Results matching “dukes”

Cert grant in Wal-Mart v. Dukes - PointOfLaw Forum

Don't believe the hype; as James Beck points out in his able guide to the cert grant, it's not about "the size of the class"—but it's still the biggest class action case before the Court in a decade. More from Trask, SCOTUSblog, and Batten. Cert briefing available at SCOTUSblog.

No certiorari decision yet in Wal-Mart v. Dukes - PointOfLaw Forum

Richard Nagareda - PointOfLaw Forum

I am shocked and saddened at the sudden and untimely death of Vanderbilt Law Professor Richard Nagareda (1963-2010). Professor Nagareda, perhaps the leading scholar on mass torts and aggregate litigation, was a colleague on the Federalist Society Executive Committee; a co-panelist; and well-liked by all who knew him. Professor Nagareda was profilic; we frequently cited to him at Point of Law, including just last week, for his forthcoming paper on Wal-Mart v. Dukes. He was generous enough to contribute a column to Point of Law in 2008 on mass torts. [TortsProf; Vanderbilt]

Update: Drug and Device Law Blog.

Around the web, October 4 - PointOfLaw Forum

SCOTUS to rule on due process in class actions? - PointOfLaw Forum

There's been some press coverage of Justice Scalia's stay of a judgment in Philip Morris USA Inc. v. Scott, the Louisiana class action requiring the tobacco company to set up a $250M+ smoking cessation fund, but it's mostly focused on scorekeeping and the underlying allegations of the suit. But what's really significant about the stay is the interest the Supreme Court is taking on the tail-wagging-the-dog aspect of class actions, where the procedural Procrusteanism of creating a class ends up depriving defendants of their ability to mount a substantive defense that they would have to individual claims. Scalia's order weighs in on the tremendous due process problems—a hint on his thoughts in the pending Dukes v. Wal-Mart case. If the Supreme Court weighs in, it would have the potential to strike down billions of dollars worth of abusive consumer class actions, especially the "harm-less lawsuits" that Michael Greve and I have frequently criticized. Russell Jackson has excellent analysis, and Daniel Fisher's coverage at Forbes is, as usual, more savvy than that of most legal reporters.

Dukes v. Wal-Mart certiorari petition - PointOfLaw Forum

In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart's approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company's express anti-discrimination policy.

The questions presented are:

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

Phrased like that, you have to think the Supreme Court is going to grant the petition for certiorari and reverse the lawless Dukes v. Wal-Mart decision. Earlier.

Around the web, May 11 - PointOfLaw Forum

  • Skadden attorneys analyze the Dukes v. Wal-Mart en banc. [Beisner et al.; Jackson]
  • Strange braggadocio in the jostling for the highly-lucrative lead-counsel position in the Toyota litigation. [Trask]
  • "A Contrarian [and odd] Cheer for Twombly." [Moller]

  • Analysis of the DISCLOSE Act. [Hayward @ Fed. Soc.]
  • "Business, the Roberts Court, and the Solicitor General: Why the Supreme Court's Recent Business Decisions May Not Reveal Very Much." [Joondeph & Srinivasan]
  • EU federalism, American federalism, and the Greek bailout. [Greve]
  • Unbelievable paperwork requirements added in the Obamacare bill. [Tanner @ Atlanta Journal-Constitution]

I am a bit late in commenting on the en banc 9th Circuit's class certification in Dukes v. Wal Mart, but it is, after all, 137 pages.

The decison is problematic on at least four levels. First, as others have noted, it masks a rather unorthodox view of Title VII. It was necessary, on class certification, to identify common question of law shared by the approximately 1.5 million class members who work or who have worked in 3400 stores located in 43 regions on which the cases of the six named class members are typical. Tall order and, having read all 137 pages, I am still not sure just what the majority thinks that common claim is other than a generalized allegation of gender discrimination that happened in some unspecified way because Wal Mart gives managers too much discretion and yet controls them in a way that warrants trying the claims of 1.5 million women as one. You might imagine that this required substantial dexterity and so it did.

