Last week at the Court in Plain English

By Lisa Tucker
on Mar 31, 2011 at 3:40 pm

The Court was in the news this week:  In the forefront of everyone’s mind, the big oral argument in the Wal-Mart v. Dukes case (more on that in a minute).  But aside from Wal-Mart, the Court also issued opinions in two other cases (unanimously reversing the Ninth Circuit yet again) and dismissed one case as improvidently granted.  Let’s talk about them all.

First, if you are reading this entry, you are probably dying to discuss the Wal-Mart case.  If you read or heard anything about this case this week, you probably heard a popular sound bite:  the company is “too big” to be sued.  If you think that sounds strange – how can a company be too big to be sued? – you are right.  The issue in Wal-Mart is not that the company is too big, but that the class of plaintiffs may be.

Let me explain.  Wal-Mart, as a giant company, employs a lot of people, many of them  women.  Many women who work at different Wal-Mart stores across the country have complained that Wal-Mart paid them less than men with similar qualifications and job responsibilities and failed to promote them at the same rate as men.  In other words, they argue that Wal-Mart makes a company practice of gender discrimination.

Now, there are two possible ways that these women could sue.  The first way would be for each individual woman to bring her own independent lawsuit.  Of course, there are two significant problems with that approach:  First, the courts could be overwhelmed with lawsuits, all making similar arguments; second, many women who work at Wal-Mart probably cannot afford to hire an attorney to sue a corporate giant with an in-house legal department and the funds to pay as many lawyers as necessary.  Enter the class action, a legal device that would join all of the women together into one lawsuit brought by one set of lawyers who would eventually be paid out of any money that the women receives; after the lawyers are paid, the women would each get their share of the rest.  One more detail you should know about “classes”:  any potential plaintiff is free to “opt out” of the class, meaning that she could choose to bring her own suit if she so desired.

So, what’s the problem?  Doesn’t the class action seem like the obvious way to go for both sides?  The women do not have to figure out how to make their own individual claims, and the company doesn’t have to spend years defending against them all.

But here’s the thing:  Wal-Mart knows that if the case doesn’t go forward as a class action, there is a good chance that it will never have to defend against most of the individual claims, for exactly the reasons we just discussed.

Wal-Mart’s strategy, then?  Try to convince the courts that the case is not appropriate for a class action and that therefore the class of women should not be “certified.”

Here’s the second thing you need to understand:  Plaintiffs do not just get to decide that they want to form a class.  There are legal requirements that govern when a class action is appropriate.  Those rules give Wal-Mart ammunition, because the company can argue that the plaintiffs as a group do not meet those requirements.  In this case, Wal-Mart’s central argument is that class certification is not appropriate because the women’s claims do not have enough in common.

Which brings us back around to where we started:  Wal-Mart says that the class is too big, so big that it is impossible for all of the women in the class to have the same kinds of claims.  Because a court, in deciding the class claim, would not be addressing each individual woman’s damages head-on, each woman should bring her own case.  The women disagree, saying that although they worked at different stores across the country, they suffered the same kinds of harms, harms that stemmed from corporate policy.

As you’ve probably read in the news, the oral argument did not seem to go well for the women plaintiffs.  Several Justices asked questions that seemed designed to highlight the differences among the potential members of the class and their claims.  While the Court probably will not issue its decision until sometime in June, it seems likely that it might hold that the women may not form one large class to bring their case (with several ways of reaching that decision, including the possibilities that the Court will say that no class action is appropriate under these circumstances or that several smaller classes are the way to go).

Meanwhile, the business world will be watching the case closely, as will lawyers who regularly represent plaintiffs in class actions.  The Court’s holding will have huge ramifications for the future of class actions, and each side therefore has a strong interest in how the case comes out.

Moving on to this week’s opinions!  Connick v. Thompson was the classic case in which the Justices were sharply divided on ideological lines:  Justice Thomas wrote an opinion for the majority that was joined by the Chief Justice and Justices Kennedy, Scalia, and Alito; meanwhile, Justice Ginsburg felt so strongly about her dissent (which was joined by Justices Breyer, Sotomayor, and Kagan) that she read it from the bench, an action that a Justice will rarely take unless she is well and truly peeved by the majority’s decision.  Indeed, the facts of Connick are pretty upsetting and powerful:  Thompson did not testify in his own defense at his murder trial because he was afraid that the prosecution would bring up an earlier conviction for armed robbery to try to make him look less believable.  He was convicted of the murder, sentenced to death, and served seventeen years in prison, where he came very close to being executed.  The catch?  Prosecutors never told Thompson’s lawyers that they had blood evidence that would have exonerated him from guilt in the armed robbery case.  Had he not been convicted of armed robbery, he could have testified in his own defense in the murder case and possibly been found not guilty; in fact, after the blood evidence came to light, he was acquitted of the murder in a new trial.

So it is no surprise that Thompson and the dissenting Justices were upset with the majority’s holding in Connick.  Although the prosecutors should have given Thompson the blood evidence, the Court held, when misconduct by prosecutors leads to a wrongful conviction, the district attorney who supervises the prosecutors can only be held liable for his employee’s actions if he was aware of a pattern of similar bad behavior in the office but still did not start a training program for prosecutors.  But the dissenters disagreed emphatically, pointing to the fact that several prosecutors acted together to withhold the blood evidence from Thompson’s lawyers.  Connick should have been able to see that his office’s failure to train prosecutors could have led to this kind of failure to follow the law, the dissenters contended, and Thompson should be allowed to recover damages for the harm he suffered – including many years on death row and several near executions.

In the second of this week’s opinions, the Court decided Astra USA, Inc. v. Santa Clara County, holding that health care centers that primarily serve the poor cannot sue drug companies for overcharging them.  Only the Department of Health and Human Services, which has the contract with the drug companies in which the drug companies agree to limit the prices for the drugs that they sell to the health care centers, can bring a lawsuit.  Probably the most significant item of note about this decision is that it continues an almost uninterrupted trend this Term of the Court reversing the Ninth Circuit unanimously.

Last but not least, this week, the Court “dismissed as improvidently granted” the case of Tolentino v. New York.  In this case, like in most “DIGs,” the Court did not reveal why it changed its mind about cert., but it happens every Term at least once or twice.  A “DIG” generally occurs, however, because the Court realizes that it should not have granted cert. in a case, usually because the litigation in the lower courts did not proceed in a way that would have properly resulted in the case going to the Supreme Court (a so-called “procedural” problem).   Therefore, the Court cannot properly decide it, and it dismisses the writ of certiorari, affirming the decision of the court below.  While the Court is compelled to DIG if the case is not properly before it, the Justices may well regret the fact that they cannot decide the case, because the issue and the facts in the case interested them (something especially true in this case, in which the defendant claimed that because he had been illegally pulled over by the police, his identity and driving record that were obtained as the result of the stop should be excluded from evidence).

April is the last month for oral arguments at the Court; from April until late June, the Justices concentrate on writing opinions.  For the next three months, then, the opinions will be coming down fast and furious – and I’ll explain them all in Plain English.