Women v. Men, The Class Action Suit?

As we move from spring into early summer, the season turns to watching the U.S. Supreme Court render its final decisions of the term. Among the most-anticipated this session was their decision in Wal-Mart v. Dukes, a potentially massive class action suit that has had ripple effects throughout our economy.

The Court, issuing what was in effect a two-part decision, struck down the Ninth Circuit’s certification of the class of female employees. It was in two parts because, while the nine justices were unanimous in their vacating of one of the procedural issues, they were split on the overall question of whether the total class ought to be certified. In the usual bit of kabuki theater, left-wing pundits decried the decision as a “blow for corporate privilege” while the right was talking about the importance of this decision to business.

But the decision is important to all of us, corporatists and capitalists alike.

Women, per se, are not a “class,” as that definition pertains to the rules underlying class action lawsuits. If anything else, this definition was an affirmation of individual rights — especially the individual right to sue someone else for the actual harms they may have caused them.

Women and men are each individually different. Each person has his or her own strengths and weaknesses, our own different experiences, our own attributes and deficiencies. What the High Court affirmed was the idea that for the class action suit to have merit, the so-called class of plaintiffs needed to have far more commonality in their experiences to merit a “class” for the purposes of the class action suit.

Essentially, all the class really had in common was that they were all women who were employed by Wal-Mart, and that wasn’t enough “glue” to hold the class together. It would be akin to someone filing a lawsuit on behalf of all women for discrimination by all men, an argument that might seem absurd on its face, but really isn’t when one considers the prevalence of class action lawsuits in today’s society.

What the High Court stated yesterday was very plain: in order for a class to proceed, you have to have some sort of real and verifiable nexus between the plaintiffs, some common actuality — like a VCR that habitually catches fire or drywall that causes mold. In this particular case, the plaintiffs’ attorneys weren’t relying on actual claims from the women in the class, but on sampling data and anecdotes. But because litigation is supposed to focus on real cases and controversies, samples and anecdotes simply won’t work.

In that regard, the case upholds one of the longest-standing principles in common-law jurisprudence: the idea that in order for a case to proceed, the plaintiff has to demonstrate that he or she was actually harmed by the person they are suing. Without that demonstration, there isn’t a controversy for the court to decide on. No controversy, no case.

While the Minority in Wal-Mart v. Dukes opposed the blanket overturning of the class in this particular case, they did not deny that, in general, plaintiffs are supposed to demonstrate actual harm.

Still, the biggest losers in yesterday’s decision weren’t trial attorneys. They were the mega-trial attorneys, the ones who make millions of dollars finding ever-more marginal classes of individuals to sue big corporations. Their bar for “clients” is being reset somewhat higher, and it’s going to make thousands of them rethink how they approach class-action lawsuits. This is a good thing for all of us — including potential plaintiffs — because the only real winners in these lawsuits are the lawyers themselves. They take the lion’s share of the awards, and the “class” gets coupons or some other paltry sum.

In the end, Ms. Dukes, the initial plaintiff in this case, still has a right to sue Wal-Mart for discrimination. In fact, she and others who have similar claims can still sue Wal-Mart as a class.  There are not only remedies at law for them, there remain a whole group of trial attorneys who will take on their case on a contingency basis (provided that the attorneys believe their stories hold water and have a reasonable chance of prevailing).

Her individual rights are affirmed — and while an individual woman or man may sue another women or man (or group of women or men) for discrimination or some other harm, we cannot sue each other for some general perceived harm.