Complex Civil Litigation Thoughts
Bad day for Wal*Mart. The Ninth Circuit upheld the district court's class certification. Being the Ninth Circuit, it's a 2-1 opinion. The Judge Kleinfeld opinion ends in a particularly stinging way (somewhat undercutting the dissent's earlier "respectfully") :
The district court calls this class certification “historic,”31 aSeems to me that Judge Kleinfeld's already filled the boiler with coal for the en banc or cert petition.
euphemism for “unprecedented.” In the law, the absence of
precedent is no recommendation. This class certification vio-
lates the requirements of Rule 23. It threatens the rights of
women injured by sex discrimination. And it threatens Wal-
Mart’s rights. The district court’s formula approach to divid-
ing up punitive damages and back pay means that women
injured by sex discrimination will have to share any recovery
with women who were not. Women who were fired or not
promoted for good reasons will take money from Wal-Mart
they do not deserve, and get reinstated or promoted as well.
This is “rough justice” indeed. “Rough,” anyway. Since when
were the district courts converted into administrative agencies
and empowered to ignore individual justice?