The first problem is the elision of a substantial dispute about what Title VII requires. While courts have recognized that subjective evaluation procedures may enable discriminatory practices, they have made clear that a policy of subjective evaluation is not itself discriminatory. The panel majority recognizes this but, as the dissent points out, it never adequately identifies what additional issue, common to all class members, would make Wal Mart's subjective evaluation procedures unlawful. What it attempted to do was marry the ways in which certain policies might facilitate discrimination with the conclusion of an expert that it did. But that creates further problems.

One of the ways in which the panel majority tried to close this loop is through the use of something called "social framework" testimony. My colleague Paul Secunda and Melissa Hart of Colorado have written a good discussion of such testimony from the perspective of those who favor such testimony. The term refers to social science testimony that attempts to identify "structural" and "hidden" forms of discrimination. "Social framework" testimony is not any one thing and I actually agree with Paul that there may be times when it is admissable.

But that doesn't mean that it is not extremely problematic. I had extensive experience responding to such evidence in systemic racial discrimination cases in an earlier life. The unvarnished truth is that there is often nothing "scientific" about it at all. It sometimes does involves application of some particularized research(that may or may not be specfically related to the case at hand) which, taken alone, may be probative and admissable.

But often the helpful is combined with the obfuscatory. The proferred testimony may contain useful observations about what the ways in which the world might work. It may be that subjectivity may enable discrimination. There might be empirical support for the notion that filling positions through "word of mouth" may tend to result in hiring people of the same ethnic or racial background of existing employees. Under the right circumstances, a trier of fact may benefit from hearing these things.

But information such as this is often combined with other assertions that, while claimed to be "scientific" because they have been "peer reviewed, are, in fact, ideological presuppositions that won't survive fifteen minutes of well planned cross examination. While one might suggest that the latter problem goes to the weight and not the admissability of the opinion, the problem is often confounded by the way in which the testimony is presented. Methodology is often hidden behind an impenetrable mask of supposedly objective "content analysis" - you and I might say that the expert "read" a bunch of things that the lawyer gave her - to reach an ultmate conclusion. While expert testimony is not objectionable for the latter, it is unclear why an expert is in a better position than the trier of fact (perhaps aided by whatever insights might be offered by social science research) to reach that conclusion.

The point is often to avoid having to try the many "facts" that the expert claims to have relied on. It is an obvious - but often obscured - fact that the notion that social scientists have "found" that subjective procedures might facilitate discrimination tells us nothing about whether that has happened in the case at hand. This might be shown through the introduction of admissable evidence about the matter in suit that demonstrates discriminatory treatment. It could be done by proof that these subjective policies were adopted to further, or have been influenced by, policies that run afoul of Title VII's prohibition of disparate treatment or impact,

But, at least in my experience and by description of the testimony proffered in Dukes, an expert narrator tells the trier of fact that he or she has reviewed the evidence and has concluded (trust me) that such discrimination has occurred, offering enough "examples" to make the testimony believable.

The problem with the scheme is that it is unclear that this second step is an application of expertise. To be sure, some of my finest moments as a trial lawyer came in skewering this sort of thing. But, unless it is carefully controlled, it is a bit like peeling back an onion. How many instances of bad analysis are enough to undermine the opinion?

I have not read the testimony of the plaintiffs' expert in Dukes, but it's description - in both the decision and the piece by Secunda and Hart - sounds distressingly familiar. Perhaps it ought to be admitted, yet neither the panel nor the district judge subjected the proferred social framework testimony to a rigorous Daubert analysis The panel majority, ignoring the Daubert challenge that Wal Mart actually made, seemed to think that to do so would be to address the merits at the class certification stage. But. as Professors Secunda and Hart Hart point out, class certification in elephantine employment discrimination is often tantamount to a decision on the merits. Failure to assess whether this evidence really meets the requirements of Daubert would seem to be a prerequsuite to finding that it identifies a common question of which the named plaintiffs' claims are typical.

Nor did the district court or panel majority carefully consider what this social framework testimony, even if credited, could establish. That certain management practices could enable (or even that they have often enabled) discriminatory practices might be useful to the trier of fact (although the latter formulation might be overly prejudicial), but that evidence doesn't tell us that it happened in this case or that it happened in a way that is common to all of 1.5 million plaintiffs. Even allowing an expert to pick out some examples of where it might have occurred doesn't accomplish that .To make that claim, as the defense points out, it is necessary to identify some other common policy or practice (such as an affirmative policy of discrimination or some other policy that might be seen as compelling or encouraging managers to exercise their discretion in discriminatory ways) and, after 137 pages, it is not clear what that might be.

