Too Big To Be Sued?

June 20, 2011 9:09 AM

The Supreme Court has unanimously ruled that a class-action gender-discrimination lawsuit against Wal-Mart cannot go forward as the class of plaintiffs affected is "too large." All Things Considered summarized the facts of the case last March; Lyle Denniston at SCOTUSblog reported on the key issue of "class commonality" during oral arguments. The full opinion, authored by Antonin Scalia, is here. Previously.
posted by gerryblog (125 comments total)

Wow. So basically, it's the "kill one man, you're a murderer, kill them all, you're a god" defense?
posted by Old'n'Busted at 9:12 AM on June 20, 2011 [24 favorites]

Old'n'Busted, the first thing that crossed my mind when I saw the decision was "one death is a tragedy; a million is a statistic." I'm sure the lawyers will be along soon to explain why this decision isn't as terrible as it seems, but it certainly sounds as if the ruling means discrimination is lawful so long as it is sufficiently widespread.
posted by gerryblog at 9:14 AM on June 20, 2011 [10 favorites]

So, the big corporation wins again. No surprises here.
posted by kinnakeet at 9:15 AM on June 20, 2011

Nah--this is a great court. Someone'll arrive shortly to explain how this decision actually reflects the profound wisdom of the Roberts' court. Bah. So four of the "liberal justices" also wrote a non-dissenting dissent, but nevertheless, they went along with the decision. Wimps.
posted by saulgoodman at 9:19 AM on June 20, 2011 [3 favorites]

That's kind of a distortion of what they ruled. IANAL, but my read on it is that they ruled that Wal-Mart as a corporation had no policies pushing the individual managers toward discrimination, in fact the opposite. Given that, and the admitted inconsistency of individual managers and lack of evidence from the plaintiffs that there WAS any systemic bias, it should not have been certified as a class-action suit. They didn't say it was okay to discriminate, or that the employees of some particular store or even region could potentially be a class, they said that this particular class was too broad.

For all that I hate big companies, and I despise Wal-Mart in particular, ruling differently would have been a pretty bad precedent and bad law.
posted by contrarian at 9:20 AM on June 20, 2011 [29 favorites]

I'm not a lawyer, but it sounds as if the liberals did dissent on the key issue of whether or not a class this large was prima facie impossible. From UPI: "But the court's four-member liberal bloc, in partial dissent, said the 1.5 million putative women in the class should have been given a chance to show their was enough 'commonality' in their situations to qualify as a class."
posted by gerryblog at 9:21 AM on June 20, 2011 [1 favorite]

Clarence Thomas needs to go.
posted by schmod at 9:22 AM on June 20, 2011 [8 favorites]

"In a company of Wal-Mart's size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction," said Justice Antonin Scalia. Because class actions are suitable for resolving disputes that turn on a common issue, this lawsuit cannot go forward, Scalia said.

This seems pretty reasonable, actually. I think the lawyers for the female workers perhaps got greedy and didn't evaluate the merits of the case as opposed to the merits of the complaint.
posted by clockzero at 9:23 AM on June 20, 2011 [3 favorites]

Oh--I didn't realize there was an actual, binding partial dissent to the opinion. Thanks for the clarification.

(Also, as for the wisdom, correctness or necessity for the ruling, I think that's a matter very much open to reasonable debate. The best rulings on the merits don't necessarily yield the best real-world outcomes.)
posted by saulgoodman at 9:23 AM on June 20, 2011

Worship Money. Live Better
posted by It's Raining Florence Henderson at 9:23 AM on June 20, 2011

Clarence Thomas needs to go.

I personally believe that Thomas and Scalia should finally merge into the two-headed swamp monster that they are destined to become, have a ruling stating "one body, one person" and be reduced, as a whole, to one seat on the Supreme Court.
posted by Mister Fabulous at 9:25 AM on June 20, 2011 [9 favorites]

Why do the words 'too large' always seem to come up in regard to Wal-Mart?
posted by grounded at 9:26 AM on June 20, 2011

My understanding is that they didn't throw out individual cases, just that you can't treat every woman who has ever worked at walmart as a victim, which would haven't been ridiculous, really.
posted by empath at 9:28 AM on June 20, 2011 [1 favorite]

... they said that this particular class was too broad.

This is hardly the time for terrible puns.
posted by gurple at 9:28 AM on June 20, 2011 [8 favorites]

lack of evidence from the plaintiffs that there WAS any systemic bias

From the NPR link: [Plaintiffs say] that when the case was filed 10 years ago, women held two-thirds of the lowest-level hourly jobs and only one-third of the management jobs; and that women were paid on average $1.16 less per hour than men in the same jobs, despite having more seniority and higher performance ratings."

What accounts for this discrepancy if not a systematic bias?
posted by gerryblog at 9:28 AM on June 20, 2011 [3 favorites]

had no policies pushing the individual managers toward discrimination, in fact the opposite.

I read this and wonder how other cases have accounted for potentially espoused theory (in this case it might be "we don't discriminate as a corporation") versus theory in use ("although our guidelines say we don't discriminate, we discourage managers from supporting anti-discrimination activities and decisions or the activities that underlie our corporate culture encourage discrimination in some way").

Does this ruling in any way allow corporations to say "well, our guidelines say we don't do that" even though the evidence of activities points to the opposite and have some better advantage in these types of cases than they had previously?

Just curious.
posted by jeanmari at 9:29 AM on June 20, 2011 [1 favorite]

What accounts for this discrepancy if not a systematic bias?

Probably all that leaving to have babies! /sarcasm
posted by rtha at 9:32 AM on June 20, 2011 [2 favorites]

the class of plaintiffs affected is "too large."

Class warfare really needs its own set of Hague Conventions and Nuremberg trials.
posted by mhoye at 9:32 AM on June 20, 2011 [4 favorites]

Oh--I didn't realize there was an actual, binding partial dissent to the opinion.


Dissents never bind, meaning, they don't count as law that lower courts must respect and follow (though they may be persuasive to those courts). Dissents disagree with the outcome of the majority opinion on a particular legal issue. If an opinion wants to agree with the outcome of the majority opinion on a legal issue, but present different reasoning for it, then it's a concurring opinion.
posted by shivohum at 9:33 AM on June 20, 2011 [1 favorite]

In the majority opinion written by Justice Clarence Thomas . . .

And, evidently, not read by the UPI reporter.
posted by The Bellman at 9:40 AM on June 20, 2011 [1 favorite]

A big corporation? Too big to fail! Take a bail-out!

