Saturday, May 31, 2014

Weighing in on Wal-Mart - Part Two - The Procedural Approach

I am continuing here with my four-part discussion on what I view as the best ways for plaintiffs to act collectively following the Supreme Court's Wal-Mart decision. Again, I am not seeking to contest the Court’s decision, but ask more practically how plaintiffs should proceed in light of this case.

There are a number of procedural tools that can be used to help circumvent the Wal-Mart decision. One often overlooked approach is the offensive use of non-mutual collateral estoppel.  This tool can help streamline complex litigation by allowing common issues in the cases to be resolved a single time. This approach can be particularly effective in employment claims, which often involve a common set of managers, policies, and discriminatory facts.

Second, plaintiffs can still act collectively through the consolidation of cases. Case consolidation differs from collateral estoppel in that questions critical to the cases are resolved at the same time. Again, the consolidation of cases can help streamline and simplify the litigation.

Third, plaintiffs can attempt to limit the reach of the Wal-Mart decision by limiting its facts. In this way, plaintiffs can argue that the decision should be restricted to those cases involving enormous claims. Thus, there is the possibility of “cabining” Wal-Mart by limiting the decision to only those handful of employers with massive workforces. In its decision, the Court repeatedly emphasized the unique nature of the million plus claims against the company, thus inviting this cabining approach.

Finally, plaintiffs could take the complete opposite approach and “take Wal-Mart at its word.”  In this way, plaintiffs could embrace the decision and file massive individual lawsuits against employers. This approach could overwhelm companies if carefully organized by plaintiffs’ firms.

I detail each of these procedural tactics much more carefully here, and invite you to share your thoughts on these various approaches in the comments below. I will continue shortly with a discussion of the potential to use revised relief to help limit the Court's decision.


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