The majority opinion makes vague references to "corporate culture" and "centralization" that somehow left subordinates with too much discretion but yet directed its exercise in some way that was common across 3400 stores and 43 regions. At some point, this becomes hard to distinguish from an assertion that sexual disparity must be the result of discrimination because discrimination is pervasive. But that assumes the matter to be tried.

It is really hard to see what is there other than subjective policies and what the district court and panel decision saw as strong statistical evidence of discrimination.

While the panel seems to have thought the latter resolves the difficulty, it does not. More tomorrow.

Around the web, April 29 - PointOfLaw Forum

  • More on Ninth Circuit decision advancing Dukes v. Wal-Mart class action [Mark Moller, Cato]
  • "Financial Regulation Bill Includes Attack on Arbitration" [Carter at ShopFloor] And watch out for the provisions empowering state attorneys general [same]
  • Academic reception of Twombly/Iqbal plausible pleading has passed through stages of denial, anger, bargaining, depression, now on to acceptance [Sullivan, Workplace Prof]
  • Seventh Circuit Judge Diane Wood's handling of some liability cases gets high marks from one defense-oriented observer [Drug and Device Law]
  • "Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts" [Roger Allan Ford, George Mason Law Review, PDF]
  • New Federalist Society site will cover Supreme Court nomination politics []

One hopes the Supreme Court will correct this travesty of a decision; we've extensively discussed the earlier litigation. Judge Kozinski's dissent is concise and to the point about the opinion's abuse of due process issues in its construction of Rule 23:

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), subject to a variety of regional policies that all differed depending on each class member's job, location and period of employment. Some thrived while others did poorly. They have little in common but their sex and this lawsuit.

I therefore join fully Judge Ikuta's dissent.

Around the web, August 4 - PointOfLaw Forum

Dukes v. Wal-Mart redux - PointOfLaw Forum

The Ninth Circuit, ten months after its 2-1 decision in Dukes v. Wal-Mart, withdraws its old opinion and has issued a new 2-1 decision that comes to the same result in response to the motion for rehearing. The new opinion is four pages shorter than the old opinion, and the new dissent is three pages longer than the old dissent. I haven't yet made a page by page comparison, but the main change appears to be punting on the question of the due process violation of the certification where the old opinion expressly denied the claim of a violation. Judge Kleinfeld's dissent is once again persuasive. Wal-Mart will surely file a new motion for en banc rehearing, and the loser of the proceedings (if any) resulting from that motion will surely file a cert petition.

Moller on Dukes v. Wal-Mart - PointOfLaw Forum

Mark Moller of Cato, whose commentaries on the behemoth sex discrimination class action of Dukes v. Wal-Mart we've noted earlier, now has a nine-page article in Regulation on the case's implications. Part of the abstract, from SSRN:

...The retailer is the target of the largest certified class action in history: Dukes v. Wal-Mart, a case consisting of two million punitive damages claims filed under Title VII. While it has lost at each stage in the lower courts, Wal-Mart has litigated the case with an eye to Supreme Court review, by arguing, at each juncture, that the Constitution forbids certifying a punitive damages class action of such an unwieldy size.

Wal-Mart's innovative constitutional argument is significant because it implicitly challenges two under-examined commitments at the heart of class action culture: (1) that class actions, as a form of remedy, stand outside the scope of serious due process scrutiny, and (2) that Congress has delegated courts special quasi-legislative powers in the class context.

...A successful Wal-Mart appeal in Dukes, I suggest, just might shake the faith of class action "culture" in both commitments - with potentially far-reaching, and welcome, results for class action law.

The Vioxx Litigation - PointOfLaw Columns

By Ted Frank

This piece originally appeared in the Class Action Watch, 03-31-07

On September 30, 2004, Merck withdrew its painkiller Vioxx from the market because of a study showing a small but statistically significant increase in risk of cardiovascular events from long-term usage of the drug. What had been a trickle of litigation over the drug became a flood. As of January, there were over 27,000 personal-injury lawsuits involving over 45,000 plaintiff groups, and another 265 putative class actions filed. Plaintiffs' attorneys, it seems, are using the procedural class-action mechanism to achieve substantive advantages in litigation. The vast majority of the class actions Merck faces can be placed in one of four categories.

