intricacy of the rule 23 we would torture them for days if not weeks and we just had 14 minutes clear concise and actually complete analysis of the issue. [laughter] and a bit of additional work with adam klein on this. related issues adam is a partner of goldman and ms. fisher of the firm classaction practice group. shrek islamic to the prosecution of class-action and the impact of litigation discrimination and is testifying in congress and has been involved in the class action for a number of years and he's going to provide analysis on some of the related issues with respect to the class action. please welcome adam klein. [applause] >> the problem last is of a took a good so i will laugh at that. one of the issues that is presented and when you heard is

to what extent does the court consider the issue of rule 23 classification as a question of abstract conduct verses the merits of the case versus what the practical effects of the decision are. to make the point and it has been made before but i will make it again it is the case involving a low-wage workers, women who are the victims of discrimination as the fury in the case. the question is can they prosecute the case in an economically rational way? it's a tale of two cities or perhaps bush v. gore construct in that on the one hand, you have the impossible result of any number -- if you number of women who could conceivably prosecutor individual cases and not be able to do one thing about the systemic problems that they have encountered of wal-mart. on the other hand, you have this gigantic potential exposure that the defense will complain about and say this is about lawyers trying to get money and so that's where the extreme

descriptions of the same case and in that construct as the supreme court to? what is the issue before the court? that is a very critical point. this is not a decision that relates to the merits. with the plaintiffs are right or wrong is irrelevant to the question will be decided. what is the issue is whether the elements of the rule are satisfied and in a particular whether there is the right to proceed under rule 23 b to which was discussed. there the question is what are they actually seeking to obtain? what the plaintiffs will tell you, and i know the lawyers very well, what they will tell you is they are trying to change the practice is harming their client. it is the primary objective of the litigation. the fact that there is an economic value is secondary to the primary objective of changing the company so they can eradicate the discriminatory practices in the company.

that is the objective of the litigation. one of the examples of a further point is the big wave of the right of the damages to vignette so no one in the plaintiffs will be entitled to any compensatory damages or limited to the back images and potentially punitive damages. i note punitive damages, what this comes down to is our punitive damages or compensatory damages is the aggregate value of back pay superior to their interest in seeking injunctive relief. that's the discussion the would be held before the supreme court. and what's interesting is that if the plaintiffs face the court, the objective is in giunta to eradicate the discrimination and in fact that is the primary objective. that can be satisfied. just to make the point in the ninth circuit, the court certified in giunta relief class and i don't mean to get too technical but the ninth circuit

certified the primary objective of the litigation under rule 23 for the active in junction with no request for the company separate images and so on the right to proceed to obtain punitive damages was to the court and the question is can that be certified have decertify equitable relief but not certify the right of punitive damages? if you will have a certified punitive damages claim it's not worth anything. would be worth some amount of money for individuals victim's that come forward but in the aggregate on behalf of the class hydraulic pressure complained about doesn't exist. some of the ninth circuit did is they try to address the defendant's primary argument against certification you have this exposure in the punitive damages and some extent on the back pay damages the ninth circuit said we can fix that.

we can simply certified the class under be to for equitable injunctive and put off the request for the punitive damages for a different day and maybe get certified, maybe you don't, not important at this stage in the case. the question i was asked to comment about is common issues and for what the case is about in terms of supporting, now the rule 23 that the very important construct and here you have a question of whether the practice is that the plaintiffs articulate is subjectivity, the stereotyping, the causal link between those observed phenomena and compensation promotions decisions. can you draw the line, is there enough of a nexus between the stereotyping between the decision making and the observed disparities in terms of compensation and promotion. that's the question the call bridging the gap. bridging the gap in the individual experiences of the plaintiffs and those of women

who came forward in the support of the classification and whether that information from those experiences can be generalized in the class certification on the commonality. that's the essential case when you put aside this other point about sort of the anaya lipitor damages or effects of punitive damages and aggregation of economic claims, so that's the issue that the court will tackle the the argument. it will be very interesting to see how that plays out. one of the points, money and driving the case it's a function, sort of obvious but it's a function of the size of the case and the size of the company. so, again, this is a tale of two cities point you have individual class members who earn relatively modest amounts of money, seven, ten, $12 an hour, the individual claims have very modest value of the individual level, a lot of money.

