U.S. Chamber urges 9th Circuit to reverse class action status in Wal-Mart case

Chris Rizo Mar. 6, 2009, 3:43pm

Robin Conrad

WASHINGTON (Legal Newsline)-A federal appeals court should reject the class action certification for a lawsuit claiming that Wal-Mart was discriminatory in its pay and promotion policies, the U.S. Chamber of Commerce said in an amicus brief.

The 9th U.S. District Court of Appeals in San Francisco has agreed to hear the case Dukes v. Wal-Mart. In the original 2001 lawsuit filed in San Francisco, six female workers claimed Wal-Mart paid women less than men and give them fewer promotions.

In December, a three-judge panel at the appeals court heard the request for reconsideration. The panel agreed with the 2004 lower court decision granting class action status. Wal-Mart asked for a hearing before a larger group of judges.

In its filing, the U.S. Chamber of Commerce argued that when a judge in 2004 allowed the case to proceed as a class action, the district judge said that the plaintiffs could prevail based solely on statistical and anecdotal evidence, limiting Wal-Mart's defense.

"The court denied the defendant the opportunity to provide evidence that it acted lawfully," said Robin Conrad, executive vice president of the National Chamber Litigation Center. "With no opportunity to mount a reasonable defense, the high stakes litigation forces employers either to settle a meritless lawsuit, or face financial ruin."

Conrad added that since class certification in 2004, "an overwhelming consensus has emerged that these mega-class actions are too big to manage, and are too likely to deny defendants their rights."

If the lawsuit's class action status is reversed it could mean that the plaintiffs would need to proceed individually with legal action against the company.

Court papers indicate while women made up 65 percent of Wal-Mart's nonmanagement staff in 2001, but just 33 percent of department managers and 14 percent of the store managers were women.

Wal-Mart Executive Vice President and General Counsel Jeff Gearhart hailed the appeals court decision last month to hear the case as a "positive step" in the litigation.

"It is important to note that the merits of this case have not been considered by the courts, and we believe the experiences alleged by the six individuals who brought this suit are not representative of the experiences of our female associates," Gearhart said in a Feb. 13 statement.

Legal Newsline is owned by the U.S. Chamber of Commerce.

From Legal Newsline: Reach staff reporter Chris Rizo at chrisrizo@legalnewsline.com.

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