Supreme court and class action limitation coming up?

The Financial Times reports this news:

The US Supreme Court is to decide whether the largest class action employment lawsuit in US history can proceed against Walmart, the discount retailer, in a case that is being closely watched by other large corporate employers.

Walmart appealed to the highest US court in the summer after a federal appeals court in California gave the go-ahead for a sex discrimination suit filed in 2001 that now covers an estimated 1.5m current and former women employees.

Update: see the NYT article for Beverly’s note. Correction to first paragraph (preventing).

Beverly Mann sends a note on her thinking:

“In a second dissent, Judge Sandra S. Ikuta said that allowing the case to go forward as a class action would prevent Wal-Mart from presenting tailored defenses to individual claims,” the Times article says. If the Supreme Court agrees with this, it would eliminate virtually all class actions, on the basis that, by its very nature, the use of the class action procedure would violate the constitutional right to due process of law by preventing tailored defenses to individual claims.

One of the pro-business right’s obsessions is class actions; they’ve been out to end the availability of the class-action procedure for decades now. I think it’s highly likely that the Supreme Court will use this case to significantly limit the availability of the class-action procedure, but probably not by saying that class actions violate the constitutional right to due process of law by presenting tailored defenses to individual claims; they probably will have four but not five votes for that. More likely, they’ll say that classes of plaintiffs have to be more narrowly drawn, but not so narrowly that there can only be classes comprised of plaintiffs identically situated in all respects.

According to the article, Judge Kozinski complained that “Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority’s approved class held a multitude of 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).”

But if the company itself had a de facto policy of discriminating against women in wages and promotions, or if large segments of the company did, then that should be sufficient to establish a class for purposes of a lawsuit. But here’s betting that when this case is decided, it won’t be.

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