that is nearly a size of the company and i don't think that in and of itself is going to be a fact the court will rely on or consider to be determined. so one other small point in giunta at versus the injury, so the question as well, what happens if there is a finding of the classification of finding liability? do individual class members get a check? perhaps, perhaps not. the reality is each individual class member may or may not have an injury effect and may or may not be entitled to an actor will check to compensate them for the potential claims discrimination. again, going back to the point, the main point of the litigation is to eradicate the systemic discrimination within wal-mart, to fix the practices causing harm. the secondary question is will any individual class member be entitled to the check at the end of the day that's to be determined and not before the court. thank you. [applause]

>> thank you very much for an excellent presentation and also for staying on time, which i'm going to also try to do. my rule is to ask a couple questions of the panel and i'm going to keep it to two questions and open up to questions from you all and the first question going to direct to marshal that everybody is free to china in on it and this is to do if the commonality. adam klein was just talking about if you could say a little bit more about the common allegation of the sex discrimination through the company and why that's appropriate for the class treatment as opposed to individual cases and with those allegations are. >> well, again, what is at issue in the wal-mart case is so important because the nature of

the discrimination that is being complained of is something that is replicated in many companies across the country. what wal-mart is basically arguing is first of all, that given the nature of this issue of commonality there shouldn't be a class action at all and so i do want to get to your specific question, but that is what is really going down to verses the second issue of well, should it be this b to class or b3 class where everybody can opt out. but the supreme court specifically asks is a class-action allowed at all and that does get to the commonality of the point. what it basically is wal-mart's nationwide policy that managers

all across the country can decide what they are going to pay their employees and how they are going to promote their employees based on their own discretion with virtually no real guidance. no kind of standards that would support nondiscriminatory and fair decision making. it's contrast in the wal-mart case. quite specific policy about temperature, for example. managers are told they have to keep the stores at a specific temperature and they aren't told find a comfortable temperature that seems to work for you and then set thermometer in your

store to fit what you think is right. so when it comes to pay and promotion policies even if you have to post the job opening wal-mart says up to you, you do that how you want to do it. that nationwide conscious decision on wal-mart's part to lead such extraordinary discretion to its individual managers is what is at the nub of the case is the policy being complained of that affects the whole nationwide class of women.

when that kind of discretion operates in a way that leads to fairness, employers can continue to follow that kind of policy, that as the experts say that is not usually the case in today's society and world and that is where all of the sworn declarations and the individual stories of the plaintiffs become so critical. they are describing, and discriminatory practices all over the country of discounting and why women are working to begin with, discounting their commitment to the job and, of assuming that they shouldn't be paid the same as men and they will not be as good managers, and being allowed to use those by a cs unchecked in the way

that they make decisions and that is the common policy that wal-mart has adopted to allow those kind of by a cease to operate and what the plaintiffs are seeking the opportunity to them has published in court as something that truly exists across the country affecting all of these women. so i do want to underscore its of the plaintiffs to prove all this. but that they be allowed to shoulder the burden on behalf of all of the employees affected by this headquarters policy that is up to all the managers for all of these employees to decide how they're going to make decisions on whenever the grounds they choose. i happened to do call in radio

show and the wal-mart case became the president in the context of women in the workplace now still nationwide women are only earning about 77 cents on every dollar per man and the regional section about the wages even more is in the 60-cent range from 64 cents. so wal-mart according to the evidence is even worse than its statistics and its largest competitors in the retail area itself. so the common thread here is this kind of go do it your way coupled with of the underlining discrimination and stereotyping plaintiffs have alleged have demonstrated to some degree but have to prove him the common

practice that has to change and wal-mart and that is the nub of what is that the issue and in a call in show a number of male so managers at wal-mart call them and i'm thinking are they going to say oh no it was fairfax that isn't what happened and they said actually it was and is as the case with wal-mart the women got hired evaluation for the work even though they were not getting the same pay and they were not getting the same commotion and with respect to the male managers who were calling and they were reaffirming the kind of what ever, whatever your reason as an old boys' club if you want to promote your pal that was okay and they saw a lot of fairness against very hard working women had wal-mart.

