Wal-Mart sex-bias suit order adjusted
Posted on Wednesday, December 12, 2007
A federal three-judge panel on Tuesday modified its earlier decision that allowed the largest class-action sex discrimination lawsuit to proceed against Wal-Mart.
The main effect of the new order, filed by the 9 th Circuit U. S. Court of Appeals, is to delay Wal-Mart Stores Inc. ’s appeal of the court’s February decision upholding a judge’s class certification, according to lawyers on both sides.
Bentonville-based Wal-Mart, seeking review by a larger panel of 9 th Circuit judges, must now resubmit that request.
The order also helped “clear out the underbrush” by clarifying and, in some instances, modifying the court’s earlier order, said Joseph Sellers, co-lead counsel for the plaintiffs who sued Wal-Mart in 2001.
One portion of the new order, however, could remove 75, 000 to 100, 000 potential plaintiffs from the class, Sellers said. He previously estimated the size of the class at 2 million.
Wal-Mart’s lead lawyer in the case, Theodore J. Boutrous Jr., said he would proceed with efforts to reverse court certification of the class.
“The court’s order makes clear that Wal-Mart can now file a new rehearing petition in light of the new opinion. We intend to do that and believe that our arguments are very strong," Boutrous said in an e-mailed statement.
An analysis of liability in the lawsuit, released earlier this year by The Goldman Sachs Group Inc., estimated potential damages at $ 1. 5 billion to $ 3. 5 billion if Wal-Mart loses. Punitive damages potentially push the figure to a range of $ 13. 5 billion to $ 31. 5 billion, the analysis said.
Goldman Sachs’ estimate was based on a class of 1. 6 million current and former workers.
The lawsuit, known as Dukes v. Wal-Mart, claims the company paid women less than men for the same jobs and did not give women the same promotion opportunities as men.
Brad Seligman, co-lead counsel with Sellers, said Tuesday’s new order, while unexpected, “ continues to uphold the largest class ever certified, and I think it moves the women one day closer to their day in court.” “Overall, I think the opinion leaves us in a very strong position,” he said.
Judge Andrew J. Kleinfeld dissented in the latest ruling, as he had earlier when he contended that certifying the class action deprived Wal-Mart of its right to defend against individual cases alleging discrimination. Female employees who were discriminated against also would be hurt by class action, he wrote earlier, because women “who were fired or not promoted for good reasons” would also share in any award should Wal-Mart lose the case. U. S. District Court Judge Martin Jenkins certified the class in a decision released June 22, 2004. Tuesday’s revised decision by the three-judge panel sent back to Jenkins the issue of whether the class should be narrowed to eliminate female employees who had left Wal-Mart before June 8, 2001, when the lawsuit was filed. Those former employees would not stand to benefit from hiring, promotion or other employment policy changes resulting from the lawsuit, Sellers said. However, he contends the class should include employees who worked for Wal-Mart as far back as December 1998, when a complaint was first filed with the federal Equal Employment Opportunity Commission.
To contact this reporter: spainter@arkansasonline. com
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