A big collection of people? Too big to prevail! Get out!
posted by orthogonality at 9:41 AM on June 20, 2011 [6 favorites]

havent read the whole ruling but the gist of it is that the class action is "too large to prosecute". so "too large to fail" is ok and we need to run around screaming to save wall street robber barons but when it comes to not just workers rights but a case that touches on civil and human rights, "too large to prosecute" is a no-no.

fuck you Roberts/Scalia Supreme Court
posted by liza at 9:46 AM on June 20, 2011 [2 favorites]

the class of plaintiffs affected is "too large"

Does this systematic bias make my ass look big?
posted by It's Raining Florence Henderson at 9:48 AM on June 20, 2011 [6 favorites]

shivohim, I meant "binding" in a non-technical sense. Basically, I didn't realize there was an actual dissent on part of the ruling, not just a different concurring opinion (the news reports all describe the decision as unanimous, so there was no dissent on the overall final ruling, just on certain side issues). I see your point, though.
posted by saulgoodman at 9:48 AM on June 20, 2011

Oh come on people. The real beneficiares of these huge class-actions are the lawyers who treat these things like a factory. There is nothing here that forbids all class-actions, or even large class-actions. It just sets a level for what constitutes a class. The fact that all 9 judges agreed, but the liberal side pointed out that in theory a massive class can exist actually tells you what the decision is all about.
posted by JPD at 9:50 AM on June 20, 2011 [5 favorites]

What accounts for this discrepancy if not a systematic bias?

Could be systemic bias throughout all of society, not particularly due to Walmart.
posted by smackfu at 9:50 AM on June 20, 2011 [1 favorite]

Nooo, my class-action lawsuit on behalf of all human beings against street musicians cannot be defeated!
posted by Skorgu at 9:51 AM on June 20, 2011 [2 favorites]

Could be systemic bias throughout all of society, not particularly due to Walmart.

I didn't think "I blame society" is actually a legal defense.
posted by gerryblog at 9:53 AM on June 20, 2011

"too large" = don't let just one law firm collect fees representing everyone in a large group.
Better to require each possible plaintiff to hire her own lawyer.
Gotta spread the money around the legal profession.
posted by hank at 9:53 AM on June 20, 2011

Could be systemic bias throughout all of society, not particularly due to Walmart.

What in the world do you think a systemic bias throughout all of society is other than the sum total of all the biases within subsystems like the Walmart store networks, or the fast food restaurants, or public services?

Still, maybe you're right, JPD. I won't pretend to understand the limits of this ruling well enough to know just how bad or good it is. The mere fact it's seems to be another ruling that makes it harder, even if only in a particular case, to sue a large conglomerate like Walmart doesn't reassure me, thought.
posted by saulgoodman at 9:55 AM on June 20, 2011

I personally believe that Thomas and Scalia should finally merge into the two-headed swamp monster that they are destined to become, have a ruling stating "one body, one person" and be reduced, as a whole, to one seat on the Supreme Court.

Never thought of The Human Centipede as a courtroom drama before...
posted by hermitosis at 9:55 AM on June 20, 2011 [3 favorites]

In related news, the Supreme Court has also unanimously ruled that two girls must each be represented by their own cup.
posted by It's Raining Florence Henderson at 9:56 AM on June 20, 2011 [10 favorites]

I didn't think "I blame society" is actually a legal defense.

Well, you can do whatever you want to us, but I for one am not going to stand here and listen to you badmouth the United States of America!
posted by Bookhouse at 10:01 AM on June 20, 2011 [3 favorites]

The take away being that while Wal-Mart does not officially promote sexism on an official level to legally be held accountable by a class action suit, however, it is filled with numerous independant acting sexist managers to warrant a class action suit to be filed.
posted by wcfields at 10:03 AM on June 20, 2011 [1 favorite]

Guys, to be clear, this doesn't mean that plaintiffs can't sue, it just limits mass class actions in Title VII actions (wherein the plaintiffs will typically each have a large enough claim to get an attorney to take on a smaller group of clients). You don't *need* a massive class action to get attorneys to take on these types of cases, as there are typically at least decent damages, and these types of cases will continue. Wal-Mart will continue to be sued.

I'm no friend of corporations, but having defended, in a former life, some large discrimination class actions, I saw first hand that the decision to settle had little to do with the merits and much to do with the absurd legal costs and risk of taking on a 10k person class.
posted by seventyfour at 10:04 AM on June 20, 2011 [5 favorites]

I wonder if Thonas accepted any expensive gifts from anyone associated with Wal--ma-shtoot.
posted by annsunny at 10:05 AM on June 20, 2011

Too large to win, eh? Americans are morons.
posted by dbiedny at 10:06 AM on June 20, 2011

Er, Thomas. I can't type at all today.
posted by annsunny at 10:10 AM on June 20, 2011

Correction:
Nooo, my class-action lawsuit on behalf of all human beings against street/any mimes (musicians deleted)cannot be defeated!
posted by rmhsinc at 10:12 AM on June 20, 2011

I didn't think "I blame society" is actually a legal defense.

More like "we are no worse than society overall, and we have no policies in place that encourage this, so we are not especially responsible for the statistical bias that you have found."
posted by smackfu at 10:15 AM on June 20, 2011 [4 favorites]

We, as a society, are sick.

You want to fight the status quo on your own? Fine, have it. Lotsa luck. But gather together as a group (which is supposed to be an honored constitutional right) and we'll shoot you right the fuck down. Want to bitch about working conditions? You can fight the Hydra by yourself, but don't try to bring a union with you.

Never mind that the other side is organized and armed to the teeth....
posted by Benny Andajetz at 10:16 AM on June 20, 2011 [6 favorites]

Obviously, the right thing for Wal-Mart to do would be to look at those statistics and create some policies that discourage discrimination by individual managers, but I'm not sure there's any federal laws that require them to do so.
posted by straight at 10:18 AM on June 20, 2011 [1 favorite]

I personally believe that Thomas and Scalia should finally merge into the two-headed swamp monster that they are destined to become --- Artist's rendition.
posted by crunchland at 10:18 AM on June 20, 2011

Think of this as a decision that redistributes wealth among many attorneys rather than a few--If the individual cases merit action (and they well may) the individual plaintiffs who proceed may come out better than in a class action. Granted--many plaintiffs will not proceed, but who knows given the visibility of this case. Besides, this is only one reason to be dismayed at Wal Mart and its customers who have successfully driven down wages in numerous industries. Bargains on a grand scale are reduced living standards on the other end of the scale.
posted by rmhsinc at 10:20 AM on June 20, 2011

The people griping that this is a win for big corporations and a massive injustice obviously don't know squat about civil procedure.

This had very little to do with whether or not Wal-Mart engages in gender discrimination. It had a whole lot to do whether whether or not 1.6 million people can share enough common facts for it to make sense to try all of their cases at the same time. In other words, are the handful of lead plaintiffs sufficiently representative of the rest of the class to make using the facts of their cases as a stand-in for the other 1.6 million a reasonable thing to do.

The fact that the entire court said "No!" should mean something, but no, it's more fun to bash Roberts, Scalia, and Thomas.

Listen people: there is absolutely going to be a class action that gets tried here. What's going to happen how is that the plaintiffs are going to have to carve their case into smaller cases in order to get class certification. Instead of "Every woman that has ever worked at a Wal-Mart," maybe it will be "Every woman who has worked in one of Wal-Mart's regional subdivisions," or "Every woman who worked for Wal-Mart in Ohio," or "Every woman who has worked as a cashier," or "Every woman who has been passed over for a promotion." All of those will still be very large classes, and all of them have the benefit of sharing a more fully-overlapping set of facts, which will make certifying them as a class action a lot more reasonable.