it's that discretion that is allowed when there is also as the alleged by the plaintiffs so much stereotyping and discrimination that is the common practice as part of the case here. >> thank you for providing allegation to the background. use a procedure the someone to direct it to you, andrew in terms of the class certification issues and i think you presented a strong and argument for some of the difficulties in the case and it also seems to me those are arguments that apply to employment discrimination cases generally as opposed to just the wal-mart case and so one of the issues i think as present in this case if this was supreme court holds of the wal-mart case is not a reprieve for plus

certification whether there would also mean there couldn't be any more employment discrimination class-action and the rationale for that would be given that there's nothing in the rules that suggest they should be treated and as the professor noted the class action entities to craughwell around civil rights class actions employment discrimination is much like this one will if he could address that issue of whether the ability to certify class actions in general. >> my first answer to it is the unemployment discrimination class-action will have wal-mart regardless of the court rules. here's the thing about class-action in general, they are remarkably versatile. they get used in environmental cases and antitrust cases, anti-discrimination cases, product liability cases and that is all without one rolph 23, just as i describe it to you all of their. so will 23 can be modified by a

sort of what different subject areas in the law. some professors taught me something that's really important, rule 23 was brought about really a lot of it result of the series of the desegregation cases but in the 1960's and as the professor discard the 1966 advisory committee which are basically the people who helped draft the rules were incredibly impressed at how effective the class action was at effecting the desegregation overtime. it was a rorabaugh device for them particularly injunctive relief. the court orders to force the segregation were involved so it's got a long story and i don't think anyone on the court is aware of that or wants to spit in the face of that history. i don't think that's part of the issue here at all. what is at issue here is the way that the wal-mart class action has been set up if you allow it to be certified the way it is is it an effective tool for an aggregate relief for the class members and that is the question

of any given class action. and i think the supreme court has before it the opportunity to clarify a few open questions in a couple of different areas that wouldn't in any way destroy the employment discrimination action. would they be harder to bring the end of the firm on march verses duke's? of course the firm wal-mart versus duke's you're going to have it comparatively easy in the employment discrimination field and that's not necessarily a bad thing that it was a question however you want to make it, but here's what happens i think if the wind up basically ruling in wal-mart's fever. first on the 23 b2 issue the question will become a large monetary damages and call them back pay and then certify in the interim to relieve dhaka and if the supreme court says no to that that doesn't mean that wal-mart, you know, will be immune from class-action is going forward. it means it will face a lot of class actions in the bucket when people are bringing class-action

seeking monetary damages the have to prove the common issues predominate and they also have to prove the class action is a superior way of bringing the case to any other way. terrapin plus sections certified under rule 23 bea three. it's not terribly hard to do. i don't think the supreme court is for the ruling one way or the other with the specific bartlett to what it's going to do is ask whether on the class of the case commonality got mixed and here's a couple reasons why the supreme court could rule in this case the commonality wasn't met without necessarily undermining what we doherty talked about in the real nub of this issue to sharpen the case a little. here's what they're facing we have the class that stands 13 years during the policies which changed. 3400 stores which is as we have heard have managers who are given close to unfettered discretion and how they make decisions. 53 departments per store, 170

different classifications of jobs within wal-mart itself from the duke all the way it to susan chambers the executive vice president in charge of global personnel. within that there's going to be a number of different issues that probably a knife and the supreme court will be able to say i think that there isn't a common question among all of these women wear if you broke it down into the subclasses, smaller groups in the larger groups you can find the united issues. if you break it down as i mentioned that there there are 41 retail regions, let's assume the executive vice president is in charge of each retail region and the do have their own vp set up some policies then you have a common question with the policy that the executive vice president said discriminatory. so what goes down to on that and is whether or not the supreme court will rule you can have

