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How do you hold a Wal-Mart sized trial?

April 13, 2011 6:44 AM

Professor Epstein's article is a tough act to follow, since he provides an excellent summary of the issues at stake in the Wal-Mart case. (No surprise; he's been doing this for years.) So instead of arguing with him over what he did say, I'd like to focus on a slightly different issue.

As a practicing class-action lawyer--and a defense one at that--my concerns about this case are more pedestrian. The biggest question I've been wrestling with is how the Ninth Circuit envisioned a classwide trial would actually proceed. The en banc opinion doesn't say much about how to try the case. In fact, it only offers two concrete pieces of guidance: (1) that the parties may use aggregate proof in the form of statistics; and (2) that the parties might look to Hilao v. Estate of Marcos (a class action on behalf of Filipino torture victims) as an example of how to try a class action like this.

But neither of these suggestions would be much help in an actual trial. Let's say the parties did use the aggregate proof at their disposal. And let's say that the plaintiffs convinced a jury that--as their expert put it--excessive subjectivity allowed gender discrimination. Can any female Wal-Mart employee borrow that answer to prove her individual claim? No, because she hasn’t established the subjectivity caused (even in part) the discrimination against her. The same goes for the plaintiffs' social-science evidence. Does Wal-Mart's corporate culture encourage gender stereotyping? Even if we say yes, we have not established a link between that culture and any concrete act of discrimination.

This is not an abstract concern. The Eleventh Circuit recently struggled with what happens when a court certifies a class to prove toothless but common questions. Its conclusion: a trial court still must hold individual hearings to determine liability for each class member's claim.

Nor will relying on Hilao for guidance help much in this case. The Hilao case involved only 10,000 class members, less than a hundredth of the number here. And it relied in part on statistical proof.  Nonetheless, the jury in Hilao, even with the help of a special master, required eighteen months between its finding of general liability and its finding of damages. Extrapolating that trend out (and given these are adversarial proceedings, there's no reason not to), it would take a jury 150 years to determine all of the back pay in this case.

So, my question is: did the Ninth Circuit really expect this case to be tried? If so, was this method really more efficient than individual trials? And should a court certify a case expecting it will settle rather than go to trial?




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.