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
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
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,
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
(Reporting by Dan Levine and Poornima Gupta; additional
reporting by Rebecca Hamilton in New York)
Follow us on Twitter: @ReutersLegal