This is going to happen. It's even possible if not downright likely that all 1.6 million members of the current class will wind up being a member of one of these smaller classes. What you're looking at here is not some terribly victory of big corporations over the little guy but a couple of plaintiff's attorneys getting greedy and going for all the marbles, only to be told that they're being too clever by half.

Tl;dr version: Supreme Court cases about civil procedure are always made out to be huge deals, but rarely are, because they tend to have nothing whatsoever to do with the substantive subject matter of their cases.
posted by valkyryn at 10:22 AM on June 20, 2011 [62 favorites]

Also, to be clear, the decision was 9-0 against class certification; the dissent just disagrees as to the reasoning.
posted by seventyfour at 10:23 AM on June 20, 2011 [2 favorites]

Obviously, the right thing for Wal-Mart to do would be to look at those statistics and create some policies that discourage discrimination by individual managers, but I'm not sure there's any federal laws that require them to do so.

No, typically the pressure to create such policies arises through litigation or the threat thereof.
posted by stet at 10:24 AM on June 20, 2011

This is not a bad opinion, legally. Effectively, the court was asked to decide whether a class that was made up of "[a]ll women employed at any Wal-Mart domestic retail store
at any time since December 26, 1998" presented sufficiently common questions of law and fact that they could be dealt with on a class basis. As the opinion noted (quoting the dissent from the Ninth Circuit), the members of the class "held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . .Some thrived while others did poorly. They have little in common but their sex and this lawsuit." Compared to other discrimination cases - for example, where applicants had to pass a physical strength test that favored men or a written examination that had a disparate impact on black applicants - there was not much here to prove actual discrimination against women.

This does not say that Wal Mart is immune from liability for sex discrimination or that a more focused class (for example, women that were affected in one region or for certain targeted positions) could not be certified; it says instead that it is neither practical nor reasonable to treat 1.5 million workers the same based only on their gender.
posted by AgentRocket at 10:24 AM on June 20, 2011 [5 favorites]

It seems that people don't really get how class action lawsuits work or that, when a class is not certified, it does not mean that the plaintiffs lost or that they do not have claims. In fact, there is no question that, to the extent that the putative class members' claims have merit, the individual plaintiffs would recover far, far more as individual plaintiffs than they ever could as members of a class. Moreover, to the extent that there truly is a commonality problem or a typicality problem, that problem would inevitably haunt the class representative's claims through trial and make success on behalf of the class unlikely. Indeed, that's the whole point of the class certification process.

Anyway, I have pages and pages of ranting on this particular subject that I will refrain from typing here (I am an employment class action lawyer), but I'll stop now because it is clear that the people commenting in loud opposition to this ruling simply do not understand how class actions work or that the interests of individual plaintiffs with substantial claims are almost never served by a class action.
posted by The World Famous at 10:25 AM on June 20, 2011 [3 favorites]

When the Supreme Court rules 9-0 on anything, perhaps armchair jurists should consider the merits of the ruling more clearly before declaring the justices to be 'idiots'.

Not everything is a one-sided game where the corporation must lose. Sometimes a lawsuit's scope changes in accordance with the law. This is not exactly the boot of corporate oppression striking down the masses.
posted by zvs at 10:26 AM on June 20, 2011 [7 favorites]

I fucking hate the present Supreme Court so fucking much.
posted by EatTheWeak at 10:26 AM on June 20, 2011

Didn't know the law had become an arbitrary, precedent-less shoe sizing system.

As an actual response to the ruling, there might not have been a common directive to discriminate but there sure as hell was a common acceptance in that company of the practice. Why the first is tackled and the second let go I'll never know.

But, you know, life gives out lemons. Combustible lemons. To a certain class.
posted by Slackermagee at 10:26 AM on June 20, 2011

Why the first is tackled and the second let go I'll never know.

It's been explained several times in this thread.
posted by Marty Marx at 10:28 AM on June 20, 2011

I'm just going to assume that everyone equating a unanimous ruling over procedural mechanisms to the global suppression of the little guy by shadowy conspiracies is just being ironic. I feel this will help me sleep better at night in between visits from the corporate interrogation squads.
posted by Skorgu at 10:29 AM on June 20, 2011 [1 favorite]

Oh man, it's like something different from Scalia every week. What a scamp! ♫ Somebody's angling for a siiiiitcoooooommmmmm! ♫

*starts working on the theme song for "Oh That Scalia"*
posted by Eideteker at 10:31 AM on June 20, 2011

I fucking hate the present Supreme Court so fucking much. --- You can blame this directly on the jackasses who thought that George W. was the kind of guy they wanted to have a beer with, and John Kerry was not.
posted by crunchland at 10:31 AM on June 20, 2011

If the individual cases merit action (and they well may) the individual plaintiffs who proceed may come out better than in a class action.

substitute "Smaller classes" for "individual" and repeat ad nauseum.

The only people losing out are the Jet makers and yacht builders.
posted by JPD at 10:32 AM on June 20, 2011

Derail: I'd totally watch a West Wing-style TV drama about the Supreme Court.
posted by schmod at 10:35 AM on June 20, 2011 [7 favorites]

What accounts for this discrepancy if not a systematic bias?
posted by gerryblog at 12:28 PM on June 20 [+] [!]

It could be -- and probably is -- that there is a systematic bias on behalf of managers without being a systematic bias in the company: the system that is biased is a) their society at large and b) human psychology, wherein a) women are socialised not to push as hard for promotions or raises as men, and b) all people have natural prejudices towards people who are more like themselves.

I recently noticed this "like-self" discimination in myself - I advertised some cupboards to give away and I had lots of responses. But I automatically had better feeling towards emails which were composed in full sentences with formal greetings and correct spelling, rather than those which were composed very casually in text-style writing with poor spelling. This was clearly a cultural thing for me; I always write formal emails when addressing anyone I don't know extremely well.
posted by jb at 10:42 AM on June 20, 2011 [2 favorites]

You can argue about all the legal minutae, if you want. You are correct. I won't deny it.

But it's always the same old song and dance, and always the same result. Here WalMart is so big that it could willfully discriminate against large numbers of people. It doesn't really matter whether or not it was company policy to discriminate - managers acting as their proxy discriminated and WalMart let them do it. Whether WalMart allowed them to discriminate actively or through benign neglect isn't really important.

So, because of their size, they could discriminate indiscriminately, but employees are not allowed to retaliate en masse. So the numbers only work in one direction, apparently.
posted by Benny Andajetz at 10:44 AM on June 20, 2011 [2 favorites]

Wow. Did people not read the article or the decision?

Geez if the Supreme Court had ruled in the other direction we might as well have lined up the entire contents of the male gender to be sued each time a woman is raped based on the speculation that all men must be doing it because it happened with this one guy.

Look at it from a single case point of view. If you wanted to sue your company because you were a woman. Just because you're a woman and you think they were being mean. No injury, no causation. You just feel a systemic bias against women in the workplace because some guy said a particular woman was terrible and wouldn't be promoted in the break room. You'd be bounced out on your ass faster than you can blink.