Personal Injury Class Actions

Many seek to try personal-injury cases as a class action. There is very little chance a nationwide personal-injury class will be certified in any jurisdiction. Pharmaceutical products liability litigation requires the substantive law of fifty different states, and product liability law (as well as the learned intermediary defense) has substantial differences from state to state, making a class impossible. "No class action is proper unless all litigants are governed by the same legal rules[1]."This is because variations in state law may swamp any common issues and defeat predominance[2]."Thus, In re Vioxx Products Liability Litigation held that a nationwide personal-injury class was inappropriate in the Vioxx litigation[3].

Moreover, as Judge Fallon noted, the individualized issues are complex:

The plaintiffs' allegations that Merck failed to warn doctors adequately regarding the alleged health risks of Vioxx--whether they sound in strict liability or negligence--necessarily turn on numerous individualized issues such as: the alleged injury; what Merck knew about the risks of the alleged injury when the patient was prescribed Vioxx; what Merck told physicians and consumers about those risks in the Vioxx label and other media, what the plaintiffs' physicians knew about these risks from other sources, and whether the plaintiffs' physicians would still have prescribed Vioxx had stronger warnings been given.

Constitutional due process demands Merck have the opportunity to defend against each case individually: "one set of operative facts would not establish liability and the end result would be a series of individual mini-trials which the predominance requirement is intended to prevent[4]." Similarly, the fact that plaintiffs have individualized damages claims, including claims for non-economic damages, prevents compliance with the predominance requirements. (In the now-infamous Dukes v. Wal-Mart case, in order to shoehorn the case into certification, the Ninth Circuit permitted the class plaintiffs to waive what would be billions of dollars of non-economic damages if the complaint's allegations were true, a mechanism that seemed designed to benefit the trial lawyers ahead of any class member that had actually suffered injury.) One would not expect Judge Fallon to certify even the individual state personal-injury class actions.

An interesting question is whether Judge Fallon will be willing to hold that his federal decision would bind pending state-court class action certification decisions, or whether plaintiffs will have the opportunity to shop for a better ruling. Judge Easterbrook in In re Bridgestone/Firestone, Inc. held that a federal ruling that a class certification was inappropriate precluded state courts from certifying a class action on the same facts, and that the Anti-Injunction Act did not prohibit a federal court from enjoining such proceedings[5].

Given the unlikelihood of a personal-injury class action certification, why would the plaintiffs' bar devote any resources? The answer can perhaps be found in the Supreme Court's decision in American Pipe & Construction Co. v. Utah which held that the statute of limitations for individual class members' causes of action were tolled while a class action certification was pending[6]. As Jim Beck and Mark Herrmann point out on their Drug and Device Law blog, this decision creates an incentive to file putative class actions that are not necessarily strong on the merits. Ironically, as the two note, the American Pipe Court justified its holding on the grounds that, without a tolling rule, courts would be deluged with duplicative filings. But American Pipe has had no administrative advantage in practice.

Medical Monitoring Class Actions

Merck faces a variety of class actions seeking medical monitoring relief. Medical monitoring was originally devised as a remedy in the unique case of an airline accident. The case involved depressurization and hypoxia where there was no question that the plaintiff children, refugees from Vietnam, faced irreparable harm without an immediate comprehensive medical exam. Plaintiffs took that precedent and ran with it, seeking to extend it to situations where relief was not so clear-cut.

Courts have differed on the appropriateness of expansion of this new cause of action to cases where plaintiffs have suffered no physical injury. The Supreme Court, for one, rejected medical monitoring as a remedy under the Federal Employers' Liability Act in Metro-North Commuter Railroad v. Buckley, noting the dangers of creating a new cause of action that might create unlimited liability, the difficulties of having a court administer a complicated medical plan, and the individualized nature of plaintiffs' medical conditions[7]. Indeed, a wide-open medical-monitoring cause of action would expose nearly every manufacturer in America to liability, given the possibility of arguing that any given substance from automobile pollution to over-the-counter medicine to saturated fats could bring rise to the need for medical monitoring. Meritorious and meritless claims would be difficult to distinguish, and the confusion would almost certainly encourage fraud. The West Virginia Supreme Court, at the other end of the spectrum, created a medical monitoring cause of action in Bower v. Westinghouse Electric and North American Philips Corporation. A very small risk of injury was sufficient to create a cause of action, and there was no requirement that the medical monitoring be effective, or even that there be oversight by the court to ensure that lump sum payments were used for the sought-after remedy[8].

