Mixed Forecast for Class Actions After Wal-Mart

July 15, 2011

All hope is not lost for class action plaintiffs in the aftermath of the Supreme Court’s ruling in Wal-Mart v. Dukes, posits a Reuters article focusing on several federal court decisions issued in the three weeks since the Wal-Mart Decision.  Nevertheless, the classes in those cases, which relate mostly to wage-and-hour claims, are nowhere near as large as the class in Wal-Mart, and the lawsuits do not address systematic discrimination.

In New York, a federal judge ruled that about 600 employees of SimplexGrinnell, a unit of Tyco International Ltd, can proceed with a class action suit alleging that they were underpaid. In Florida, California, and Ohio, federal judges have upheld class certification in cases relating to overtime pay and other wage-and-hour claims.

Allan King, an employment lawyer at Littler Mendelson, explained, "A lot of the judges are reading the Dukes case narrowly. If they were to read it more broadly, plaintiffs would have to make a much stronger case much earlier in the litigation." Plaintiffs applying for class certification in Fair Labor Standards Act cases have also been successful, as they are not subject to the strict standards required in discrimination cases, like Wal-Mart, brought under Title VII of the Civil Rights Act of 1964. 

The Reuters article also notes:

To be sure, the plaintiff classes so far kept intact or certified are small compared with the Wal-Mart group, and their lawsuits do not involve the same type of sex bias allegations. The Wal-Mart case is expected to have more of an impact in other nationwide discrimination class actions, including pending cases against Costco Wholesale Corp, Toshiba Corp, Goldman Sachs Group Inc, Cigna Corp and Bayer.

In a recent article in the Harvard Law and Policy Review, the official journal of ACS, Catholic University Law Professor Suzette Malveaux stressed the importance of class action remedies for victims of discrimination, noting that “for many employees and others, a class action is their only meaningful access to the courts.”

Speaking at the ACS 2010-2011 Supreme Court term review, Malveaux commented that, with the conservative justices making it more difficult to meet the commonality standard, the bar for class certification was raised and “that was devastating for employees challenging nationwide, systemic discrimination of that magnitude against an employer that large.” She continued, “I think the case will make it more difficult in employment discrimination cases … it’s going to be much more difficult for people to proceed with this kind of systemic challenge.”

For more information about Wal-Mart v. Dukes and other cases pitting corporate interests against those of individuals, including a video podcast interviews with Professor Malveaux and lead plaintiff Betty Dukes, visit the ACS web page on Corporations and the Courts.