THE TROUBLE WITH "BRIGHT" PEOPLE - PART II

There is little doubt in the minds of anybody currently or previously in business, and who followed the "Walmart vs Dukes" class action lawsuit; that "something taint right."

Many if not most, if surveyed, would probably conclude that some of Wal-Marts actions in dealing with their female employees smacked of discrimination.

Based upon the tone and content of most in letters to the editor who responded to this recent Supreme Court decision, the members of the class action were severely short-changed by the decision.

That is not the subject of this blog.

What is our point is the continuance of a belief we are allowing otherwise bright folks to proceed on the assumtion that the rest of us are stupid. We use this case as just one more example.

Several rather bright plaintiff attorneys agreed with those hind sight letter writers and filed a "class action" lawsuit against Wal-Mart.

Unfortunately, the key ingredient in the Court's decision appears to be the greed of many of the class members as well as the attorneys representing the "class".

Both demonstrated that the use of the word "class" was a poorly chosen one - for many reasons.


The main problem in the alleged class-action suit was that this aggregation of plaintiff attorneys - claimed to have 1.5 million members who were discriminated against by Wal-Mart.

That would be "every" woman who had worked for Wal-Mart since 1998.

As USA Today said in their "Our View" column: "Given the number of women who have risen to senior jobs and management positions at the company, it's unrealistic to claim that every one of them was discriminated against."

However, the editorial staff - or at least the one(s) writing the column - also were upset because the 5 member male majority of the Justices chose "killing (the) huge sex-discrimination case against Wal-Mart women."

To some their conclusion suggested the decision was actually a male vs female issue.

Their concerns appeared to be that, by doing so, the Supreme Court had set too high a bar for proving bias by a large defendent such as Wal-Mart. They used the argument "look at statistics - not boilerplate policies."

To go too deep here would be to write a book as opposed to a blog.

All 9 Justices - both male and female - disagreed with the 9th circuit courts decision to uphold the certification of the class action lawsuit.

In addition, 5 of the 9 Justices - all male - killed the lawsuit by
their interpretation of whether or not there were additional issues

One such issue addressed was the blanket allegation that what Wal-Mart (might) have done was a pattern of practices in each of their stores.

They also declined to see the alleged statistics and their corresponding connection to discrimination to be a foregone conclusion.

My perception is that what the court was really saying - in their 5 to 4 decision was - by including every woman who had ever been employed by Wal-Mart since December, 1998 the plaintiff attorneys were guilty of "over reach".

USA's position is that they should have allowed the suit to go forward.This was sort of a "Let's throw everything up in the air and see what sticks" approach.

But, we see the decision as, finally, some wisdom and fairness in the well thought out examination of what is and what is not a valid "class action" lawsuit.

Traditionally, the goal of class-action lawsuits was to right a wrong and the filing of same resulted in many positive decisions that levelled the playing field.

Unfortunately,the filing of class action lawsuits got out of hand.

The lower courts were reluctant to decertify them as same. This is despite the fact that it was clear the plaintiff counsels' intention was to bludgeon the target defendent into submission by dint of their questionable allegation of the size of the class.

This, in effect, encouraged various plaintiff attorneys to see how much air they could insert into the balloon - before it might break.

Many of their lawsuits - as with this one - lumped legitimate plaintiffs in with those whose claims were clearly frivolous.

Their theory was simply that of: "bigger is better and size does matter."

There has been a growing trend to do so and too many weak kneed judges have allowed this travesty of justice to go on much too long. Faced with the outrageous size of the class members, many defendent companies have opted to "fold rather than fight."

Wal-Mart did not.

The unwillingness of their predecessor firms to take on "the plaintiff bar" served to provide us once more with a great example of bright people who assumed that the rest of the populace - or at least the jurists - were stupid.

Here's an analogy with something that took place in Philadelphia in the 70's - or about the time class-action lawsuits started to take off.

A streetcar (for those old enough to remember) could hold only "X" number of passenger. Let's say for the sake of simplicity that they held 40 people on average.

If the streetcar - which was locked into a set of tracks - was involved in an accident with another vehicle - the motormen (operators) would often open the doors to allow the passengers the opportunity to go on their way rather than wait for the police to conduct their lengthy investigation. Some did just that.

Strangely enough though, many opted to stay in the hot sweltering heat of the streetcars. By the time the police arrived the 40 folks previously on board had swelled to 80 "injured" people - many climbing on board the streetcar during the wait.

WELCOME TO THE CLASS REPRESENTED IN "WAL-MART VS DUKES"

As the obviously NOT "non-partisan" writer from the Chamber of Commerce wrote in their USA Today "opposing view": "Far too often plaintiff attorneys view the class-action device as a financial opportunity, but it is American business, workers and their families that pay the price for such class-action abuse. We simply cannot sue our way to prosperity."

Here's the final point of the blog - in quotes:

"Anybody who sees any similarity between what the plaintiff attorneys are doing and our last blog as to what our politicians are doing to you - please raise your hands - and having raised them, keep them up until you can pull the appropriate lever in your voting booth."

Don't encourage the erroneous assumption of bright people to become a reality."

Honest, you're not stupid!