The Vioxx medical monitoring class action that is furthest along arises in Judge Higbee's courtroom in Atlantic City, Sinclair v. Merck. The New Jersey Supreme Court had already endorsed a broad medical monitoring remedy in Ayers v. Township of Jackson, which permitted a lump-sum payment in an environmental tort case involving drinking water[9]. Even so, with the exception of environmental torts, New Jersey had only permitted medical monitoring where there was physical injury. Moreover, the New Jersey products liability law required an injury before bringing suit[10]. Thus, Judge Higbee dismissed Sinclair as outside of New Jersey medical monitoring law: a product-liability suit could not claim risk of injury to support a medical monitoring remedy. The New Jersey Court of Appeals reversed on grounds that the dismissal was premature. Still, even if Sinclair returns to the trial court, there remains no evidence that Vioxx has a long-term effect once it has been metabolized from the system, and thus no scientific evidence supporting a medical monitoring remedy.

"Consumer Fraud" Class Actions

The greatest danger to Merck shareholders comes from the dozens of "consumer fraud" class actions seeking recovery under various broad state consumer fraud laws. These lawsuits seek recovery, claiming not that Vioxx caused them personal injury, nor that Vioxx did not effectively alleviate pain, but that, because Merck allegedly failed to disclose information to the public, it received a higher price than it would have otherwise. Plaintiffs argue that the broadest of these consumer fraud laws do not require any showing of reliance, or a showing that the consumers for whom recovery is sought were affirmatively misled. In one such case, International Union of Operating Engineers Local 68 Welfare Fund v. Merck, Judge Higbee held that New Jersey's consumer fraud laws applied to all of Merck's United States sales and certified a nationwide class of third-party insurers; an intermediate court affirmed that class certification, which is now pending before the New Jersey Supreme Court, which will hear argument shortly.

This class action certification did not take into account basic choice-of-law principles by applying New Jersey law to transactions in all fifty states, regardless of the location of the doctor who prescribed the drug, the patient who took the drug, or the third-party payor. The court's rationale asks, in effect, "What state wouldn't want stricter consumer-fraud liability?" But defendants maintain that it is reasonable to assume that several states are concerned about the disincentives created by overdeterrence when consumer liability attaches without injury at the same time liability attaches with injury[11].

Second, the court undid the statute's requirement that consumer fraud must be shown to cause an individual's injury by rewriting the requirement to fit the class action, and holding that it was sufficient to allege "pervasive" defendant misconduct. But class actions are procedural devices, and cannot change the underlying substantive law or the rights of a defendant to present every available defense (a right reaffirmed by the Supreme Court in Philip Morris v. Williams). Third, it remains unclear how "ascertainable loss" is going to be calculated on a class-wide basis. Every third-party payer has its own individualized means of determining which prescription drugs will be covered by its formulary. Should the Local 68 suit proceed, plaintiffs will seek treble damages disgorging billions of dollars paid to Merck for Vioxx, plus attorneys' fees.

Shareholder Class Actions

Merck stock dropped dramatically when it announced the withdrawal of Vioxx from the market. And where there is a large drop in stock price, a shareholder class action usually follows, demanding that present shareholders compensate previous shareholders' losses (with a substantial commission for the trial lawyers who make the arrangement). Investors who are diversified shareholders are hurt by such lawsuits in the aggregate: the lawsuits merely transfer wealth from their left-hand pocket to their right-hand pocket, because ex ante, one is just as likely to be a seller of an artificially inflated share of stock as a buyer, and shareholder lawsuits do nothing to disgorge wealth from the innocent sellers. (Inside trades are, of course, another matter.) But attorneys' fees are calculated on the aggregate, and, of course, shareholders also pay for the defense of such claims.

