Wal-Mart - A Wretched Hive of Scum and Villainy

Tuesday, March 29, 2011
Wal-Mart sucks. Their business practices are despicable. What benefits they do offer are often a double-edged sword, having more to do with lining the pockets of other for-profit companies than with the well-being of their employees. And it's also just a dreadful place to shop - the DMV of retail. Simply walking in the store makes me want to take out my own eye with spork.

It's a pretty safe bet that the next time I shop at Wal-Mart, monkeys will be flying out of my ass.

So I'm watching with interest as the Supreme Court hears a motion relating to the largest employment discrimination case in history - against Wal-Mart. The case has been going on for 10 years, and basically alleges that Wal-Mart as a corporation has an institutional bias against women, and acts on it, regularly. Now I'm not exactly inclined to side with Wal-Mart on anything, so I'll leave the merits of the case to someone a bit more objective, but the motion being heard by SCOTUS has me very concerned. It's basically a question of whether or not Wal-Mart is "too big to sue." 

The argument seems to be that the case is too far-reaching to be deciding on the basis of single trial, and that the class-action status of the suit should be denied. Since I'm not an attorney, I'm not qualified to comment on the veracity of that legal argument. But I am a dirty, dirty liberal, and so my concerns about Wal-Mart, and what this motion means, have more to do with social justice.

I don't shop at Wal-Mart. I don't own their stock. I'm not a member of Sam's Club. I would never consider employment with their company. And the key factor to those decisions is that I have a choice. I'm affluent - I can afford to shop elsewhere. I live in a community with a variety of retails choices - I have the opportunity to patronize another company. I have professional education and experience (and a knack for being in the right place at the right time with the right skills) - working for minimum wage for a company who treats me like their beck-and-call girl isn't something I have to do.

And it makes me apoplectic with rage that because Wal-Mart has a ton of money and a bunch of politicians in their pockets they can essentially force low income and small town consumers and employees to tow their line.

It's not like a low income family can afford to shop somewhere else because Wal-Mart's business practices are offensive. They have to be able to buy as much with their money as they can, because nobody's going to let their kids go hungry on a matter of principle.

It's not like someone who lives in a rural community is going to be able to drive 50 miles several times a week to buy what they need. Wal-Mart's the only game in town, literally, because they've driven out all the other smaller, locally owned businesses.

And it's not like a single mother with limited education and skills who's supporting several kids has the resources to tell Wal-Mart to fuck off. She needs that job, and the fact that Wal-Mart pays her less and affords her fewer opportunities than her team mate who happens to have a penis has no bearing on that fact.

And now Wal-Mart is asking SCOTUS to take away the only recourse these people have - the class action suit. Which the Roberts court is likely to do, since corporations are actually people and all.

Lovely. A wretched hive of scum and villainy, indeed.

11 comments:

Eric said...

Janiece, I hate to point this out, but I think you (and the horrible NPR headline) missed something.

The question before SCOTUS isn't whether Wal-Mart is "too big to sue," the question is whether the class that was certified for the class-action lawsuit against Wal-Mart is too big.

For a class-action lawsuit to proceed, a plaintiff has to be able to show (among other things) that they fairly represent the common interests of the group they represent. I.e., in the case of the Wal-Mart suit, does the plaintiff who is representing the class of all women who have ever worked at Wal-Mart (as I understand the class) fairly represent the common interests of all women who have ever worked at Wal-Mart? As much as I may loathe Wal-Mart myself, this is a fair question from the perspective of all those female employees.

Indeed, from Wal-Mart's perspective, it's merely a strategic question: Wal-Mart doesn't care about whether the plaintiff is a perfect representative for all women who've ever worked for Wal-Mart, but does care about derailing the plaintiff's case, limiting their liability by reducing the number of people they might end up owing money to if the case settles or they're found responsible at a trial, and limiting the plaintiff's ability to prove discrimination by reducing the scope of the case from one of alleged systematic discrimination to one about alleged individual discrimination (it might be much harder to prove that individual discrimination occurred or that Wal-Mart--as opposed to staff at one store, say--should be responsible).

But from the court's perspective, there is an objective question of fairness, and it might or might not be fairly settled in plaintiff's favor. An unsuccessful class action suit or a settlement with the class could, for instance, adversely affect the ability of other women to sue for alleged discrimination by resolving evidentiary issues against those women before they can sue. Or a woman with a legitimate claim might have that claim settled if she is somehow included in the class without proper notice allowing her to opt out or if she is fairly included but the results fail to redress her injury (i.e. it is possible for an individual member of a class to come out with a worse result than if they'd pursued their own individual suit).

I would say for myself that I loathe Wal-Mart, that I wouldn't be surprised if they discriminate against certain employees, and that I am concerned that the SCOTUS will use this case as an opportunity to damage the ability of litigants to certify classes in federal court. But all of that being said, I'm also pretty skeptical of a plaintiff who attempts to certify a class as broad as what seems to have been certified in the Wal-Mart case. It seems like a bit of overreaching, and I find it a little hard to swallow that one plaintiff (or small group of plaintiffs) can adequately cover the interests of what I presume to be a vast and highly varied population; furthermore, if I were a presiding judge, I would be very concerned about the attorneys for the "class" reaching a settlement that did very well for themselves while shafting the half-million women they were purportedly representing.

Finally, if you haven't read this article in Slate, you might find it a helpful survey.

Final note: while IAAL (heh), as you know IANA-CIVIL-L, and haven't even looked at a CivPro book in, oh, I guess it's probably fifteen years since I was a 1L now. If I've misstated something in the above, it's entirely my terrible fault and you can thwack me.

