Will The Supreme Court Approve The Wal-Mart Case?

The case could in the same way likely peter out if the U.S. Supreme Court decides that the decade-long litigation cannot go as a class action forwards. The justices heard arguments on March 29 on the question of whether to certify as a class action the suit filed in 2001 on behalf of Dukes and five other named plaintiffs.

The court’s answer to that seemingly specialized question likely holds the main element to the outcome. “These kinds of cases settle if they’re qualified,” says Michael Selmi, a teacher at George Washington University Law School in Washington, D.C., who has studied employment discrimination situations for more than a decade. Class actions are, in the words of fellow George Washington legislation teacher Roger Trangsrud, “the most controversial” form of civil litigation today.

A class action allows plaintiffs with similar claims to consolidate statements too small to litigate separately into a suit big enough for a lawyer to defend myself against and too big for a corporate and business defendant to brush off. Civil privileges organizations and investors- and consumer-protection organizations view class actions as an indispensable legal tool against corporate and business wrongdoing.

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“There’s often widely dispersed damage from a defendant’s unlawful conduct,” says Scott Nelson, an attorney with the nonprofit Public Citizen Litigation Group in Washington. A course action, Nelson says, is often “the only path” to pursue such claims to pay the victims. At the same time, he notes, lawyers for the course can seek a declaratory common sense or injunction to place a stop to the alleged wrongdoing in the foreseeable future. Business groups recognize some role for course actions, which may benefit an ongoing company by resolving a multitude of potential statements in one “global” arrangement.

But in addition they say that course activities can coerce a company into settling a dubious case to limit litigation expenses and avoid the risk of an even larger judgment. “Some companies are just devastated by course actions,” says Matt Cairns, a lawyer in Concord, N.H., and current leader of the Chicago-based business DRI — The Voice of the Defense Bar. Cairns says class activities sometimes also operate to plaintiffs’ detriment, such as consumer-suit settlements offering class users with discount or reduced-price coupons for the defendant’s product or service. Cairns and other critics say the coupons often go unused while attorneys get to pocket six- or seven-figure attorney-fee honors.

Various types of “aggregate litigation” can be found as far back as medieval England and the 19th-century United States. Today, class actions are governed in federal government court by Rule 23 of the Federal Rules of Civil Procedure, which pieces out requirements for certifying a suit as a class action. In short, the promises to be consolidated must be numerous and generally similar (“common”) and the named plaintiffs typical of and a sufficient representative for the class. The federal judiciary, working out rulemaking power granted by Congress, followed Rule 23 in 1966, in the heady days of civil and consumer rights.