How many is too many? Class action questions

[Assle]

I was reading up on Wal-Mart v. Dukes (details here: http://www.scotusblog.com/case-files...-mart-v-dukes/).

Opinion of the Supreme Court here: http://www.supremecourt.gov/opinions/10pdf/10-277.pdf

FRCP 23 does list a specific maximum number of class members. It does, however, spell out that putting multiple plaintiffs into one class will save redundancy AND that having each member of a potential class bring a separate action would wreak havoc on the courts because of redundancy/slight variations in filing AND the sheer volume from ~1.5 million individual plaintiffs.

Supreme Court ruled that the class (female employees former and present) did not have enough in common to be part of the same class.

Question 1: Is there an expected percentage of class members to withdraw from a class action? So if there were as many as ~1.5 million female employees at Wal-Mart for a given timeframe, is it expected that most will drop out leaving a far more manageable class size?

Question 2: Does it matter if there's 100 or 1,000 or 1,000,000 class members if the nature of the complaint for the class as a whole is basically the same (sex discrimination)?

Question 3: Being that Supreme Court Ruled that the plaintiff class did not have enough in common, does that mean the potential ~1.5 million plaintiffs will have to be broken apart into groups with a more-specific allegation? (e.g., one class of those who were not promoted, another class of those who were demoted, yet another of those who were reprimanded harsher than their male co-workers, etc.)

[Polski Ogier]

[nm+]

OT: Not the homework help lounge.

[v408w]

OT: Not the homework help lounge.

Sent from my Sensation using Tapatalk 2

[Assle]

OT: Not the homework help lounge.

Not homework. Read an article on Twitter, trying to figure out what this case has to do with insurance contract revision because of state laws.

Are you up to $160 on the Obama fund yet?

[nm+]

Not homework. Read an article on Twitter, trying to figure out what this case has to do with insurance contract revision because of state laws.

Are you up to $160 on the Obama fund yet?

At least, has he posted again?
edit: deleted. $160 at the moment. I wish I knew his real name, I'd donate in his name.
edit2: $162

[sethgood]

Not homework. Read an article on Twitter, trying to figure out what this case has to do with insurance contract revision because of state laws.

Are you up to $160 on the Obama fund yet?

Sounds like we need to know if the state abolished the Rule in Shelley's Case?

[2VWatatime]

I was reading up on Wal-Mart v. Dukes (details here: http://www.scotusblog.com/case-files...-mart-v-dukes/).

Opinion of the Supreme Court here: http://www.supremecourt.gov/opinions/10pdf/10-277.pdf

FRCP 23 does list a specific maximum number of class members. It does, however, spell out that putting multiple plaintiffs into one class will save redundancy AND that having each member of a potential class bring a separate action would wreak havoc on the courts because of redundancy/slight variations in filing AND the sheer volume from ~1.5 million individual plaintiffs.

The proper response to that para. is "So"? You're talking of two extremes (the entire "class" & individuals), regardless of FedRules.

Supreme Court ruled that the class (female employees former and present) did not have enough in common to be part of the same class

.

No, what the Supremes ruled was that there is no evidence that all females (the class) suffered damages due to their being a part of the class, thus the reality that all members of the class, by definition, could not be considered as part of the larger whole.

Question 1: Is there an expected percentage of class members to withdraw from a class action? So if there were as many as ~1.5 million female employees at
Wal-Mart for a given timeframe, is it expected that most will drop out leaving a
far more manageable class size?

Only if the plantiff wishes the case to go forward. Assuming that, then they'll have to create a new class...

Question 2: Does it matter if there's 100 or 1,000 or 1,000,000 class members if the nature of the complaint for the class as a whole is basically the same (sex discrimination)?

The # in the class only matters to the lawyer when dividing up the $$$$$. In this case they'll need a new complaint as well...

Question 3: Being that Supreme Court Ruled that the plaintiff class did not have enough in common, does that mean the potential ~1.5 million plaintiffs will have to be broken apart into groups with a more-specific allegation? (e.g., one class of those who were not promoted, another class of those who were demoted, yet another of those who were reprimanded harsher than their male co-workers, etc.)