something brought or whether a narrow class would have been more appropriate and the narrow class's don't mean plus actions don't exist they may mean they are less profitable to bring, but you are still going to have plenty of economic incentives to do it. the final issue none of us talked about yet but the supreme court is going to wrestle with as well and i want to bring it up very briefly and ensure your frattali with this in litigation in general there's no such thing as an independent expert in litigation, each high years to their own points and we talk about what the experts say. for the most part we talk about the experts on whichever side we happen to represent and what we paid them to say. and those experts tend to disagree in this case. we have statistical experts for the plaintiffs who say that it's very easy to show you, the fact some even the broadly defined class. wal-mart has got experts of its own and they are saying something very different, and one of the things that has come out in front of the ninth circuit that it had to decide and it's likely to be an issue the supreme court has to decide

is how much do you have to decide and which expert is right before you certified the class. can you just say well, the experts disagree so we will put it to the jury, or do you have to say at this stage, you know, when we die to the experts methods, one side is reliable, one side doesn't seem to be, and that's when to help influence our decision. various of what courts are split on that question and that's one of the things that has been briefed in front of the supreme court it is a fairly technical issue but i actually think it's been to be one of the more important issues. so the short answer, employment discrimination class-action still exist. >> all right. does anybody else -- >> just a couple of comments and reaction. you mentioned the notion of back pay and the plaintiffs call them, you know, damages that somehow you can squeeze your way into the rule 23 b3 class. i mean i think there is a real distinction between the type of monetary relief that you are

seeking. there are back pay, there's compensatory damages, tenet reid images, and so the back pay is sort of very different than the damages and it isn't as if you can kind of conflict those terms and call back pay damages or that there is some kind of a los going on where the plaintiffs are calling back pay damages. those are treated very differently. they have a very different history in terms of the courts and acceptance of them under the b2 plus we want to be careful not to complete those terms, that can be concerning rather than to clarify the difference between then and why the difference matters. the other thing i would add about the b2 certification you mentioned i would beg to differ. i think getting the case certified under whether it is the regulatory b2 or b3 is different, it's difficult. it's more difficult to get the case certified under this b3 bucket. that requires your show that

common questions predominate over the individual ones. you have to show the class action is the most superior over the dispute and it requires you have to put out individualized notice to the class members that can be extremely expensive and that is it can bar the planned council from being able to bring a class-action all because it can be a great exporting cost and you might not be able to pursue your plan as a class action, so i think there is a little bit of -- i think it is in the notion that well, don't worry if you don't get certified under this bucket you still have the b3 bucket, there's disadvantages to that in fact those disadvantages may be so severe that you find people not able to bring their civil rights cases at all. >> just as a follow-up, one thing that hasn't been discussed is what has the supreme court done in the class action employment discrimination cases?

it is pretty good and i will explain what i mean by that. other than to reasons in the decision. and the disparate impact and so the distinction here is critical. intentional discrimination claim and the claim that doesn't require that and i see what is critical here and again one of the questions added to the panel is can you predict what's going to happen? and secures the route to success of the plant at. the route of success and this is my thinking is that if you look at the claims they have both of the disparate impact and the treatment claims. the disparate impact claim is the policy practice setting the net promotion using subjective decision making. there is some oversight and the claim that the selection criteria has been challenged, and the question becomes is there a special violation it would be the answer to that?

statistically promotion. that isn't terribly challenging. we are not -- the court would be concerned with how persuasive the shortfalls are just simply is there upon the special violation the title vii, by way of the statistical shortfall. if that's true, if the plant is to make out that claim then they win on the merit unless the defendant shows it is related and consistent that can be challenging for wal-mart. the business of the argument would have to be that our delegation of authority to the individual managers in terms of setting the pay and promotion is appropriate is a required business practice. we all know that simply isn't true. it's just illogical but putting that aside, that all sound like the common issues of the fact, doesn't it? it is a typical class action in the realm we've already seen the supreme court approved in cases

like chicago. and the answer the question is what happens to the case? what happens to the case is that you get largely the same result, you get the equitable incentives relief, the liability, you get a back pay award for the agreed class members and no availability damages. they already we've it. no right to punitive damages the ninth circuit didn't so the move that it's not there any way. it's not terribly consequential so in my view the secret hidden within in that construct is to really focus on attacking the policy practices under the discriminant and the legal impact theory and think the point that the decision on the pay and promotion is a neutral policy practice to in the criteria that can be challenged under title vii. that's a true statement and if that's true that should be

certifiable. >> thank you. and just so that andrew doesn't like the only contrary and pierre, let me just say briefly that i think it would be a mistake to treat the case of involved in the potential discrimination impact and the balto as president in the case, that is kind of a loose term. this is the case of the potential discrimination and the allegations are all that wal-mart intentionally discriminate not by accident which is really with the disparate impact is. and it might strategically make friends of the impact case but i think they would render the trouble very quickly thereafter. with questions please identify yourself and i understand the microphones will come to you as well. go ahead. we are here in the first row. ..

