The Economic Populist
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Are you saying there will never again be a successful class-action suit until Rule 23 is amended by Congress? Or until something is done, one way or another, about the 5-4 majority? Either way, I don't believe it, although I would like to see Rule 23 amended and I would like to see the 5-4 disappear down the sanitary drain system of history.
Of course, in a sane world, Congress would quickly act to amend Rule 23, just as in a sane world, we would not have a 5-4 majority Court usurping the authority of the State of Florida to cast electoral votes according to Florida law.
Meanwhile, although this one case is at the end of the road, I still think that at least some plaintiffs can make out solid cases, technically de novo but building on all the factual stuff and legal work in the record for the dead case. Such plaintiffs (aggrieved parties suffering monetary injury due to unlawful discrimination) can proceed on an injunction or declaratory basis, which hopefully will allow them to recoup their filing fees and even their attorney fees. After that, with a finding of discrimination, they go back individually to their favorite EEOC and go after monetary relief, with the moral force of a jury verdict behind them. When WalMart appeals the EEOC judgements to district courts, assuming that they do, I doubt that the plaintiffs will have any burden of proof at all, except to show that the EEOC's calculations of damages were realistic and within the law.
The thing is to find venues where you can quickly get to a jury -- WalMart unable to side-track at an early stage. These corporate big dogs think they rule all the court houses in the land, but they don't. At least not yet. There are plenty of small-fry attorneys eager to speak to a jury. They just cannot afford to pay filing fees, and they need to eat and pay rent until their clients are awarded costs.
But maybe I am all wet about this whole thing. It's just my opinion. I'm not personally involved in any capacity, although I probably know at least one of the plaintiffs.
As for discrediting the plaintiffs one by one, I really think that a class action is still possible for smaller groups -- so the defendants would have to discredit maybe from 20 to 100 women in defending one case. Such a strategy would be self-defeating because, right there, the pattern of discrimination would become obvious. I can't see that the precedent is for all class-action suits of whatever scale or specificity.
If a hundred smaller cases are filed, naming particular supervisors, what is WalMart going to do? Abandon all their supervisors? Relocate them, like in some kind of witness-protection program, out of the country? Maybe so, but it will be a devil for them. The force of rumor spreading locally person-to-person should not be underestimated.
At the least, if thousands of these plaintiffs persevere, WalMart will find it very difficult to defend and will probably start offering generous settlements. Or not. But, if not, then what can they do to cut their losses? Hire all the attorneys that are representing plaintiffs?
One way or another, at least a thousand of the plaintiffs have considerable leverage at this time, if they want to use it and are situated so that they can.
So, that's what I would like to see. I suppose it's just the devil in me. In a related area, I would like to see people working on the practice of firing people just before their pensions become vested. I hear about that all the time. Does anybody these days work the ADEA -- Age Discrimination in Employment Act?
Of course, Congress could and should amend Rule 23, but we know that won't happen until 2013 at the earliest ... and even then ...
The bottom line is, if we could ever elect a congress that actually represents the people, we badly need a new Judiciary Reform Act.
Is the audience actually taking notes? Getting it all down? Like a serious seminar?
Is this what happens when you take a red-blooded Texas boy out of Texas and leave him in Paris for a while?
Got it!
Slavery is inefficient! Outsourcing is much more profitable!
But one part of the Remote Worker System was omitted. When things get out of hand and you look at the screen on the end of your inflatable dingus, you see that the factory has suffered some kind of social disaster ... it's being wrecked by workers ... profits are gravely endangered. (Read the classic March to the Monteria by B. Traven!)
No problem ... switch over to your remote control system for a drone strike and blow the whole thing up. (Otherwise, it could conceivably become your competition while, thanks to the drone app add-on to your remote worker management system, everything is neater and ultimately more profitable.)
Labor, like any other resource, eventually is exhausted. So move on to the next country.
Wait a minute ... almost forgot ... before calling in the drones ... SELL YOUR COMPANY SHORT ... THEN, call in the drone attack!
Wait a minute ... even better ... as soon as you call in the drone attack on YOUR factory ... call one in for the factory in another country, operated by your competition ... oh, that's in China ... well, guess we'll have to get the White House involved .... how much will that cost?
Congress could put an stop to the Fed's backdoor bailouts and policies, but they choose not to. Congress is letting the Fed do their dirty work. The Fed is providing political cover for Congress.
