Tuesday, June 21, 2011
Steven Greenhouse of the New York Times has an article today entitled "Wal-Mart Case is a Blow for Big Cases & Their Lawyers". He quotes Heidi Li Feldman, of Georgetown, on the impact on other types of cases, especially those relating to the mortgage crisis:
“A big mortgage broker might say, ‘At the national level, we have policies to abide by all of the rules and regulations that are applicable, and we delegate a lot of discretion to our branches,’ ” she said.
He also quotes John Coffee of Columbia Law on the effect of this case on securities actions: none. The article is worth reading, with some good quotes from both sides in the case.
Joe Sellers, attorney for the plaintiffs, is quoted as explaining that the ruling will break up the actions against Wal-Mart to a store or regional level. This will be more expensive for plaintiffs, but as Sellers points out, if plaintiffs stick with it, the fragmented litigation will become much more expensive for Wal-Mart, which will have to defend on multiple fronts. Had Wal-Mart permitted the class action to go forward and won on the merits, everything would be over. Now there is the potential for multiple jurisdictions to issue different rulings not only because the facts of the cases will be different in different places, but also because of different views on the law. Of course, for all this to be the case plaintiffs have to have the stomach and the resources to pursue the litigation; they say that they will. It is the economics of litigation that make this case so troubling.
There has been a big debate in the academy over whether disuniformity is a good or bad thing, and the Court here has come out in favor of it by rejecting the centralization of these claims against Wal-Mart. If you're interested, you might check out Amanda Frost, Overvaluing Uniformity or my own Recovering the Social Value of Jurisdictional Redundancy.