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Women protesters hold signs in front of the Supreme Court while class action lawsuit Dukes v. Wal-Mart is being argued inside, March 29, 2011. REUTERS Larry Downing

Women launch new legal salvo against Wal-Mart

10/27/2011 COMMENTS (0)

SAN FRANCISCO, Oct 27 (Reuters) - Women pursuing discrimination claims against Wal-Mart filed a reformulated lawsuit before a San Francisco federal court on Thursday, alleging the world's largest retailer treats its female workers in California unfairly.

The revised lawsuit follows a reversal by the U.S. Supreme Court in June of a decision by the 9th Circuit Court of Appeals, which had upheld a 2004 certification of a nationwide class of up to 1.5 million current and former Wal-Mart workers.

The Supreme Court had split, 5-4, on whether the female employees, in different jobs and with different supervisors at 3,400 stores, had enough in common to be lumped together in a single class-action lawsuit. The majority concluded that the plaintiffs had not met the threshold to justify their certification as a class under Rule 23(a)(2) of the Federal Rules of Civil Procedure, which demands a showing of "questions of law or fact common to the class."

In the revised lawsuit, the plaintiffs narrowed their proposed class along geographic lines. The plaintiffs' complaint seeks certification for a class that has suffered discrimination as current or former Wal-Mart employees in California.

Wal-Mart attorney Theodore Boutrous Jr. said the plaintiffs' arguments still rely on the same theories that the Supreme Court rejected. "These lawyers seem more intent on alleging classes for their publicity value than their legal virtue," Boutrous said in a statement.

The revised complaint requests certification of injunctive and monetary relief classes under different provisions of the federal rules. Certification for a class seeking injunctive relief is sought under Rule 23(b)(2), whereas certification for those seeking monetary relief is sought under Rule 23(b)(3). In their prior complaints, certification was sought jointly under both rules. The complaint estimates that there are more than 45,000 women in each of the injunctive and monetary classes.

In its decision in June, the Supreme Court held unanimously that the appeals court had erroneously upheld certification of the plaintiffs' claims for monetary relief in the form of back pay under Rule 23(b)(2).

The Supreme Court found that the rule provides the basis for certification "only when a single injunction or declaratory judgment would provide relief to each member of the class." In the case of back pay, the court explained, each member of the class "would be entitled to an individualized award of monetary damages." As a result, the court concluded that certification under Rule 23(b)(2) was inappropriate.

The case, in U.S. District Court, Northern District of California, is Betty Dukes et al v. Wal-Mart Stores Inc, 01-2252.

For the plaintiffs: Brad Seligman and Jocelyn Larkin of the Impact Fund and Joseph Sellers, Christine Webber and Jenny Yang of Cohen Milstein Sellers & Toll.

For Wal-Mart: Frederick Brown, Mark Perry, Michele Maryott, Rachel Brass, Theane Kapur and Theodore Boutrous of Gibson Dunn & Crutcher.

(Reporting by Dan Levine and Poornima Gupta; additional reporting by Rebecca Hamilton in New York)

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