The plaintiffs in this case tried the same thing but on a massive scale. Yes, some of the women in that class may believe they have suffered injury and may indeed have standing to sue Walmart but trying to scattershot the entire female gender into the case for no other reason than they're women is pants on head retarded and the Supreme Court was right to tell them to come up with a way to tie the women together other than speculative bullshit.
posted by Talez at 10:44 AM on June 20, 2011 [4 favorites]

They're out of order. The WHOLE SYSTEM is out of order!
posted by blue_beetle at 10:47 AM on June 20, 2011

Anyone surprised by this hasn't followed the court's 14th amendment case law in the past 30 years. For example, McClesky v. Kemp is a sickening decision which held that the mere fact of racial discrimination doesn't signify, it is required that intent to racially discriminate exist.

The particular facts of this case are much different, of course, but the idea that systemic discrimination needn't be discrimination is the same.
posted by TypographicalError at 10:47 AM on June 20, 2011

So, because of their size, they could discriminate indiscriminately, but employees are not allowed to retaliate en masse. So the numbers only work in one direction, apparently.

This is, not to put too fine a point on it, the essence of distilled bullshit.

Say it with me: There is still going to be a class action case on these issues. All this ruling means is that when you want to get a class action certified, you can't bring in every single possible plaintiff under the sun. The only thing the members of the current plaintiff class have in common is that 1) they're women, and 2) they worked for Wal-Mart at some point in time. That isn't enough to let them proceed as a unified class. Once they break it down into more manageable chunks, the case will proceed, and the merits of the case will be tried.

The case was not dismissed. It is still pending. The plaintiff's claim is just as viable today as it was yesterday. Other plaintiffs are not likely to be discouraged from filing class actions in the future, because until now, no one has tried a stunt like this before, i.e. they've all made sure that the members of the class had more in common.

Simmer down.
posted by valkyryn at 10:51 AM on June 20, 2011 [15 favorites]

The particular facts of this case are much different, of course, but the idea that systemic discrimination needn't be discrimination is the same.

Actually, the facts of this case are largely irrelevant. This was a procedural case decided on procedural issues. Even the liberals' dissent focused on how the majority parsed the interaction between FRCP 23(a) and 23(b)(3). Whether or not Wal-Mart engaged in discrimination was not actually an issue upon which the Court ruled.

Seriously, people, if you aren't going to read the opinion, don't offer your own.
posted by valkyryn at 10:53 AM on June 20, 2011 [10 favorites]

Actually, the facts of this case are largely irrelevant. This was a procedural case decided on procedural issues.

Reading the post, it seems to me that much of the arguing was over whether WalMart condoned the discrimination or merely let it happen.
posted by Benny Andajetz at 11:00 AM on June 20, 2011

So, because of their size, they could discriminate indiscriminately, but employees are not allowed to retaliate en masse.

A class action is not a situation where employees retaliate en masse. It is one where a single plaintiff brings a collective action on behalf of a class of individuals who know nothing about the case and who never, ever understand what they are giving up when they choose not to opt out of the class and pursue their own individual lawsuit. And then the fact that they did not opt out (because they didn't understand what they were giving up) means that they are precluded from pursuing what may very well have been substantial individual claims and that they're stuck with whatever ridiculously small portion of the settlement they are entitled to as a class member.

I can only assume that people are opposed to this ruling because they don't understand what a class action is and what the alternatives are. Because I refuse to believe that people here are so stupid or evil that they think that discrimination victims would be better off getting a tiny fraction of a class action settlement than if they sued individually and either prevailed or settled their own case.
posted by The World Famous at 11:03 AM on June 20, 2011 [4 favorites]

The World Famous:

I understand that, but there is still strength in numbers on one side and not on the other. If each case becomes individual, then a lot of people will be precluded because they don't have the time,energy or wherewithal to fight their own fight.

Also, a bunch of individual battles are much less likely to stop systemic discrimination.

(And I acknowledged that my viewpoint is not as "legitimate" as the lawyers' here are.)
posted by Benny Andajetz at 11:13 AM on June 20, 2011

The decision was not about the similarities of the women bringing suit, it was about the dissimilarities. Rest assured, those of you stating that other class action suits will be brought in these cases, that those class action suits will also fall to this dissimilarity claim.

This was not a good decision, and the dissenting opinion nails it. Dissimilarity is going to be much more broadly applied than it has in the past. Oh, you had a different manager? Dissimilar. Different store? Different region? Different job title? Different length of employment? Different hours of work? All of these, and many more that the lawyers will come up with, will be used to prove dissimilarity to get a class prevented.

This is a far-reaching decision, covering much, much more than Wal-Mart. It just got a lot harder to sue a corporation as a class.
posted by Revvy at 11:15 AM on June 20, 2011 [4 favorites]

it seems to me that much of the arguing was over whether WalMart condoned the discrimination or merely let it happen.

Because if Wal-Mart had actively condoned discrimination companywide—say, if there were a smoking-gun memo stating, "We must keep women out of management!"—then at least that would be one affirmative fact tying all these cases together. The court is basically saying that no such fact exists.

Generally, our system of justice prefers to try cases individually. If you have a claim, then you deserve your own day in court—not a shared, "group day." The burden was on the plaintiffs' attorneys to show that there is some sufficient issue of fact common to all 1.5 million potential plaintiffs to justify cramming everybody together. They failed to satisfy that burden. Unsurprisingly, 1.5 million people have a lot of disparate circumstances, and they comprise a group that it just too unwieldy for a single trial.
posted by red clover at 11:16 AM on June 20, 2011 [2 favorites]

The people who brought the suit don't lose their claims. They just can't bring them as representing a class. That's all.
posted by Ironmouth at 11:22 AM on June 20, 2011 [2 favorites]

Isn't a class action suit kind of odd in this case? Like it seems like it would be easier to prove that individual managers were discriminating against small groups of individual employees rather than that Walmart overall had a culture of discrimination, especially given there is no smoking gun of evidence there.

Is is simply that there is a lot more money for the lawyers in the class action?
posted by smackfu at 11:32 AM on June 20, 2011

They just can't bring them as representing one [massive] class.

They can and will still bring multiple suits as multiple smaller classes. Maybe even just one class that was passed over for promotions because they are women and another who are underpaid because they're women.
posted by VTX at 11:33 AM on June 20, 2011

Is is simply that there is a lot more money for the lawyers in the class action?


