Tuesday, June 21, 2011

Women's right to sue as a class limited. Is that the good news or the bad?

The U.S. Supreme Court ruled yesterday that a super-large group of women attempting to sue Wal-Mart failed to establish a commonality of purpose in the filing of a class action lawsuit.  The decision was split numerous ways.  Justice Scalia delivered the opinion of the Court.  Chief Justice Roberts and Justices Kennedy and Alito joined in the opinion.  Justices Ginsburg, Breyer, Sotomayor and Kagan joined as to Parts I and III and Justice Ginsburg filed an opinion which concurred in part and dissented in part as to Part II, in which Breyer, Sotomayor and Kagan joined.  While the "majority" obviously leaned way towards the conservative side of the Court, the issues of gender discrimination and the right to sue as a group got mixed up with the issue of what constitutes a group for purposes of certification as a class.  Many view this decision as a "win" for "big business" and a loss for the "liberals."  However, if you look beneath the surface of the actual holding, the suit remains viable as to 3 of the 7 named plaintiffs and across the country other potential plaintiffs are coming forward and corporate policies will be scrutinized on a more localized level.  That is not all bad, although the loss for certain of the plaintiffs seems unreasonably unfair, considering the technical nature of the decision.  Anything that clarifies the certification process such that more victories for the discriminated upon may be forthcoming in the long run cannot be all bad.

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