A major event in any shareholder class actions comes when the court chooses the lead plaintiff. The internecine battle is especially noteworthy in this instance, because one of the lead firms appointed, Milberg Weiss, is under the shadow of an indictment after two of its regular lead plaintiffs pled guilty to taking kickbacks from the firm. Its lead client fired the firm, but Milberg Weiss did not inform the court, resulting in months of further litigation that was resolved when Milberg Weiss agreed to cut in another firm, Bernstein Litowitz, in the lead-counsel pay-offs. Merck's motion to dismiss the entire case is pending.

Ted Frank is a resident fellow and director of the Liability Project at AEI.


1 In re Bridgestone/Firestone, 288 F.3d 1012, 1015 (7th Cir. 2002) ("Firestone I").
2 Castano v. American Tobacco Co, 84 F.3d 734, 741 (5th Cir. 1996).
3 ___ F.R.D. ___, 2006 WL 3391432 (E. D. La. Nov. 22, 2006).
4 Steering Committee v. Exxon Mobil Corp., 461 F.3d 598, 602 (5th Cir. 2006). See also Philip Morris v. Williams (U.S. Feb. 21, 2007).
5 333 F.3d 763 (7th Cir. 2003).
6 414 U.S. 538 (1974).
7 521 U.S. 424 (1997).
8 522 S.E.2d 424 (W.Va. 1999). See generally Victor E. Schwartz et al., Medical Monitoring: The Right Way and the Wrong Way, 70 MO. L. REV. 349 (2005).
9 525 A.2d 287 (N.J. 1987).
10 N.J.S.A. 2A:58C-2.
11 Firestone I; see generally Michael Greve, Harm-Less Lawsuits? What's Wrong with Consumer Class Actions (AEI Press 2005).

Philip Morris v. Williams and the Wal-Mart case - PointOfLaw Forum

Mark Moller of the Cato Institute spots some language in the majority opinion that could be helpful for defendants facing large, heterogeneous class action claims like the one in Dukes v. Wal-Mart.

Around the web, February 15 - PointOfLaw Forum

  • David Stirling and Tim Sandefur of Pacific Legal Foundation have an op-ed urging Jerry Brown to drop his "frivolous 'global warming' suit." [San Francisco Chronicle; PLF brief]
  • Kreitzman Mortensen & Borden post on the Dukes case. [Representing Management]
  • SEC files brief in Tellabs seeking stricter pleading standards for scienter in civil securities cases. [SEC via Roberts]
  • Failure-to-warn case against Wyeth over Prempro held preempted. [Erichson; Pharmalot]
  • Do plaintiffs' lawyers avoid federal court to avoid Daubert? [Bernstein @ Volokh (Nordberg and Frank comment)]
  • Victor Schwartz et al.: "Toward Neutral Principles of Stare Decisis in Tort Law" [South Carolina Law Review via AJP]
  • Bone screws and informed consent. [Beck and Herrmann]
  • Klick, Kobayashi, and Ribstein: "We find that employment in franchise industries is significantly reduced when states enact restrictions on franchisor termination rights and the effect is larger when states limit the ability to contract around these restrictions." [SSRN]

More on Dukes v. Wal-Mart - PointOfLaw Forum

(Our earlier coverage of the Ninth Circuit decision.)

Hans Bader comments on the case and is even angrier than I am about the lawlessness of it. He reminds us of Professor Fried's earlier critique of Dukes author Judge Harry Pregerson:

Judge Pregerson is most famous for repeatedly defying the U.S. Supreme Court in the Robert Alton Harris case, in which he repeatedly blocked the execution of a vicious killer who murdered two boys in cold blood and then ate their dinner while they lay dying nearby, even after the Supreme Court had set aside his stays of execution as baseless. (Harvard Law Professor Charles Fried wrote a scholarly analysis of Pregerson�s actions aptly titled Impudence). Pregerson had also dissented against life sentences for violent criminals, which he regards as typically being cruel and unusual punishment.

At his own judicial confirmation hearing before the Senate, Judge Pregerson openly boasted that if the law conflicted with his own values, he would choose to apply his own values instead of the law.

As Tim Sandefur noted about the same judge four years ago, the proper remedy for this lawlessness is impeachment.