Perhaps parsed more carefully, a larger class action is probably more profitable for the lawyers, but is probably not as good of an outcome for actual victims.
posted by JPD at 11:37 AM on June 20, 2011

Do you know who else overturned wrongly decided appellate court decisions that took too liberal a view on the procedural mechanisms of class action lawsuits at the cost of benefiting a giant monolithic corporation oftentimes equated with capitalism run amok? That's right...
posted by gagglezoomer at 11:42 AM on June 20, 2011 [1 favorite]

Ralph Nader?
posted by bonehead at 11:44 AM on June 20, 2011

This thread has actually been kind of reassuring to me. As long as the assumption that this won't negatively impact any narrower class action claims along similar lines bears out, this decision may not be as bad as all that--but it's still at least a temporary setback (in the sense that it introduces new legal and procedural delays), to these specific ongoing efforts to hold Walmart accountable for its discriminatory personnel management practices. So it's definitely not an immediate win in the struggle for workforce equality and labor rights, but it may be a reasonable ruling on the merits in this particular case. So at least on the face of it, this ruling doesn't look as bad as other recent rulings that have gone to the corporate side of the court docket.
posted by saulgoodman at 11:45 AM on June 20, 2011

I really don't think 1.6 million women are going sue walmart, either individually or in smaller classes. There may be some kind of class action against walmart, there may be some individual suits, but its not going to be of the same scope. Large class actions totally serve to make plaintiffs lawyers rich! It's true! They also serve to deter corporations from engaging in illegal activities. We don't have regulatory bodies in this country that check to see whether walmart is discriminating. We rely on lawsuits to stop things like this from happening.

Most people are not litigious - they don't pursue rightful claims that they have, even though this is the only vehicle we have here to affect change. Large class action lawsuits (and I say large because small class action lawsuits are going to be meaningless to walmart) can enact punitive damages and won't leave people whining that some old lady who just had coffee spilled on her got millions of dollars.

The only way to deter corporate behavior is to hit them in the pocketbook. 25 women getting the compensation they would have gotten had they been promoted to 'manager' will not affect the walmart pocketbook.
posted by goneill at 12:15 PM on June 20, 2011

Large class action lawsuits can enact punitive damages

So can small ones, and they can do it in ways where Walmart can't point at one counterexample out of 1.6 million members of the class to confuse the jury.
posted by Etrigan at 12:21 PM on June 20, 2011

Rest assured, those of you stating that other class action suits will be brought in these cases, that those class action suits will also fall to this dissimilarity claim.

And on what basis do you make that pronouncement? This is an employment discrimination case. Central to the Court's ruling was the fact that the current class attempts to jam women who worked in different places, at different times, in different positions, into the same class. Take those things away, and there isn't a whole lot left in common except the fact that they were women who worked for Wal-Mart. I've already suggested a number of plausible sub-divisions which would still result in classes well into hundreds of thousands of members but which have much stronger factual ties.

All this case did is establish the outer limit of what can be certified as a class, something which had never really been asked before. Which is why the Court agreed to hear it in the first place.
posted by valkyryn at 12:22 PM on June 20, 2011 [1 favorite]

So it's definitely not an immediate win in the struggle for workforce equality and labor rights, but it may be a reasonable ruling on the merits in this particular case.

Actually, I can make an argument that this will ultimately help those causes. By forcing the plaintiffs to focus on a more clearly defined nexus of operative facts, any resulting precedent will itself necessarily be more focused. If this class had gone forward, its probative value may well have been minimal, as the factual issues being addressed would be either so vague or so complex that using it in other cases would probably have been really difficult, as defense attorneys could easily have distinguished it. If, as I've suggested, this case moves forward after being broken into more manageable chunks, we'll wind up with rulings aimed directly at the facts in those individual cases.

Bad facts make bad law. Making the plaintiffs clean up their facts may wind up being good for everybody. Good for the defendants, clearly, because now they don't have to deal with this indecipherable morass of non-overlapping claims, but good for the plaintiffs too, because the more closely the members of a class are linked, the more good facts they can bring to the table.
posted by valkyryn at 12:27 PM on June 20, 2011

The only way to deter corporate behavior is to hit them in the pocketbook. 25 women getting the compensation they would have gotten had they been promoted to 'manager' will not affect the walmart pocketbook.

If only 25 of these putative class members has a valid claim of discrimination, then by definition the class should not be certified. If, as the putative class representative plaintiffs claim, there are millions of valid discrimination claims, then each of those individual claims, brought as separate discrimination suits rather than a collective action, will add up to thousands if not millions of times more money than the class action would.
posted by The World Famous at 12:28 PM on June 20, 2011 [1 favorite]

And on what basis do you make that pronouncement? This is an employment discrimination case. Central to the Court's ruling was the fact that the current class attempts to jam women who worked in different places, at different times, in different positions, into the same class.

I can tell you from a lot of experience that similarly situated comparators are a narrow group under the case law.
posted by Ironmouth at 12:29 PM on June 20, 2011 [2 favorites]

The term used "too large" appears to have been conflated with "too broad". A class can have as many members as meets the definition of the class. An overly broad or vague class definition will generally yield larger class than a specific definition.

It doesn't look like they actually ruled the class was "too large".

Also, reading the second link, it appears that the court took issue with the plaintiffs arguments in other areas as well.

Looks like it just wasn't a well prepared case. Lawyers got too greedy.
posted by Xoebe at 12:51 PM on June 20, 2011

The only way to deter corporate behavior is to hit them in the pocketbook. 25 women getting the compensation they would have gotten had they been promoted to 'manager' will not affect the walmart pocketbook.

So we want to hit them punitively? If only there was some kind of damage that could be awarded to a plaintiff in order to discourage a corporation above and beyond compensation for the actual injury.
posted by Talez at 12:54 PM on June 20, 2011

So we want to hit them punitively? If only there was some kind of damage that could be awarded to a plaintiff in order to discourage a corporation above and beyond compensation for the actual injury.

They're called punitive damages. They exist.
posted by Ironmouth at 12:57 PM on June 20, 2011

If only 25 of these putative class members has a valid claim of discrimination, then by definition the class should not be certified.

The dissent argued the following:

1. The class needs, first and foremost, a commonality. Two appeals courts found that there was a commonality, and Ginsburg and the dissenters found their reasoning correct.

2. There is a second level test to determine differences between the different people in the class, but the majority improperly made the differences more important than the commonality.

So, supposedly reasonable people can disagree here.

And there doesn't have to be "valid claim of discrimination". That's what the trial is to determine. There has to be a reasonable question.
posted by Benny Andajetz at 1:01 PM on June 20, 2011

They're called punitive damages. They exist.

Sorry I thought the sarcasm was implied.
posted by Talez at 1:03 PM on June 20, 2011 [3 favorites]

Ginsburg and the dissenters found their reasoning correct.

Dude they didn't dissent. It was 9-0. They just didn't agree with all of the opinion, so wrote a concurring opinion suggesting that size itself was not an issue.
posted by JPD at 1:04 PM on June 20, 2011 [1 favorite]

Dude they didn't dissent. It was 9-0. They just didn't agree with all of the opinion, so wrote a concurring opinion suggesting that size itself was not an issue.

Actually, they did, but only in part. All nine justices joined the majority opinion in Part I (statement of the case) and Part III (FRCP 23(b)(3) analysis), but four dissented with respect to part II (FRCP 23(a) analysis). So the tally is five fully joining the majority opinion with four concurring in part, dissenting in part, and concurring with the judgment.

So yes, there was a dissenting opinion, but all nine justices did agree that the class should not have been certified. The dissenters thought that the decision was broader than it needed to be, i.e. the Court didn't need to invoke 23(a), but they too would have rejected it under 23(b)(3) grounds.
posted by valkyryn at 1:17 PM on June 20, 2011 [1 favorite]

It was 9-0, but for two different sets of reasons. Ginsburg, Breyer, Sotomayor and Kagan said they shouldn't have been certified for a case involving monetary awards, not because they were not a certifiable group.

