California’s Magic Number Shapes Next Wal-Mart Class Action

Class actions are a vital tool for holding accountable corporations that profit by violating a large number of people.  Emphasis on large number of people.  In other words, if your employer at the local deli withholds wages from you and your fellow “sandwich artists,” you probably don’t have a class action.  In “class action” parlance, that’s called the “numerosity requirement" and usually, the question that worries lawyers is: is the number “large enough”?  Although I should say that by “worry,” I do note that in the view of some (like class action attorney blogger Russell Jackson), this requirement has never gotten the respect it deserves:

As I have lamented in this space before, too many people (courts, lawyers, litigants) treat numerosity as a throw-away requirement.  If there are potentially more than some magic number of claimants (often 40 or 100), some treat numerosity as "established" and can get very upset if a defendant won't concede it.

Whether or not that’s true, one thing’s for sure.  “Large enough” isn’t the only issue to worry about these days. “Too large” has become a front and center concern thanks to the U.S. Supreme Court in the 2011 decision, Wal-Mart vs. Dukes (which we last covered here  and here.)  In that case, national discrimination against female Walmart employees created too large a class.  We said then, “there is no longer any financial incentive for massive employers like Wal-Mart to settle with victims and stop pervasive discrimination like this."

OK we admit, that may have been an over-reaction – but only a little one.  Thanks to a federal court decision last Friday, the number of female employees discriminated against by Walmart California is, indeed, just right.  Yippy!  Writes the San Francisco Chronicle:

A statewide discrimination suit against Walmart on behalf of at least 100,000 current and former female employees has survived its first test in federal court, more than a year after the U.S. Supreme Court dismissed a nationwide sex-bias suit against the retail giant.

The California case is an offshoot of the national class action that was filed in San Francisco federal court in 2001 on behalf of as many as 1.6 million Walmart employees. Like the earlier case, this suit accuses the company of systematically discriminating against women - who, according to the plaintiffs' experts, were paid less than men and promoted less often.…

U.S. District Judge Charles Breyer ruled Friday that the high court had not foreclosed state or regional class actions against Walmart if workers could show they were victims of a uniform policy of discrimination.

He cited the plaintiffs' claims that all California store managers are required to attend training sessions where they are cautioned that women may not be qualified for promotion. Those allegations, if proven, would help to show a "culture and philosophy of gender bias," Breyer said.

More from Bloomberg, here.  So Walmart, numerosity requirement?  Check.  Next stop February, when Judge Breyer will decide if the class will be certified.  We'll keep you posted!