heard in the news that there was a class action against Wal-Mart and the US Supreme Court threw the case out. Many commentators are saying that because of this, “the class action is dead.” I have followed your previous discussions in this column about how class actions help employees and consumers who, because of the small size of their claim or the fear of retaliation, could not otherwise file a claim and assert their rights. What is going to happen to these types of claims now? Is there no remedy available?
A. The case referenced in the above query is the case of Dukes v. Wal-Mart Stores, Inc. It is a sexual discrimination lawsuit filed by Betty Dukes against Wal- Mart on behalf of female Wal- Mart employees nationwide. The lawsuit alleged that Wal-Mart discriminated against women in promotions, pay, and job assignments in violation of the law. The case is considered the largest civil rights class action in U.S. history, involving over 1.5 million female Wal-Mart employees throughout the country.
A class action lawsuit is not like a regular civil case filed in court. Its procedures are complex. First of all, the court must grant permission for the case to be tried as a class action (this is called the class certification process). This means that the court must determine primarily that all the potential class members asking for a remedy are, indeed, “similarly-situated.” The class certification requirements are very strict. For a case to become a class action, the following must be met:
1) That the class be so numerous that joinder of all members is impracticable. This means the employer’s illegal conduct must have affected enough employees that presenting before the court evidence of each employee’s separate factual and legal claims is not practical.
2) That the claims of the class representative and the class share common questions of law and fact. This means that both the class representative and the other employees must have substantially the same legal and factual claims, so that one court decision could resolve all or most of the legal and factual issues in the case.
3) That the claims or defenses of the class representative be typical of the claims or defenses available to the class members. This means that the type of lawsuit the class representative would bring against the employer is similar to the lawsuit that the other employees could also bring if they wanted to. If this is the case, then a court decision regarding the class representative will be binding on and applicable to the claims of the class members as well.
4) That the class representatives will fairly and adequately protect the interests of the class. This means that a) there can be no actual conflicts of interest between the class representative and the class members; b) the class representative must fight to ensure that the proper relief is provided for the class; c) the class representative must hire competent legal counsel familiar with class actions to represent the interest of the class.
In the Dukes case, evidence revealed that Wal-Mart has no centralized policy on hiring, firing, pay and promotions and that it left most of its decision-making on such matters to its 3,400 regional managers. Because of this, the Supreme Court concluded that the over 1.5 million female employees did not have enough in common to constitute a class. In other words, the case did not meet the commonality requirement of number 2 above.
However, this is not the end of the Dukes case. The Supreme Court only decided on whether Wal-Mart’s 1.5 million female employees could proceed as a class. The Supreme Court did not rule on the merits of the case and the issue of whether these employees were in fact discriminated because of their gender.
As a result, plaintiffs’ attorneys have amended their complaint to satisfy the Supreme Court’s stricter requirements. The complaint still alleges systematic discrimination. But this time, the number of victims is now limited to 95,000 current and former employees in Wal-Mart’s California stores. The case is ongoing and whether it will pass class certification requirements this second time around, only time will tell. But as can be seen here, a class action is still a viable remedy for certain types of cases. Plaintiffs’ attorneys will simply have to adhere to its strict requirements.
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C. Joe Sayas, Jr., Esq. is an experienced trial attorney who has successfully obtained significant results, including several million dollar recoveries for consumers against insurance companies and big business. He is a member of the Million Dollar-Advocates Forum—a prestigious group of trial lawyers whose membership is limited to those who have demonstrated exceptional skill, experience and excellence in advocacy. He has been featured in the cover of Los Angeles Daily Journal’s Verdicts and Settlements for his professional accomplishments and recipient of numerous awards from community and media organizations. His litigation practice concentrates in the following areas: serious personal injuries, wrongful death, insurance claims, unfair business practices, wage and hour (overtime) litigation. You can visit his website at www.joesayas law.com or contact his office by telephone at (818) 291-0088.
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