And even though they concurred with the final decision they did add a dissent at the end:

The Court errs in importing a "dissimilarities" notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court's opinion.
posted by Benny Andajetz at 1:19 PM on June 20, 2011

"Class Actions at the Crossroads: An Answer to Wal-Mart v. Dukes" from the Harvard Law & Policy Review, Vol. 5, June 2011. You can download it and read it. Suzette Malveaux (disclosure: was a law professor of mine) worked for the Plaintiff at some point. She wrote this before the decision, and is clearly pro-class certification, but I think it's a (long, densely written) good backgrounder even after the decision.
posted by atomicstone at 1:20 PM on June 20, 2011 [3 favorites]

Am I'm being naive here, or aren't substantially all class-actions of this size and scope about monetary awards?
posted by JPD at 1:21 PM on June 20, 2011

Am I'm being naive here, or aren't substantially all class-actions of this size and scope about monetary awards?
I don't know precisely what you're meaning when you say "scope", but there's a big difference between deciding everyone in the class is owed $38.95 (or some percentage...or a coupon to buy more!) in overcharges or in attempting to determine specific back-pay due to each member of this very very large class.
[This article about oral arguments explains some of the Justices' concerns about this aspect secondary to the specific concerns related to FRCP 23(b)(2)]:
"The justices devoted less time to broader issues of class action procedures, such as whether the plaintiffs could maintain a class under Rule 23(b)(2) even though they are seeking monetary relief in the form of back pay.
Justice Ruth Bader Ginsburg was skeptical of the possibility of conducting individual back pay hearings, while Justice Sonia Sotomayor asked Sellers how Wal-Mart would defend against such claims if there were no individual hearings.
'Is this really due process?' Justice Scalia asked."
posted by atomicstone at 1:52 PM on June 20, 2011

I am having a hard time getting frothed about this considering how much better class actions suits seem to be for the plaintiff lawyers than they are for the class members. I have no illusions about being in the minority here, though, given that I also thought Citizen's United was properly decided (if extremely unfortunate) because the distinctions between commercial speech and citizen speech are pretty nebulous and hard to parse.
posted by phearlez at 2:12 PM on June 20, 2011

Not sure if this has been noted already, but keep in mind that these are opt-out classes, and the claims of any class member cannot be brought individually once the class's claims have been determined. This is a huge problem for any individual plaintiff with a significant claim; imagine if you had a good chance of getting hundreds of thousands of dollars because you were denied a management promotion, but ended up with $38.50 in Walmart coupons because that was determined to be the "average" damages for 1.6 million women, some of whom worked cashier for 2 months or whatever. Huge, unwieldy class actions with highly varying damage claims are very bad for plaintiffs.
posted by palliser at 6:31 PM on June 20, 2011 [2 favorites]

I am having a hard time getting frothed about this considering how much better class actions suits seem to be for the plaintiff lawyers than they are for the class members.

Yes, and there is often collusion between the plaintiffs' lawyers and the big corporations when it comes to certifying and quickly settling a class action: the plaintiffs' lawyers get a huge payday, and the big corporation gets rid of thousands of potential claims in one day, at relatively low cost compared to litigating each one individually. No wonder we so often end up with millions in fees for the plaintiffs' lawyers and coupons for the class members.
posted by palliser at 6:36 PM on June 20, 2011

Yes, and there is often collusion between the plaintiffs' lawyers and the big corporations when it comes to certifying and quickly settling a class action:

What are you basing that assertion on?
posted by The World Famous at 6:54 PM on June 20, 2011

Yes, and there is often collusion between the plaintiffs' lawyers and the big corporations when it comes to certifying and quickly settling a class action:

What are you basing that assertion on?

Well I don't know about outright collusion, but there's certainly an arguable conflict of interest at work here. The defendant corporation obviously wants to settle the case as quickly as possible for as little as possible, and the plaintiffs themselves obviously want as big a payment as possible. But because the plaintiffs have very little say in how settlements are structured, the plaintiffs' attorneys frequently make out like absolute bandits, leaving individual plaintiffs with relatively little.

For example, I'm actually a member in a class action suit against BarBri, which has been accused of price fixing--and rightly so!--related to their bar review study programs. What's my settlement offer? A discount coupon on another BarBri course, requiring me to spend another few hundred bucks to get any real benefit at all. What do the plaintiffs' attorneys get? 25% of $5.285 million. I had no real notice that I was even a member of the class until I got the settlement papers. Screw everything about that.
posted by valkyryn at 7:03 PM on June 20, 2011 [1 favorite]

Well I don't know about outright collusion, but there's certainly an arguable conflict of interest at work here.

Class action plaintiffs' lawyers might arguably have a sort of conflict (not a legal one, though), since they're incentivized to settle early and for a large amount of attorneys' fees. But class action settlements are subject to review and approval by the court, as well as objection by any class members. And, in many cases, at least, the attorneys' fees are limited to actual documented hours worked and "billed" by the plaintiffs' lawyers at a "market" rate (which is, in my experience, actually a lot higher than the actual market rate).

But that incentive does not reflect negatively on the defense side, whose incentive is always to settle as quickly and cheaply as possible. It's not collusion when a defendant tries to get the best settlement possible.

But because the plaintiffs have very little say in how settlements are structured, the plaintiffs' attorneys frequently make out like absolute bandits, leaving individual plaintiffs with relatively little.

Yep. In my opinion, class actions are almost never beneficial to the class members. They are, at best, a deterrent. But, in my experience, their deterrent effect is negligible, even where exposure and risk are extremely high.
posted by The World Famous at 7:11 PM on June 20, 2011

in my experience, their deterrent effect is negligible, even where exposure and risk are extremely high.

Yep. A lot of the really big guys have insurance too, or self-insure, i.e. plan these sort of losses into their balance sheets.
posted by valkyryn at 7:21 PM on June 20, 2011

There was a very busy river crossing near the town I grew up in. On weekends the congested two-lane road leading to the bridge could turn into a parking lot. Part of the problem was an intersection just before the bridge that had no traffic signals. One car coming off the bridge trying to turn left could back up traffic in both directions.

Eventually the town got smart and declared the left-hand turn illegal. They even helpfully put a No Left Turn sign at the intersection. The sign lasted for about a year, until it was quietly taken down and the turn made legal again.

What made the town elders, in their infinite wisdom, decide to change back? Too many people were ignoring the sign and turning anyway, which kept the traffic just as messed up as before.

"Sorry if it's bugging you, but everybody's doing it, so..."
posted by Spatch at 9:15 PM on June 20, 2011

Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that Wal- Mart’s corporate culture made it vulnerable to gender bias.

