Commentary Magazine


Wal-Mart 1, Trial Lawyers (and the 9th Circuit) 0

The Supreme Court came down unanimously this morning on the side of Wal-Mart in the case of Wal-Mart v. Dukes, ruling it cannot proceed as a class-action suit. Justice Scalia’s opinion held the class was too large and too diverse to have the class members’ cases handled collectively.

Six women employees had sued on behalf of themselves and other female employees, claiming Wal-Mart discriminated against them in matters of pay and advancement.  The case began in way back in 2000 . The trial judge ruled the case could proceed as a class-action, a ruling affirmed by the 9th Circuit, both in a three-judge panel and then en banc. As a class action, the suit would have been potentially ruinous for Wal-Mart, exposing them to billions in costs for back pay and punitive damages. The pressure to settle would have been overwhelming. Now cases will have to proceed individually, each on its own merits.

This is a huge win for Wal-Mart in particular and for American business in general. It’s a huge loss for the plaintiff  bar, as it eliminates a potential bonanza in fees for the lawyers and limits the much-abused class-action mechanism in future cases.

It’s also a big loss for the 9th Circuit, which covers most of the American west, and is notoriously the most liberal circuit in the country. To be unanimously overruled is usually a bit of an embarrassment for a circuit–after all, it requires both Antonin Scalia and Ruth Bader Ginsburg to agree the circuit’s reasoning and legal interpretation are wrong. But at least the 9th Circuit was only overruled unanimously once today. The Circuit is so out-of-sync with recent Supreme Court jurisprudence it has on two occasions been overruled unanimously twice in a single day.