Eric said...

P.S.

Not sure if this was clear from my comment, but if the SCOTUS decertifies the class, individuals may certainly still proceed with cases. The biggest danger would be if the Roberts Court makes an unnecessarily broad decision that sets a lousy precedent.

P.P.S.

Everything else you say about Wal-Mart is pretty much dead-on and how I feel about the place, too.

Eric said...

P.P.S.

I misstated the number of women in the class and the timeframe: it's not every woman who ever worked for Wal-Mart and half-a-million women, it's 1.5 million women who have worked there since 1998.

Again, that sort of has this liberal blinking. Not saying the class shouldn't be certified, just that it's one I'd have to think about if I were the judge.

Janiece said...

Eric, I appreciate your thoughts, and was hoping you'd weigh in.

As I noted, I'm not really qualified to comment on the veracity of Wal-Mart's claim. You make a good point - one I'll have to think about.

The entire thing just smacks of the usual "I'm a big corporation so I don't have to behave in an acceptable way because I can throw money at the issue, instead!" It pissed me off when the financial industry did it, and it pisses me off when Wal-Mart does it.

If a corporation is a "person," then their actions should be judged on a moral basis in the same fashion as a person's would. If I treated someone the way Wal-Mart treats their employees (not just he women - all of them), then I would be a champion douche.

And while being a douche is not illegal, their span of control is wide enough that such behavior should be addressed.

Eric said...

Janiece, I agree that a virtual "person" should be subject to liability as a person would be--I used to be under the impression that was part of the entire point of treating a corporation as a person, though recent history suggests I was completely mistaken about that.

I wish I had the time and energy to read the whole 170-page 9th Circuit opinion that the SCOTUS will be taking up. I mostly skimmed the dissent, mainly because that's where my prejudices are: I'm having a hard time with the idea that six plaintiffs armed with a hundred-something affidavits effectively represent one-and-a-half million people, some of whom (it turns out) are potentially defendants. (Some of the plaintiffs claiming they were denied promotions because of Wal-Mart's sexism were, it turns out, directly denied those promotions by female managers--this doesn't mean those managers weren't directed to implement sexist policies by Wal-Mart, but it potentially creates the odd situation where those class-members are either defense witnesses (Wal-Mart argues the plaintiffs were denied promotions for lawful reasons and calls these class members to testify to such) or defendants (Wal-Mart concedes there may have been sexist policies but argues they were implemented by regional and local stores and any beef is with those local managers; i.e. the "not me, her" defense)).

It's one thing when one person or a few people certify that they can represent ten thousand people who bought the same allegedly-defective model of truck from the same manufacturer. That's the sort of thing class action suits are really designed for. This doesn't appear to be that, however, this looks an awful lot like overreaching with a big potential to prejudice some legitimate claims while inventing claims for others (Wal-Mart claims stores are given wide latitude with employment decisions to individual stores; if a woman works for a "good" Wal-Mart and advances through the ranks to the top management position her ability and experience merits, should she receive windfall damages because the company as a whole discriminates elsewhere?). I did catch the part in the dissent that points out that in certifying the class, the District Court had to accept the premise that each single affidavit filed by the plaintiffs was an adequate representation of 12,000 potentially injured parties. I just have difficulty with that, and the fact that I'd like to see Wal-Mart fall off the face of the planet for all sorts of reasons (e.g. dead peasant insurance, destroying neighborhood retail, desecrating graves) doesn't change that.

That said, I don't want to categorically say the District Court and 9th Circuit COA were wrong.

But what I'd really hate would be if the plaintiffs overreached and ended up making bad law at the SCOTUS. The Roberts Court could use this as an opportunity to read the Federal Rules of Civil Procedure so narrowly as to virtually kill class action suits, f'r'instance.

Janiece said...

Eric, I have the same concerns, and you know I have a strong belief in the rule of law - I want SCOTUS to make a fair and lawful decision here, for everyone's benefit - and I want people to be able to continue to sue on a class action basis where appropriate.

But I also want Wal-Mart to die in a fire. And take Justice Scalia with them.

Random Michelle K said...

I personally avoid setting foot in Wal Mart if I can at all help it, so I would love to see Wal Mart get the smackdown. But only for the right reasons.

But I do have to wonder how a court that ruled that corporations have a right to free speech (ptooey) could then claim that these same corporations are protected for their behavior because they are corporations and not people.

tom said...

as for a class too big to sue...
what about the smokers class actions THAT was a shyte load of plaintiffs.
But according to my reading of things it's gonna be a 5-4 against the plainitffs as a class...

WendyB_09 said...

What Eric said.

I'll weigh in more when I get home tonight.

beatrice in Paris said...

Thanks, Janiece and Eric for summarizing this case for me.

I wish those middle class people who can afford NOT to go to Walmart would STOP going to Walmart. So many Americans in the middle class are afraid of falling into the lower class, when they should be boycotting these SOBs.

Gypsy Chaos said...

Thank you Eric; I appreciate your clarifications. You've reinforced a thought I've had while reading about this case.
It seems that this is being treated as black or white: class action with 1.5M OR deny class action status. Aren't there alternatives? Is it even possible for the SCOTUS to rule that the class is too big and the class needs to be subdivided? Maybe on the basis of job titles?
I fear that a denial of class action status might cause significant numbers of brains to implode, leading to further reduction in the quantity of critical thinkers.
I'm unemployed - lost a great job with excellent benefits and high salary. Our family income dropped by ~60%. I will not step inside a WalMart or Sam's Club. We WILL find a way to avoid that step. {Fortunately, my DH kept his job and now covers all benefits instead of our previous split.}