Fucking sociology, you ruined America.
posted by hal_c_on at 1:40 AM on June 21, 2011

But class action settlements are subject to review and approval by the court, as well as objection by any class members. And, in many cases, at least, the attorneys' fees are limited to actual documented hours worked and "billed" by the plaintiffs' lawyers at a "market" rate

How does this defense have any meaning when you acknowledge that "class actions are almost never beneficial to the class members"? They're constructed by plaintiffs' counsel, which means that these lawyers are constructing settlements that are "almost never beneficial" to their clients, and that the courts are then approving them.

You're right, though, that "collusion" casts an unfair light on defense counsel, who are helping plaintiffs' counsel step all over their clients in order to do better for their clients, which is perfectly fair in an adversarial system.
posted by palliser at 6:01 AM on June 21, 2011

Here's some commentary on the decision from Dahlia Lithwick and Scott Lemieux. Lemieux is quotable:

...if you can’t use statistical and anecdotal evidence to prove gender discrimination — and, as he apparently admitted about racial discrimination and the death penalty during the deliberations in McKleskey v. Kemp, it’s clear there’s no amount of statistical and anecdotal evidence that would convince Scalia — then there really isn’t a law against gender discrimination at all. There’s just a law against having your company being run by complete idiots. Any amount of gender (or, presumably, racial) discrimination is acceptable to the Court’s Republican appointees as long as you’re not dumb enough to actually explicitly state it as a formal policy.

posted by gerryblog at 8:45 AM on June 21, 2011

I liked Lithwick's writing better when she worked for the Times.
posted by smackfu at 8:48 AM on June 21, 2011

This, from Lithwick is frankly shocking:

The law allows such "pattern and practice" evidence to be used to prove sex discrimination, even when a company has a formal policy forbidding sexual discrimination. After all, every company has a formal policy forbidding sexual discrimination and few affirmatively encourage it in writing. Scalia is unmoved, however. He asserts that "left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion." The women of Wal-Mart can't show that managers exercised discretion in similarly gender-biased ways, he writes, and scoffs at attempts to do so through "statistical and anecdotal evidence."

If you can't use eyewitness testimony ("anecdotes") and you can't use stats to show abnormal behaviour, what is allowable evidence?

That standard way to test his summation of his null hypothesis would be a statistical test: left on their managers select sex-neutral perfomance criteria. That appears be a testable hypothesis to me. Why disallow measuring it? I've seen with my own eyes outright hositility to any kind of math or analysis in the courtroom, but never quite so bald as this.
posted by bonehead at 8:57 AM on June 21, 2011

How does this defense have any meaning when you acknowledge that "class actions are almost never beneficial to the class members"? They're constructed by plaintiffs' counsel, which means that these lawyers are constructing settlements that are "almost never beneficial" to their clients, and that the courts are then approving them.

My comment was merely a response to the unsupported notion that class action settlements are collusive. It was not a defense of class actions generally. Although I think there are some very limited circumstances in which class actions are a good idea, I think they are a pox on the American legal system generally.
posted by The World Famous at 9:47 AM on June 21, 2011

If you can't use eyewitness testimony ("anecdotes") and you can't use stats to show abnormal behaviour, what is allowable evidence?

You can use either of those with respect to an individual's claim. But if you're trying to show commonality among millions of putative class members, anecdotes and stats simply are not compelling evidence of commonality.
posted by The World Famous at 9:48 AM on June 21, 2011

I have not dove deep enough into this to parse Scalia's statement (though I am certainly predisposed to assume innumeracy in the public, including justices) but before we get hot about rejecting statistics here - this case doesn't seem to have statistics on its side.

gerryblog quoted the NPR article in one place where the plantiffs allege a disparity but left out the following paragraph quoting the defendants: Wal-Mart, however, hotly disputes those statistics, contending that there is no pay difference between men and women at 90 percent of its stores.

If that's true then there's certainly a problem in 10% of the stores. But it's hugely damning against a class-action suit claiming EVERY female wal-mart employee as a class member.

I think there's a good conversation to be had about how far we're going to demand a corporation go to correct imbalances. WalMart has policies on the books that may or may not be useful ones; I don't think anyone is alleging that WalMart's got a corporate policy promoting sexism, are they? So the debate left to be had is whether it is or is not right to demand, legally, that they have policies that do better than keeping 90% of their female workforce from being discriminated against.

But as far as a class action suit it's looking like this one had no business going forward if there's any basis to the assertion that around 90% of the class wasn't negatively impacted.
posted by phearlez at 10:19 AM on June 21, 2011 [1 favorite]

Although I think there are some very limited circumstances in which class actions are a good idea, I think they are a pox on the American legal system generally.

This is a common sentiment, and one that led to the Class Action Fairness act during the Bush administration. There are a lot of shitty class action settlements, but often the alternatives are much worse. It doesn't make the news as much, but a good portion of federal class actions involve securities fraud. Fraudulent SEC filings, improper accounting, and the like. In situations like that, it is almost never cost effective for an individual shareholder to file their own suit. Most don't have much sympathy for the investment companies hit by securities fraud, but it often affects people's savings and retirement accounts. Yeah, the class members may only be getting a fraction of their estimated damages, but a lot of times the individual class members don't each have a simple, slam dunk case.
posted by Mr Mister at 10:35 AM on June 21, 2011

You can use either of those with respect to an individual's claim. But if you're trying to show commonality among millions of putative class members, ....stats simply are not compelling evidence of commonality.

Leaving the question of anecdotes aside, I'm astonished by this statement. How else would you define a population but by analysis of relevant characteristics? We have a whole science for the analysis of differences and populations: statistics. Am I misunderstanding something fundamental here?
posted by bonehead at 10:55 AM on June 21, 2011

How else would you define a population but by analysis of relevant characteristics?

The commonality prong of class certification analysis is not merely a question of defining a population. But statistics certainly play a part in the analysis.

Am I misunderstanding something fundamental here?

Maybe. Or maybe we're talking past each other.

In situations like that, it is almost never cost effective for an individual shareholder to file their own suit.

Yep. Those are among the limited circumstances where the mechanism of a class action is beneficial.
posted by The World Famous at 11:01 AM on June 21, 2011

We must be. I'm not an expert on this but:

In the U.S., for example, the procedural rule for certification includes the requirement that "there are questions of law and fact common to the class." Commonality focuses on the relationship of common facts and legal issues among class members. It is not essential that all questions of fact and law need to be common to satisfy the rule of commonality. The existence of shared legal issues with divergent factual predicates is sufficient.

To me, that seems exactly like the type of question you would want, say, factor analysis for.

As someone who has used statistical analysis on large data sets to tease out similarities and differences, one thing that strikes me is how unhelpful "common sense" analysis of factors is. It's very, very easy to bias a result or see a factor or difference that isn't there, or is an artifact of a particular test. By rejecting analysis, that statement implies to me that bias is more important than provable fact. It leads to a poor apprehension of reality and bad decisions. That's why statistical anti-numeracy is so dangerous: it allows one to impose their biases as facts.
posted by bonehead at 11:14 AM on June 21, 2011

The issue I was referring to is that the commonality prong of class certification analysis is one that relies more on the relationship of the putative class members to a single common set of factual and legal issues than on the sort of things that are generally the subject of statistical analysis. Statistical analysis in the context of commonality of factual and legal issues can certainly come into play at a certain point in the analysis. But simply showing statistical correlation of alleged effects of discrimination, for example, does not by itself provide evidence that the legal and factual issues that must be addressed in order to adjudicate the class members' claims are sufficiently common to justify class treatment. It is not at all inconceivable that individualized issues of fact and law may prevail even in situations where there are statistical correlations in certain factors.
posted by The World Famous at 11:25 AM on June 21, 2011

But simply showing statistical correlation of alleged effects of discrimination, for example, does not by itself provide evidence that the legal and factual issues that must be addressed in order to adjudicate the class members' claims are sufficiently common to justify class treatment.

