Wal-Mart Decision Impacting Environmental Litigation, Greenwire Reports

February 8, 2012

by Nicole Flatow

The U.S. Supreme Court’s decision last term rejecting a class action gender discrimination lawsuit against Wal-Mart was seen as a major blow to corporate accountability in discrimination cases. But the case is also proving its impact in areas outside of the employment or discrimination context.

As Greenwire’s Lawrence Hurley reports, the Wal-Mart v. Dukes decision has been cited in several environmental decisions in both federal and state court, in just the first seven months since the case came down.

Hurley provides details on three of the decisions, all of which deny class certification to plaintiffs attempting to band together to sue large companies that they allege had contaminated their water supplies.

“The post-Wal-Mart court rulings so far also illustrate how keen the defense bar is to make the most of the Supreme Court case,” Hurley writes, quoting Richard Samp, a lawyer at the conservative Washington Legal Foundation.

"The decision is being cited by virtually every defendant who is opposing class certification," Samp said.

During a Senate Judiciary Committee hearing in June on the impact of Wal-Mart and a second case decided last term, AT&T v. Concepcion, University of Colorado law professor Melissa Hart warned:

Because the class action is the only way to reach many kinds of systemic misconduct, the erosion of this tool insulates companies from any serious risk of litigation for many kinds of potentially illegal behavior.

She elaborates in her written testimony:

By erecting barriers to class-wide presentation of harms that are themselves class-wide, the Supreme Court has drastically curtailed the picture presented to a judge, an arbitrator or a jury. The Court‘s rulings inhibit the effectiveness of the legal system by allowing procedural rules to disrupt the truthseeking function of litigation. Moreover, for many years, companies have known that class-wide misconduct can lead to class-wide liability. That knowledge has spurred many corporations to make company-wide policy changes that avoid these harms. If companies are insulated from class-wide litigation, their incentives to voluntarily undertake such reforms are diminished.

These recent decisions thus risk distorting our justice system‘s ability to encourage reform, ensure accountability and compensate those injured by illegal conduct.

There have, however, been some signs of hope for class actions since Wal-Mart came down. Thompson Reuters columnist Alison Frankel flags a recent Seventh Circuit decision that "provides potent protection" for wage-and-hour employees against Wal-Mart. And in July, another Thompson Reuters news report noted that wage-and-hour claims seem to be surviving in the wake of the decision. 

For more on recent Supreme Court decisions’ impact on access to justice and corporate accountability, visit ACS’s Corporations and the Courts page.