By: Derek Brett

Derek Brett — Thu, 31 Mar 2011 01:34:01 +0000

Update: Well, the oral arguments from yesterday appeared to go, well, precipitously bad. It was simply too scary having the Four Horsemen of Reaction gang up on counsel for Plaintiffs, Joe Sellers. Surprisingly, although I suspected that this would end up a 5-4 vote, I had really hoped that Justice Kennedy would chart a moderate course and upheld the right of plaintiffs to certify their class — especially against corporate behemoths such as Wal-Mart. Alas, “no,” as Kennedy appeared to be going deliberately in the direction of reversal, and thus the wholesale undermining of class action litigation designed to correct massive injustices at the large corporate level. There is no basis for this potential result, and the Civil Rights Act provides no affirmative limit to it. The attack centered, primarily, upon the various issues of the various plaintiffs subject to class certification. What is unique is that the case does not deal necessarily with that issue, but the ability to actual be certified as a class — for which the answer is almost indisputably “yes.” Yet, The Four Horsemen of Reaction (“FHoR”) opted to conduct their own de facto, de novo review. However, decisions of class certification are made squarely during the long, deliberative class certification process at the district court level. The appellate Supreme Court — during the course of reviewing appellate briefs and conducting an hour-long oral argument — are in no position to second guess the determination of the lower courts. But that is what is happening. Get ready people, but I believe that this will be a very ugly 5-4 decision for big, bad corporate entity Wal-Mart.

Comments on: Labor/Employment: Significant Oral Argument Today in Walmart Stores v. Dukes

By: Derek Brett