Congress, the Fed, they're two peas in a pod. Neither represent the interest of the American people. Both represent the interests of large corporations, wealthy donors, and the well connected.
It is scary as to consider what could happen to the US next. Unemployment is at 1930's levels so that 20%+ are unemployed (based on the realistic unrevised stats). Therefore, there are 80% or so 'employed'. If things continue then many thousands could be made unemployed from the public sector and at that point we will enter new territory. At what point does society reach a cusp and start to collapse in on itself and what will be the response from the authorities.
The case cannot be readjusted to bring about a class action and that is where the court split.
They ruled unanimously it was too broad but it's the split decision where it's most damning to workers.
It's bad because the burden of proof was changed to be on the plaintiff and so for individuals, corporate attorneys try to pick out that person's flaws to justify whatever and of course every individual has flaws, whereas a group, it becomes much more obvious there is discrimination.
That is, he's not someone we'd imagine as president would never grasp the economic issues, really, and never gain a sense of which arguments had merits and which ones did not. (At least that was my perception of McCain and I believe that was how many others saw him and was a chief reason he wasn't elected).
I don't know what his math/stats skills are and how much he can grasp of economic arguments -- do you? I myself am one of those people who have college level plus reading comprehension yet could not solve a simple equation if my life depended on it (and there was a whole class of us liberal arts majors at my school like that, so I know I am not alone). I doubt Obama is so lopsided in his abilities.
Also he's never said anything about the 99ers.
I vote avoidance. I vote a conscious effort not to acknowledge and respond to our economic and jobs emergency which is a blight on his presidency that will never be removed. In fact I believe that his wilfull ignorance[, refusal to disclose the truth about the current economic emergency and stubborn inability to take effective action about jobs (bracketed material added)] will dog his reputation more once he is out of office than it does today.
Oddly enough no one seems to hold him accountable now. I suppose partly because just about everybody in Congress, liberal and conservative, Democrat and Republican, is playing "see no evil" like him.
We shouldn't call them political prostitutes either, terribly unfair to prostitutes.
Speaking of which, Scalia outdid himself with Walmart. He's got big plans to destroy any semblance of justice and he's working it hard.
This two part video pretty much sums up the Mandarins who carry the water for The Money Party.
http://www.youtube.com/watch?v=FUtQ331-FBc&feature=youtu.be
http://www.youtube.com/watch?v=Rux-4LJr9mY&feature=youtu.be
What a statement!
To me, the problem with all EEO stuff is that we don't even have a generally accepted goal of full employment (and can't have until we change the globalism agenda). What can we hope to accomplish? Assuring equal rights to permanent unemployment and homelessness? Putting some people out of work for the duration of the Great Recession, for the sake of bringing others in to replace them? The replacements will, of course, be paid less, more likely to be H1B types, and, more compliant with corporate authority. No net improvement overall.
Except for the 5-4 ruling, it could have been certified but without the claims for back pay. I think that if the minority view had prevailed, the case would have been remanded and WalMart would have been enjoined to do something or another. Also, individuals would be able to proceed with individual claims for back pay without having to litigate everything all over again. Some of the plaintiffs would have been much better off than they are.
Yeah, I should probably have refrained from commenting without reading the opinions!
What sounds likely to me is your suggestion about that this is going to provide cover for class action suits against Wall Street, banksters and other big international players. Although almost unimaginable, the ruling that you envision could really be the next example of the flagrant injustice for which the Roberts court is becoming known.
The Court will find a Constitutional provision assuring that some dollars are more equal than other dollars.
Are you sure on these points?
First, "blame the system" ??? NO, change the system!
Note: I have read only reports and reviews, not the opinions of the Court.
Now, to proceed, this wasn't "a unanimous decision" except on one narrow ruling.
It was 5-4 on the central issue of commonality. The unanimous part was only about the legal consequences (for class certification) of asking for back-pay as well as injunctive relief. I doubt whether plaintiffs ever expected to win on that, but they did think that WalMart could be enjoined to do something about an egregious situation.
I have to agree with you about "justice for the individual is impossible" - at least in the Federal courts. Sad, very sad, but true. Not that "justice" was ever obtainable in any court of law, but any semblance of justice for the individual has disappeared.
Also, I agree about the issue of systemic discrimination, but I can see the rule of commonality too. The thing is that Congress clearly intended anti-discrimination law to address, specifically, systemic discrimination. However, the courts can hardly entertain a claim that just says "Here is something we want done about systemic discrimination that Congress found to exist, even though Congress has not specifically authorized the procedure we are following." This case involved a much larger class than was ever previously certified, so the 5-4 Court was justified to some extent in their judicial activism.