i think i would probably narrow their record in having decided in favor of plaintiffs in employment discrimination cases a bit more than you described. i think that where they have been willing to allow cases to go forward in particular is where retaliation is at stake,

where someone has tried to vindicate their rights or get the antidiscrimination law enforced, and for the trying, they have been fired, their pay was demoted, or they've been retaliated against in other ways. while retaliation can have some class impact, it is by and large a person-by-person manifestation of an employer's hostility to discrimination protections, and in that person-by-person context i think the court has been willing to recognize that the very integrity of the civil rights law would be underminded entirely if retaliation were

allowed to go forward. i think that when we go much past that, we don't see as much of the concern for what is at risk and at stake even in an individual case, and i think the lily case was a reflection of that where it was a paid discrimination case, and in that case it was one woman in a class-action, but the implications were very broad for people bringing paid discrimination cases over time. i want to go back to make two very quick points. first of all that much of what seems to take you aback when you hear about wal-mart, about how many women, how much money, how many regions is by how big

wal-mart itself is. one of the things -- not because the legal issues that are being raised in the case are that different from employers of all different sizes, but just because they get magnified when you are as big as wal-mart is, so one of the big concerns is if the supreme court lets wal-mart out of the class-action responsibility, to be held accountable based on the claims, then are we, and now you're too big to be held accountable world, or are we in a situation where the principles that will be applied to wal-mart then get applied and magnified to employers of all different stores of all different sizes, and that is, i think, at the end

of the day, one of the greatest concerns with respect to wal-mart, and the second thing i want to say very quickly is as we're talking about the back pay, when you have so many women employed, even of their relatively small claims per woman, it adds up to a very staggering sum given wal-mart's size. as andrew said, we don't have to worry too much about wal-mart because it has an awfully deep pocket, and the amount at stake even though it seems staggering to the likes of me is actually not very much money in the greater scheme of things for wal-mart. the other major thing at issue in this case is will there ever be an incentive for employers to

clean up their act before they are sued? to believe that they could be held responsible in a big lawsuit for the unequal pay that they have been benefiting from all these years because that is at the end of the day what pay discrimination means. if the plaintiffs can prove their case, wal-mart has been pocketing salary that they should have been paying to all these women all these years, or should it simply be they should sit back and if a few women ever can get it together to sue them in some region somewhere in some store on some narrow issue sometime, they'll pay up in the future then, but in the meantime, it's way more economically sensible to just

keep saving that salary that if plaintiffs can prove should have been paid, that they really denied the women and the women's families all those years. >> i would like to hop in for one. i think she addressed one-half of the question asked and the other half very briefly. the supreme court decision from two days ago involving a security fraud class-action was done at the motion to dismiss. there's a slight of case of different rules, so there's not much of an effect going forward, and that's just because you had asked about both of them. >> paula, workplace fairness. my question is addressed to adam. as you said, the merits are not before the supreme court in this case, but we all know that the

battle is typically over class certification, and the battle in this case has been going on for over ten years. if the court certifies the class in the way the plaintiffs are requesting, what happens now? does a company with a history of aggressive litigation like wal-mart send the next 10 years fighting the merits, or does the fact it's gist back wages and relief mean they hash out formulas to figure out these issues and look to settle the case relatively soon? >> that's an excellent question, hard to answer. you know, if history is a guide add all suggests they'll continue to fight. i think this is a company, for whatever reason, feels strongly they have a defense to the case, and they're basically fighting a fight not just for their own benefit, but for other corporate employers as well. why they think to take on that, i'm not sure, but an explanation

from my vantage point anyway, not that i have inside information, but any sense is that they've done a lot -- taken a lot of efforts strategically and tactically to undermind the class in the class-action and on the merits. it's interesting how litigation works out sometimes. the case certified was actually not the class presented by the plaintiffs. they wanted to include former employees as part of the class. they wanted the pro mages claims to be certified, and they weren't. there's issues the plaintiffs already lost as well. the other reality is that there's such a substantial amount of money at the state that my sense is that they will be very concerned about that exposure and think to continue to fight as a negotiating tactic as well. >> let's see here --