I think that's the core of the misunderstanding. I'm not talking about using stats to prove the matter of fact: did discrimination happen or not. That question can also be illuminated by analysis (though not decided).

I'm talking about the problem of similarlity for individuals to be considered a common class, defining attributes (characteristics and legal interests) common to the class, then determining membership in that class for individuals. That's what factor analysis and all its relatives are for. See Wikipedia for the application to marketing, for example.

Stats is just a tool. It provides bunch of ways of better understanding a messy situation. It has to be tweaked and used with care to get the results you want. To dismiss it out of hand as Scalia seems to do here, appears as irrational to me as being told to painting landscapes without the colour green.
posted by bonehead at 11:49 AM on June 21, 2011

My comment was merely a response to the unsupported notion that class action settlements are collusive. It was not a defense of class actions generally.

I guess it depends on how you define "collusive": defendant and class counsel generally prefer a high-fee, low-award outcome to a low-fee, high-award outcome. If the lawyers on both sides have a preferred outcome that's bad for the clients on one side, isn't that collusive? Class counsel colluding with the defense as a whole to screw the class. I'm not saying the defense attorneys have a fiduciary duty to the class members; obviously not. But they and class counsel have a mischievous alignment of interest, which results far too often in a win for class counsel, a win for defendants (discharging loads of claims at once), and a loss for the claim-holders.

Now, as you say, when the claim-holders are really only entitled to $1.10 apiece or whatever, it's better than nothing. But when it's a sex-discrimination case, I think it would be generally bad for the plaintiffs to have their claims discharged at a price set by class counsel.
posted by palliser at 11:56 AM on June 21, 2011

But when it's a sex-discrimination case, I think it would be generally bad for the plaintiffs to have their claims discharged at a price set by class counsel.

Particularly when, as the justices noted, these claims are likely to be radically different in both nature and magnitude. A woman who was denied a $0.50/hr pay raise at a cashier's job and quit six months later is going to have far lower damages than a woman who was passed over for a $3k/year promotion in 2000--plus annual increases--and is still with the company.

Saying that the two have enough in common to treat them as members of the same class and thus entitled to the same compensation seems potentially unfair to everyone but the cashier. The second woman is likely going to get far less than she arguably deserves, and Wal-Mart isn't going to get the opportunity to figure out exactly how much either one deserves. The cashier might do okay, because she's not going to be entitled to much anyway, but unless there's an investigation as to at least a representative sample of class members--which with a 1.6 million member class could take a decade--there isn't even really a way to know what an average claim would be.

That's what the Court was concerned with, and that's why they reversed the 9th Cir.
posted by valkyryn at 12:07 PM on June 21, 2011

bonehead: I agree with you.

I guess it depends on how you define "collusive": defendant and class counsel generally prefer a high-fee, low-award outcome to a low-fee, high-award outcome.

On what information are you basing that assertion? I've been litigating employment and consumer class actions for a long time (usually on the defense side but on the plaintiff's side a couple of times) and I have never seen a situation where defense counsel preferred a high-fee, low-award outcome. Defense counsel, in my extensive experience, prefer a class action settlement that favors the class over class counsel, since that settlement is far more likely to be approved by the court. The defense wants class counsel to get the very smallest fee award that plaintiffs' counsel will accept and not a penny more. But class action plaintiffs' attorneys tend, in my experience, to be far more amenable to settlement if they get a larger share of the settlement than a smaller one.

If the lawyers on both sides have a preferred outcome that's bad for the clients on one side, isn't that collusive?

Well, first, they don't. Defense counsel wants the cheapest possible settlement for their client that the court will approve, regardless of the breakdown of the settlement between plaintiffs' counsel and the class members. Plaintiffs' attorneys make out like bandits because they won't settle any other way, not because Defense counsel has some desire to enrich their opponents. And second, even if both sides independently arrive at the same preferences in terms of outcome, it's not collusive unless they collude.

Now, as you say, when the claim-holders are really only entitled to $1.10 apiece or whatever, it's better than nothing. But when it's a sex-discrimination case, I think it would be generally bad for the plaintiffs to have their claims discharged at a price set by class counsel.

I absolutely agree with you there. I cannot think of any way in which plaintiffs in discrimination cases would be better served by a class action than by individual lawsuits, except for those plaintiffs who otherwise would have no interest in pursuing a claim. I have a hard time believing that there is ever a case where commonality can be met as to discrimination claims. Even in wage and hour cases, there are several categories of claims that I don't think should ever be adjudicated on a class-wide basis.
posted by The World Famous at 12:12 PM on June 21, 2011

Wal-Mart ruling makes discrimination easier: By redefining the requirements for a class action suit, the Supreme Court deals a blow to women and minorities
posted by homunculus at 12:50 PM on June 21, 2011

How One Woman Won a $2 million Gender Discrimination Settlement Vs. Wal-Mart
posted by homunculus at 1:01 PM on June 21, 2011

If you can't use eyewitness testimony ("anecdotes") and you can't use stats to show abnormal behaviour, what is allowable evidence?

A smoking gun memo? Executives on tape saying that those broads won't be breaking through the glass ceiling anytime soon? Actual evidence not Lionel Hutz style "we've got lots of heresay and conjecture, those are kinds of evidence".
posted by Talez at 5:14 PM on June 21, 2011

Defense counsel wants the cheapest possible settlement for their client that the court will approve, regardless of the breakdown of the settlement between plaintiffs' counsel and the class members. Plaintiffs' attorneys make out like bandits because they won't settle any other way, not because Defense counsel has some desire to enrich their opponents.

The reason I suggest that both the defense and class counsel prefer a "high-fee, low-award" settlement is that it's usually going to be cheaper to enrich a few people than to pay a decent settlement to tens or hundreds of thousands of people, right? You can pay 3 people a couple million dollars each, and it's cheaper than paying forty thousand people even two hundred dollars each. That's why the defense ends up agreeing to pay off class counsel: because it generally turns out to be cheaper than paying the class what they're owed.

So, despite having different motivations, class counsel and the defense end up preferring settlements that follow a similar pattern: high-fee, low-award -- the defense because they're usually cheaper, class counsel for obvious reasons.
posted by palliser at 5:34 AM on June 23, 2011

In other SCOTUS news: Supreme Court Hands Drug Companies Twin Wins
posted by homunculus at 12:56 PM on June 24, 2011

For those who think this is merely a procedural decision.
posted by prefpara at 9:22 AM on June 27, 2011