a fail too big to prosecute

It seems that Wal-Mart’s lawyers are not arguing that they should be immune from lawsuits for the now-mundane reason that they are “too big to fail” but that they made a fail too big to prosecute (h/t newser). In the continuing saga of its epic gender-discrimination suit, the corporation is asking the Supreme Court to block a ruling by the Ninth Circuit that the female employees of Wal-Mart comprise a class. In a brief filed on behalf of Wal-Mart, one lawyer argues:

The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined – making it the largest employment class action in history by several orders of magnitude.

In other words, “Dear Supreme Court: We discriminated against soooooo many women that it is going to be really hard to deal with this case. We’ll tell you what: in exchange for you forgetting about this case, we will make sure that you don’t have to deal with all of its complications. Sound good? Great! Love, Wal-Mart P.S. Although ‘too-big-to-fail’ is kind of ho-hum these days, we would like to try that too.”


Yes, it is really true that I am posting here since Tina was irresponsiblekind enough to give me the proverbial keys to the kingdom. Thanks Tina!

5 thoughts on “a fail too big to prosecute”

  1. Reminds me of the definition of chutzpa: killing your parents and then saying you deserve mercy because you are an orphan. HOPEFULLY nobody is buying what they are trying to sell.

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  2. If the lawsuit has any merit then Wal-Mart’s owners should be up in arms! According to this logic, Wal-Mart should fire all the men in the company since, allegedly, they can pay women less and still get the same productivity out of them. If discrimination is indeed taking place, wouldn’t it be eating into their profit margin?

    But seriously, the Judge Kosinski’s dissent seems pretty reasonable: These 1.5 million women “held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment.” Treating both parties as monolith seems a bit of a reach.

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    1. josh, I don’t doubt that there are legitimate legal claims in the case to be considered, the major one being whether all female employees of Wal-Mart can be be considered part of a single class. My objection is to Wal-Mart’s defense that, by sheer size of the class alone, it should not be subject to large classes if the class is legitimately defined.

      I didn’t mention this above, but I think there is the potential for a wonderful organizing opportunity even if the Supreme Court overturns the ruling defining all female employees as a single class. If fair-employment organizations began campaign to organize women in each of the classes to be litigants to define a new class-action suit upon a decision by the Supreme Court, then Wal-Mart would be facing a “kaleidoscope” of class-action suits. On the one hand this would favor Wal-Mart since they have substantial resources to leverage at this fight; on the other, it means that it is likely that the cases would be merged eventually anyway and make Wal-Mart attorneys run all over the country.

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    2. The plaintiffs have gone to extensive efforts to document that all those supposedly disparate policies and jobs across regions were all tied together closely by corporate policy and culture. They did think of that. In his report, Bielby concluded: “Centralized coordination, reinforced by a strong organizational culture, creates and sustains uniformity in personnel policy and practice throughout the organizational units of Wal-Mart.” The evidence follows. It’s a great read: http://www.walmartclass.com/staticdata/reports/r3.html

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