>> oh, i'm heidi hartman, institute for women's policy institute. i am a labor economist, so now i'm confused between what andrew and adam said, but andrew, you were implying the class is 1.6 million and half of them no longer work at wal-mart and therefore they are only in it for the money. i took that to be a delegitimizing comment and therefore this class is, you know, a bunch of grubby women in it for the money. i would like to suggest the people who are past employees and no longer at wal-mart, given how big an employer wal-mart is, they have -- and where they are located, often in rural areas where there's a monopoly position by driving out the small retail businesses, given women who are low paid and in retail tend to have high turnover rates and wal-mart is

the big employer, they likely already over the course of 10-15 years worked at wal-mart many times. they are likely to be interested in the relief because should they work at wal-mart again, which most of them have probably already done, you know, they want promotion and good policies there. i wouldn't dismiss the half of the case that supposedly has no interest in the relief. given where wal-mart is located, they very much have an interest in that relief. >> just to answer that briefly, this is a typical abstractionism problem that courts engage in sometimes where they want to consider the hypothetical interest of the hypothetical wal-mart employee. well, they can't interview the person or group or whatever, so they have the guess at the interests. what you said is exactly right, that they do have a continuing

interest and within corporate america. i think that's the social policy point that has to be made and not just sort of abstract view of what a hypothetical absent class member would think. >> well -- >> go ahead, quickly. >> two brief points since it was addressed primarily to me. the first of which is -- [laughter] i apologize if it was delegitimizing. that was not the sent to say the women are only in it for nickel and dimes. one is for relief and the other is for money relief and that including back pay or compensatory damages, and given the women don't have standing currently to seek relief, the only relief available to them in this case right now is the monetary relief, and at that point when half your class is only in this particular case,

that's going to effect which way i think the predominance analysis goes whether it's primarily injunction or monetary. i think any human being who wants corporations not discriminatory has an interest, but the recognized are the ones left standing before the court, and in this case, those are only the current employees of wal-mart. >> that's over the passage of time. >> it is. >> second row here. go ahead. >> thank you, professor, you talked a little bit about how the court will look at fairness to the class members, do they get adequate notice, a chance to opt out. does the court look at the certification stage of fairness to the defendant about whether it's just impossible to defend against a class that gets too big? >> absolutely. the, i mean, the court is going to look at fairness to everybody, including the defendant, and one of the things in talking about class-action, sometimes we talk about this is

only to the benefit of the plaintiffs which is actually not true. it's really to the benefit of kind of many times the defendant. they may initially sort of push back as class certification states, but ultimately, if you is a class-action, it works well for the plaintiffs because and the entire system. the plaintiffs are strength in numbers, and so they work collectively, able to bring claims if they have small claims or not a lot of resources, they can come together, but it's also good for the civil justice system because now you don't have the inefficiency of one case after the next case after the next, all these individual cases that really share a dmon bond. they wsh common bond all sthairing the same allegedly policy. it makes sense to the judges who are totally swamped in their dockets and the parties not to litigate each individual case over and over again, but, in fact, to do this as one

collective action, we solve this -- resolve this once and for all. that's also good for the defendant. the defendant can choose to settle a class-action or litigate it, but often it will settle, and that's because they can within one case resolve all of these issues that are in common, so it's actually to the benefit of the defendant often to have this resolved as a class action so that they are not stuck with each of these individual 1.5 million women, you know, bringing up the same issue over and over again. it's definitely helpful to all the parties to keep the class-action mechanism alive and well, and i do think the court looks at, you know, is this fair to the defendant? there are many -- i mean, there are lots of components to the rule looking out not only for the class members, but for the defendant. that's why it's a difficult standard to meet. that's why you have to meet all