Does the phrase "duh" ring a bell?

The Supremes are saying here (among other things) that one can't simply lump people w/a variety of complaints into one "class" based on the internal plumbing. Make the case for actual damages and you've got something. Otherwise, don't waste our time (and $$$).

[Assle]

No, what the Supremes ruled was that there is no evidence that all females (the class) suffered damages due to their being a part of the class, thus the reality that all members of the class, by definition, could not be considered as part of the larger whole.

This explains it exactly the way I hoped it would. Much appreciated.

[O_G]

No, what the Supremes ruled was that there is no evidence that all females (the class) suffered damages due to their being a part of the class, thus the reality that all members of the class, by definition, could not be considered as part of the larger whole.

So, how can sexist discrimination not affect all women?

Consider the Venn diagram:

All women are women
Sexist discrimination targets women as a class

What argument, specifically, did the Supremes make that refutes this?

[Assle]

As I understand it, the class would have to be narrowed down just to women who pursued a furthering of their career at Wal-Mart and felt that they were passed over in favor of an equally or less-than-equally-qualified male for the same position.

So the class was to have included all ~1.5 million female employees of Wal-Mart but (I would assume) most of those 1.5 million did not feel as though they were overlooked for a promotion because of sexual discrimination.

That initial 1.5 million can then be divided into one class of those who did not get a promotion comparable to their male co-workers.

Another class of women could then be those who were demoted or otherwise reprimanded on a harsher level than their male co-workers.

[O_G]

As I understand it, the class would have to be narrowed down just to women who pursued a furthering of their career at Wal-Mart and felt that they were passed over in favor of an equally or less-than-equally-qualified male for the same position.

That's what I guessed. Women were divided into "women smart enough to care" and "women dumb as stumps". Eugenics. Gotta love the Supremes!

as if a woman can become not-a-woman simply through attitude...

Of course this reasoning is absurd. If any of those ambivalent women had pursued career advancement they would have run into the same sexism, thus they were subject to it given their female status. Therefore, the only thing separating them is malleable/transitory/arbitrary attitude. The Supremes win again.

The only way their logic works is if one believes in Eugenics -- that these women, all of them excluded from the category of plaintiff class -- were really so stupid that they are unable to choose at some point to want to advance their careers. That creates a special sub-woman category. Hooray for that! (Granted, I realize that people have various reasons other than stupidity for not wanting advancement, but that's clearly beside the point.)

[2VWatatime]

So, how can sexist discrimination not affect all women?

Consider the Venn diagram:

All women are women
Sexist discrimination targets women as a class

What argument, specifically, did the Supremes make that refutes this?

The Supremes do not make arguments - the plantiffs do. I'm going out on a very short limb here by pointing out that you neither read the ruling nor the arguments.

In this case, the plantiffs argued (in very general terms) that all women, regardless of standing w/in the company, were members of the class - whether they were harmed or not. Given the fact that during the time span there were women at every single level of management in the company, this argument fails by default as clearly not every member of the class suffered harm. Recognizing this, the plantiffs all but shot down their own case by attempting a midstream change to focus on women at the sales floor level (IMO a case far more likely to succeed) so the Supremes took the plantiffs at face value and ruled so.
Frankly, the leads in this case were guilty of gross misrepresentation - my guess is that they live in "the bubble" - the urbane America that believes WM to be corporate evil and that all others believe the same way - an attitude reflected in their filings. In short, they were lazy and presumptive and lost (rightfully so).

[ATL_Av8r]

What the **** do the Supremes have to do with this?

[2VWatatime]

What the **** do the Supremes have to do with this?

Everything. Just ask the Chief Justice:

[O_G]

The Supremes do not make arguments - the plantiffs do.

They certainly do. It's impossible to have a dissent, for instance, without making an argument.

In this case, the plantiffs argued (in very general terms) that all women, regardless of standing w/in the company, were members of the class - whether they were harmed or not.

For the exact reason I gave, right? -- that all female Wal-Mart employees are women?