Exactly what would the injunctive relief have demanded of WalMart? A quota? There's precedent against it. A WalMart rule book for anti-discrimination hypocrisy? Big deal. The Court was saying that it was too big for any court to try to supervise or even to frame the injunctive relief applicable nationwide. Well, that smacks of pro-corporate judicial activism, but do we expect anything else of the SCOTUS these days?
I don't believe that Congress has ever addressed the issue of whether the courts may reject a class-action suit on grounds that the plaintiff class is so large that the commonality rule (Rule 23(a)) cannot be realistically applied. And it isn't a simple matter for Congress to address, since it involves the intricate balance of power between the judiciary and legislative - the matter of pleading standards, with clear impingement on Amendment V and other aspects of the Constitution. What could even a Democratic Congress do that would be proof against undoing by this essentially Republican Court? (I am neither a Democrat nor a Republican, just noting the stalemate as it exists.)
The majority have been criticized as overly broad and, basically, as judicial activists, based on their raising of the bar for plaintiffs to proceed as a class and jumping the fence regarding basic appellate procedural limitations. In other words, they are criticized on the same grounds on which they have been criticized even before the Roberts court (the earlier 5-4 court and the court before that).
What do you expect when you (1) regularly elect enough Republicans to Congress to practice systematic obstructionism, (2) never object to your U.S. senators about the system of Senate collegiality at any price, (3) allow the Supreme Court, in violation of the Constitution, to usurp the authority of the State of Florida to install a POTUS, (4) disregard and don't even know what the Tenth Amendment is, (5) allow voting by very problematic machine counting, where the machines are owned and operated by corporations (heading toward one single corporation), (6) fail to form or support a real alternative to the two-party system, and, (7) fail even to begin to enact a Constitutional amendment to correct the campaign finance laws that have been created by various Supreme Court decisions over the past 3 decades?
Oh well.
Maybe I am inaccurate here, but this is how I think the EEO system works: Certain groups are identified by specific legislation as aggrieved classes with standing to file claims based on discrimination in employment. That is, each individual within each class (women, African-Americans, people over the age of 55, etc.) has standing to bring a claim for injuries suffered as a result of unlawful discrimination. The fact of systemic discrimination, although clearly a finding of the Congress in drafting the legislation, confers no automatic standing on any group that files a class action. it appears to be entirely a matter of the Court's interpretation of Rule 23 of the Federal Rules of Civil Procedure -- fascinating reading
Whatever, the rights and wrongs may be, this case appears to have been decided with much better authority than was Bush v. Gore, for example
When you say "the government should change the law," I agree but which government is that? Each state has its own Equal Employment institutions, there is the federal EEOC, there is Congress, there is the Executive (Executive Orders), and, there are the courts (state and federal). Yes, hypothetically Congress could act ... but let's get serious ... this congress? Or do you expect state governments now preoccupied with their very survival to take up an EEOC issue with vigor? Is this issue of greater importance than redistricting and could it be used as a distraction to draw our attention away from redistricting? -- or as a distraction to draw our attention away from the Senate's failure to consent to the appointment of Obama's nominees to fill four (I think) long-standing vacancies on the 9th Circuit.
And the White House ... it's doubtful how much authority the President has over EEOC regulations. That's the whole point of the EEOC, isn't it? -- to take policy decisions implementing EEO law out of the realm of politics?
So, really, the only practical course for the plaintiffs is damn the torpedoes, full steam ahead ... which leads me to this point:
"They cannot reform from this ruling and file another modified class action."
Maybe, but I don't get the grounds for what I think is your way too broad conclusion.
The way I read it, plaintiffs can file hundreds of different smaller class-action complaints, each naming a particular supervisor or connected group of supervisors (although the latter situation would be more problematic than the former). Why not? We might have ten or twenty plaintiffs, splitting the filing fee and agreeing to make a name for a young attorney fresh out of law school and eager to go at it right up into courts of appeals. If we are saying that supervisors generally acted willfully and wrongfully but with WalMart gross contributory negligence, then where's the problem with naming one supervisor, along with WalMart? See what happens. Maybe supervisors will sue WalMart. Maybe WalMart will start firing the supervisors who are being sued. Full employment for attorneys fresh out of law school with no connections into the big firms! (And some of them are even girls!)