the criteria of rule 23a and one of 23b. i think the issue here is let's not make it so hard that we now shut down the ability for people to collectively have their civil rights enforced and move forward. >> if i may another quick point i think we haven't actually underscored so far is that much of this balancing and the waking of the experts and whether at the end of the day there was a credible enough case made by the plaintiffs about the comalty of -- commonality of the issues by such a big employer was made by the district court, and districts courts are designed to find the fact, and, yes, there's a question what's the legal principle that ultimately the

supreme court will decide, but one concern is that the supreme court, it's not the role of the supreme court to be deciding after the district court already looked at the experts and already looked at wal-mart's experts and the plaintiff's experts and chose to credit the plaintiffs' experts in this case about the common practices and the effect commonality that those factual findings were taken and given respect by the court of appeals and are supposed to form the underpinning of the supreme court as well, so the balancing of that, how unfair this might be to the defendant versus how fair this maybe to the plaintiffs, how much are the issues ultimately common issues versus very discreet differences that are unrelated region to region, manager to manager, those are the kinds of things we

actually have a quite extensive factual record on, and that is a record that is supposed to be the basis upon which the ultimate applicability of the legal principles will apply. the supreme court is not supposed to be trying to figure out the facts as if the district court hadn't already, through a very extensive proceeding, decided having heard them, listened to the experts, and evaluated and weighed them. >> if i may add my half cent. it's important that's got lost a little bit in the case. wal-mart makes it sound like they want to defend the cases individually, but they do not prefer 500,000 individual cases to a class-action. there's evidence on how class-actions settle. the other part that has not been

told is that when cases -- when class actions are desert mid, they don't turn into individual cases, they go away, and that's what wal-mart is hoping for in that. >> hi, acs, adam brought this up, and i'm not sure how relevant it is to the ultimate disposition of the case by the supreme court, and this relates to what heidi had to say about the turnover at wal-mart. andrew said something about how the class itself is made up of current employees and former employees, i guess i would suspect composition of that class changed a lot to wal-mart's benefit to stretch the case out as long as they can so the issues of commonality are harder to make. how relatively vaunt is that to this discussion? will the court look at that? anyway, it seems to me to be an important point not brought out entirely, and i'm wondering if you could expand on it a little

bit. >> yeah. i'm happy to. this is an interesting question. the circuit courts struggled with what is the essential interest in the case? what is it that the plaintiffs are trying to achieve, and often times in the ninth circuit, the focus is what the plaintiffs say in their complaints which is paying injunction relief so the plaintiffs in the second and ninth circuit had different reiterations, but the same basic concept, what is the thrust of the case? when you have former employees comprising a class, that interest arose, that argument is undermind. hypothetically an entire class of former employees, that's the entire case. well, for them to argue the main octoberive is to eradicate and fix policies and practices that cause discrimination, that's a plausible argument.

i go back to the earlier point. you know, what wal-mart has done is strategic and tactical in defending this case in litigation, and that's one example where they can now argue more forcefully that the percentage of former employees has risen to a point where plaintiffs' statement is to eradicate discrimination, obtain injunctions, and that is undermind. it's a talking point they can make. >> can i make another very, very quick point about that? that is it's always an axim that the ultimate strategy of the defendant is to just string the case out as long as possible hoping the plaintiffs will run out of money, run out of time, run out of interest, run out of connection not ultimate matter, and the point of a class action is to be sure that when the plaintiffs are appropriately raising an issue that effects

the broad class, that those class interests are actually taken into account and protected, so there may be a shift because of the passage of 10 years whereas when it started, the original plaintiffs were all at wal-mart, and over time fewer and fewer of them are, but the class is ultimately going to be protected by those who remain, and that's where i want to go back to the injunktive relief and so important going forward and go back again to lily ledbetter. she brought the case on her own at the end of her employment history. had that been a class action, not only would she have gotten some of the back pay she was

entitled to, but other women at goodyear whose interest -- she was never certified to represent, would have had their discrimination remedied too, and in her instance, the jury was so taken aback by the extremity of the discrimination that she described and that they found existed, that they actually did impose punitive damages against goodyear, so a class representative is certainly doing it on behalf of their own interests for sure, but the whole point of the class action is to protect the members of the class and those going forward who will be at wal-mart, and when you balance out the backpay, an issue in this case,

as compared to what the ultimate value is for all those women going forward into the future at wal-mart, the class action in the future interests dwarfs the amount of backpay that's at issue in wal-mart right now even though it seems like such a big number to us. >> i think we have time for one more question. >> i'm plaintiffs attorney. i tried to certify a class action that went to the third circuit and what happened is it was multiplaintiff instead. my question is obviously for any institutional change, this is the ideal mechanism because for discovery purposes, there's overbroad protections, and i'm wondering if anybody's ever done a statistical survey on how many motions to appeal.