Given the fact that during the time span there were women at every single level of management in the company, this argument fails by default as clearly not every member of the class suffered harm.

Margaret Thatcher's election to the position of Prime Minister shows us the "fact" that sexism was eradicated in the UK, too. Right?

Recognizing this, the plantiffs all but shot down their own case by attempting a midstream change to focus on women at the sales floor level (IMO a case far more likely to succeed) so the Supremes took the plantiffs at face value and ruled so.

So, your argument is that women at the sales floor level were subject to sexism but women at higher levels weren't? What evidence do you have? What evidence contradicts the point that any woman who would be at the sales floor level and wanted to rise would be subject to sexism, thus making any woman at a higher level potentially subjected to sexism? Or, is the idea that women at higher levels aren't supposed to rise from the sales floor level? What evidence is there that women at higher levels weren't subjected to sexism, even if hired exclusively at a level above the sale floor level? Was there 50% sex parity (in terms of the number of employees, 50% women and 50% men) at all levels, or at least at higher levels?

Frankly, the leads in this case were guilty of gross misrepresentation

What was this gross misrepresentation?

my guess is that they live in "the bubble" - the urbane America that believes WM to be corporate evil and that all others believe the same way - an attitude reflected in their filings. In short, they were lazy and presumptive and lost (rightfully so).

Ad hominem.

[2VWatatime]

Wow. You were just frothing @ the keyboard to get back there, Captain OTS. Must've been rough, clicking in daily & unable to respond to reasoned statements...

[O_G]

Wow. You were just frothing @ the keyboard to get back there, Captain OTS. Must've been rough, clicking in daily & unable to respond to reasoned statements...

"Got nothin'" takes a lot less typing, fyi.

[Assle]

They certainly do. It's impossible to have a dissent, for instance, without making an argument.

This is simply a matter of terminology. The attorneys present arguments, courts hand down decisions.

For the exact reason I gave, right? -- that all female Wal-Mart employees are women?

By following that standard, the class you are setting up is those who potentially maybe possibly kinda sorta could have been victims of sexism. Dukes, et al did not say that their class is those that could/maybe/might be victims of sexism... they specifically said that they already were impacted by sexism. They said so in the examples of female employees being subjected to harsher criticism, not being promoted to the same level as males, etc.

So, your argument is that women at the sales floor level were subject to sexism but women at higher levels weren't? What evidence do you have? What evidence contradicts the point that any woman who would be at the sales floor level and wanted to rise would be subject to sexism, thus making any woman at a higher level potentially subjected to sexism?

Again, plaintiffs in this case did not allege that they maybe/possibly/could be affected by sexism. I cannot take you to court because you might one day possibly maybe potentially theoretically cause me some harm.

[O_G]

By following that standard, the class you are setting up is those who potentially maybe possibly kinda sorta could have been victims of sexism. Dukes, et al did not say that their class is those that could/maybe/might be victims of sexism... they specifically said that they already were impacted by sexism. They said so in the examples of female employees being subjected to harsher criticism, not being promoted to the same level as males, etc.

Again, plaintiffs in this case did not allege that they maybe/possibly/could be affected by sexism. I cannot take you to court because you might one day possibly maybe potentially theoretically cause me some harm.

If the problem is systematic sexism (sexism as company policy) then all women are affected because they're women. The notion that women who don't realize they're being treated in a sexist manner aren't being treated in a sexist manner is false, as is the notion that women who haven't (yet) chosen to pursue advancement are irrelevant to sexism as it impacts female advancement.

If there is systematic sexism, then how won't it affect all the women at the company? They're all women operating within a sexist paradigm.

[ATL_Av8r]

This is simply a matter of terminology.

You hear that? That is the sound of zuki frantically typing. Seismographs are going ape**** globally.

[2VWatatime]

"Got nothin'" takes a lot less typing, fyi.

Ok, you "got nothin". Per your usual.

[hrama803]

I hate WalMart.

[O_G]

Ok, you "got nothin". Per your usual.

Fascinating analysis.