Sure it takes some time to go through the stages required by anti-discrimination law, but there are shortcuts to get to a jury trial, and you have the advantage of all the research done already and available to you in the record of this case from before the 9th Circuit on up to the SCOTUS. All your citations are there for you. All kinds of statistics and interviews, and so forth. Go directly to the jury, do not pass GO. It could be the Lilliputians against Gulliver, wrapping WalMart up with thousands of little threads.
This is just the end of the road for one case, identified by the no-longer-allowed class of millions. Plaintiffs can hardly have been enjoined from filing new cases based on parts of the underlying matter. If that's the intent and effect of this ruling, please let us know! That would be right up there with Citizens United and Bush v. Gore!
Ask yourself why this Administration, Congress, politicians, Treasury isn't doing a damn thing and why is it good ole Ben seems to be more worried about unemployment than them?
I know all love to do a lot of Ben/Fed bashing and we'll be right there with ya on bail outs, subsidized loans for foreign banks, buying and hiding toxic assets and on and on..
but the bottom line is our government are even more bought and paid for than the Federal Reserve, if you can imagine that being even worse...
but it's pretty clear by policy, legislation and the lack of action on a host of policies it is.
Why isn't the Treasury Department saying this? Why isn't the Commerce Department saying this? Why isn't the White House saying this?
How did we ever get to the point that a non-governmental agency, an entity that is disguised as a government agency but is indeed a private banking cabal, owned by the Rothschild family and JP Morgan, why are these private banking interests the "keepers" of our economy?
How did the chairman of a cabal of private banking interests ever get viewed as some grand wizard and grand poobah of the economy of a free society?
This private banking cabal dedicated to nothing except making sure the wallets of bankers are fat and inflated is not even Constitutional. It shouldn't even exist. It should be exposed as the bubble blowing cause of malinvestment and market distorting farce and Wall Street's private piggy bank that it is.
Then let Ben Bernanke, the criminal who has engineered the largest transfer of wealth from the bottom to the top in world history, literally plucked countless billions out of the pockets of the working poor, conduct his press conferences from jail.
I looked at the poll - stupid question, not even about the 5-4 decision. A distraction from real issues.
We don't really know about the motivations of the attorneys. Of course, anti-discrimination lawyers want to be paid, but doesn't everybody want to get paid. Do you think that the term "legal work" is a misnomer? No, it's work!
When you represent that the blame should either be on the Court or on the lawyers, you let WalMart off the hook, don't you?
This 5-4 decision means that many more independent attorneys must be employed to prosecute each class consisting of aggrieved parties where a particular supervisor is identified as the key element in the discrimination suffered. The difference is that instead of a very few huge law firms and a very few highly-paid hot-dog attorneys speaking for a million, we should have hundreds of smaller law firms and hard-working attorneys going forward with hundreds of class-action cases. Why not?
Bring the juries on! We can do better with juries and trial lawyers than with the 5-4 Supreme Court of the United States!
If anyone doubts this, please re-read 'Gulliver's Travels'! The bigger they are, the harder they fall!
BTW: NO to any limitation of Constitution right of injured plaintiffs to employ attorneys on contingency basis!
First we need to reform the Federal judiciary. That is, we need to find a way to get a substantial number of them out! Also, the Republican blocking of all judicial appointments - especially when Obama's nominees are highly qualified - can hardly help the almost hopelessly corrupt condition of the judiciary.
We should be working for state-by-state ballot and vote-counting reform, because that's where reform can and should happen. What about pushing for a Constitutional amendment to reform campaign finance reform? As it stands, the highest Court has spoken more than once and will not allow it!
BTW: Please don't use the word "children" to describe venal and puerile apparatchiks! That's an insult to real children everywhere! (And the project is a lot more complex and difficult than taking toys away from children.)
See if these boys can't find a cell at Lewisburg where Jimmy Hoffa did his time. Let these criminals do their time in a real prison, not a tennis club.
Teddy Roosevelt faced a choice like Obama's in April of 2009 when the 12 Banksters were summoned to the White House. In 1907,TR smacked them around and insisted that
the Robber Barrons invest, build and pump the markets. What a difference a century
and a real president can make.
As you recall, Obama opined, "I'm the only one protecting you from the folks with the torches and pitchforks out there." That day, Obama's effective Presidency ended.
They sure did save and lend to foreign banks but I don't recall a 70% total. Reference?
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