what happens to one particular person never, every allows you to gather evidence sufficient to form the argument to do the statistical analysis, to create the institutional progress, so if you're talking about, you know, addressing an institutional reform in, you know, corporate wide, obviously the ideal mechanism is you have to preserve it. my question is do you have an ability to fiber kate the various class members into different types of class sizes depending on whether it's fitting can they preserve one side, the current employees, for example, where the institutional issues do predominate over the people who don't work there anymore perhaps. not that you can see the argument, but i wonder if that's an option. >> well, at the supreme court, they can do almost anything. [laughter] rule 23 does not prohibit an appellate court to redefining a

class to another sizable class. they do it all the time under rule 23f. there's nothing prohibiting the supreme court for saying as defined as this problem is, let's carve it and redefine it slightly to have a class that's certifiable or desert my this class and send it down with certain classes. that's well within the power of the supreme court. adam may have a different take on that. >> no, no, i agree. it's like the game of life. everybody has a retirement slot. there's lots of paths to get there, but any number of manageability options and the issues class under c4 which the ninth circuit did, but didn't lay out explicitly. remember, rule 23 is a management tool to permit the court to efficiently hear a case, that's the construct.

it isn't to give it advantage to one side or the other, so there are plenty of management tools built into rule 23 and more broadly courts rule out to hear cases and manage cases in ways they see fit, but there are plenty solutions to the problems presented in this case. >> yeah, and i think that goes to the question that's going to be before the court in terms of which test do they ultimately decide to use in figuring out the monetary damages predominating over the rest of the case or the declarety relief that it's important to keep that discretion, give courts discretion to make those decisions that there are tons of options that are available, and a number of courts have sort of crafted class-actions in different ways only because they have the discretion to do so, and so you have to be careful that some of the court of appeals depending on the approach they used or how they decide to define predominance,

some are more narrow than others, and if they go with a narrow test, it cuts off the ability for judges to exercise discretion and make sure that they, in fact, can be responsive to each case that comes before it, so that's going to be an important thing to watch out for in this case. >> i do want to go back to a comment, suzanne, about the fact you made that b2 classes were designed for civil rights statutes very much in mind to deal with the broad ultimately recognizable class nature of discrimination, and in the idea of courts can fashion a lot of things in order to make them practice practical, the point of the class-action in a civil rights case in particular and using the b2 class in specific was to facilitate dealing with that systemic change. that is what title vii framers

and congress had in mind, and that is what the rule 23b, one of its major purposes was to begin with, so in deciding this case, it's not as if the supreme court is without only gigs to look at what the intent was of rule 23b and rule 23b2 in particular, and rule 23a because wal-mart said there shouldn't be any class-action here at all. let's not forget, but in a civil rights class in particular when we are dealing with the nature of discrimination, if somebody is discriminated on the basis of race or sex, for example, that's a characteristic that can go more broadly than just they, themselves, obviously. it's all the more important to think about why the framers of b2 and its intersection with title vii would intend that this

commonty and systemic approach was the point of why the law was structured the way it was, and that, i think, is ultimately part of what makes this case so important, whether that intent and purpose of the law is going to be realized by the supreme court and respected by the supreme court in its decision. >> and that we will know soon enough. the case will be argued on tuesday. if you're planning to go and don't have a seat, you want to get there early, and i understand the weather for sleeping outside is going to be pretty good. [laughter] this is going to be a very -- this is an incredibly important, and as you can tell, a very difficult case. i know there's a lot of different routes the supreme court might take in that, but hopefully the panel gave you more up sight to the complexities and the importance of the case. i thank you for coming and the panelists as well. [applause]