Although the questions were flying in both directions yesterday, as usual for the Supreme Court, the tone of the Justices’ interaction suggested that Wal-Mart has the edge over the plaintiffs.  As others have reported, Justices Kennedy and Scalia were quite skeptical of the plaintiffs’ theory that store-by-store discretion could be characterized as a common policy subject to a class challenge.  But the argument went well beyond that.  Two particularly interesting items:

1.   First, there seemed to be a confluence of concerns between the more and less conservative Justices over the question of due process.  Several of the more conservative members expressed concern about the prospect that Wal-Mart would be denied the opportunity to present individual defenses to individual plaintiffs’ claims.  That was interesting because the Justices granted certiorari on only two of the three questions Wal-Mart had presented, denying cert as to Wal-Mart’s due process argument.  But it figured prominently yesterday.

The less conservative Justices also had concerns about the due process implications of the Ninth Circuit’s affirmance of the class, but from the perspective of absent class members. hundreds of thousands of whom would be chained to the named plaintiffs and this case (a theme then picked up, somewhat surprisingly, by Chief Justice Roberts).  One wonders whether these due process concerns, though coming from different directions, might provide a unifying theme that dictates the outcome.

2. Justice Sotomayor suggested early on that perhaps the only real problem with the certified class was the presence of back pay claims, a point that Justice Ginsburg then echoed.  Justice Sotomayor asked Wal-Mart’s counsel whether the class couldn’t be saved as a classic Rule 23(b)(2) class, by trimming out the back pay claims and allowing plaintiffs to pursue only injuctive and declaratory relief.  Wal-Mart’s counsel, surprisingly, at first seemed to endorse the idea, before recovering and pointing to lingering issues about the adequacy and typicality of the named class members and their claims.

Other members of the Court seemed less interested in this latter idea, and it may be that the perceived lack of a single, centralized, common policy will be enough to provoke a complete reversal of the Ninth Circuit and decertification of the class.  But Justice Sotomayor’s compromise suggestion seemed of interest to several members, and might turn out to be popular enough to limit the scope of the Court’s decision.

The bottom line: outright victory for the plaintiffs seems highly unlikely, but we will have to wait to see whether Wal-Mart wins a complete victory, or only half of one.


Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Mark W. Batten Mark W. Batten

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters…

Mark W. Batten is a partner in the Labor & Employment Law Department and co-head of the Class & Collective Actions Group.

Mark represents employers nationwide at all stages of complex employment litigation, including class and collective actions on wage and hour matters and discrimination claims. Ranked by Chambers USA, Mark is hailed as “a fabulous lawyer, handling interesting and complex cases.” Clients “highly recommend him to anyone seeking litigation counsel in the Boston area,” as well as note “he is responsive, pragmatic and team-oriented, and offers excellent legal advice.”

He assists clients with all aspects of employment policies and practices, including hiring, termination, leaves, accommodation of disabilities, and other matters. Mark also handles diverse civil litigation, including litigation of noncompetition agreements, ERISA matters, discrimination and wrongful termination litigation in federal and state courts; proceedings before the Massachusetts Commission Against Discrimination; wage and hour matters; and labor arbitrations. He is also an experienced appellate attorney both in employment cases and other civil litigation, handling appeals at all levels in the state courts and in the United States Courts of Appeals.

Mark also has substantial experience with traditional labor matters. He regularly represents employers in a variety of industries, including a number of newspaper and media companies, in collective bargaining, practice before the NLRB, labor arbitrations, union organizing campaigns, and day-to-day advice on administration of collective bargaining agreements. He regularly advises clients in both union and non-union settings on diligence matters in corporate acquisitions and financings. He also has experience on behalf of securities firms in arbitrations before the NASD and NYSE of customer and employee complaints.

Mark also practices on behalf of newspapers and other media in newsroom litigation, including libel defense and representation of reporters under subpoena, and has substantial experience in litigation involving access to sealed records and judicial proceedings on behalf of media companies.

Before joining Proskauer, Mark was a trial attorney in the Civil Division of the U.S. Department of Justice in Washington, where he was lead counsel in major litigation for over two dozen federal agencies, ranging from the U.S. Air Force, the CIA, and the U.S. Secret Service to the Department of Housing and Urban Development and the National Endowment for the Arts.

Mark regularly writes and lectures on employment-related matters, including, for instance, MCLE’s Representing Clients Before the Massachusetts Commission Against Discrimination.

In his spare time, Mark is an experienced computer programmer, conversant in C, C++, and other languages. He has ported software between computer operating systems and has published several commercial computer games.