Bloomberg has the standard laudatory piece on victorious plaintiffs' attorney Brad Seligman. One substantive detail:

In the Wal-Mart case, he showed U.S. District Court Judge Martin Jenkins an e-mail by the retailer's top personnel executive saying the company had no system for telling hourly employees how to earn promotions to management. Jenkins cited the e-mail when he granted the case class-action status in June 2004, the ruling Wal-Mart appealed.

Of course, that sort of evidence, properly construed in an intellectually honest manner against the requirements of Federal Rule of Civil Procedure 23, is evidence that class treatment is not appropriate: if there is discrimination (and any large organization made up of fallible humans is bound to have some somewhere), it is discrimination happening on an individualized basis in particular stores or even particular departments of particular stores. As Brian Van Vleck notes:

For example, to the extent that Wal-Mart promulgated centralized personnel policies and procedures, the majority found that these supported a finding of �commonality.� Yet, to the extent Wal-Mart lacked such centrally imposed policies, the majority held that that, too, was evidence of �commonality� -- because it demonstrated a �common� policy of permitting subjective decisions by local managers. Predictably, Wal-Mart had no way of escaping this logical Catch-22.

Wal-Mart class affirmed by Ninth Circuit, 2-1 - PointOfLaw Forum

In Dukes v. Wal-Mart, a decision that should be long studied for its intellectual dishonesty, a divided court upheld the class certification of a million-plus-member class with disparate individualized claims and absolutely no way to try the case (which seeks punitive damages, no less) with adequate fairness and due process for unnamed class members or the defendant. Objections were brushed aside: after all, if the class is truly problematic, the district judge who made the dishonest certification can choose to decertify the class. (Never mind that this is precisely backwards: the Committee Notes to Rule 23 say "A court that is not satisfied that the requirements of Rule 23 have been met should refuse certification until they have been met.") Statistical evidence that the Supreme Court has said was insufficient was held sufficient; class members that the Supreme Court have said have no standing were given standing; a punitive-damages procedure the Supreme Court has said violates due process was considered sufficient; all in order to shoehorn the class into a "typicality" requirement that could not be met otherwise, demonstrating the danger of class actions where the procedural tail wags the substantive dog. The Court also found, at the request of the plaintiffs' lawyers, that declaratory and injunctive relief "predominate" under Rule 23(b)(2), a matter of procedural convenience rather than intellectual honesty about the law when the compensatory and punitive damages sought rise into the hundreds of billions.

As Judge Kleinfeld's dissent points out, "The Civil Rights Act expressly prohibits orders requiring the reinstatement, promotion, or payment of back pay to anyone injured 'for any reason other than discrimination.'" No matter to the two-judge majority: the substantive law bends to the procedural necessity of extorting billions from Wal-Mart, though here they are at least not dishonest, just lawless, frankly admitting that they prefer "rough justice" to what the law requires.

Rough justice, indeed, for Wal-Mart - PointOfLaw Forum

Former EEOC general counsel Eric Dreiband (now with Akin Gump), on the sex discrimination case of Dukes v. Wal-Mart, in today's W$J:

The Civil Rights Act of 1991 permits each victim of unlawful discrimination to recover damages of up to $300,000. The plaintiffs seek punitive damages of between $450 and $510 billion (1.5 to 1.7 million women times $300,000). In order to shoehorn the case into a class action, their lawyers argue that money is "incidental" and "secondary." In other words, the Dukes plaintiffs seek, literally, a half a trillion dollars in punitive damages alone while their lawyers contend that money is something of an afterthought.

The Civil Rights Act also authorizes compensatory damages for victims of unlawful discrimination. The plaintiffs in Dukes decided not to seek compensatory damages: To do so would render the case inappropriate as a class action because compensatory damage awards depend upon injuries suffered by individuals, not classes of individuals. Any actual victim of sex discrimination by Wal-Mart will lose her claim to compensatory damages unless she hires a lawyer to file papers in the San Francisco court and "opts out" of the case....

This kind of "rough justice," under which any real victim loses her right to bring her own case for real justice while the lawyers become wealthy and move on to their next class action, makes a mockery of the civil rights laws.

Wal-Mart class certification - PointOfLaw Forum

Michael, at George's Employment Blawg, has more on the arguments (see Aug. 16, Jul. 22, Jul. 8).

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