Walmart: Too Big To Sue, Too Big to Fail. Corporate America Makes it Look Easy

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29 June 2011

The decision by America’s highest court, which struck down a gender discrimination lawsuit brought against Walmart by 1.6 million female employees, was sadly no great surprise.  In fact, it’s right out of the big business handbook, where week after week Chief Justice Roberts zealously advocates for the rich against the poor; just as a young freshman Senator from Illinois predicted at Justice Roberts’ confirmation hearings.

“… when I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak.”

Coming out of TARP and the 2008 financial meltdown, the concept of “too big to fail” became popular.  No matter how reckless Citigroup or JPMorgan Chase behaved, the government would not allow them to fail.  Similarly, it seems, the high court will not allow lawsuits to proceed against the biggest and most powerful market participants.  When given the choice, it is the employee or consumer that is left without redress; meanwhile the more powerful market participants (Walmart, Citigroup, AIG, and General Motors, just to name a few) seem to get the benefit of the doubt.  “Heads I win, tails I win too.”

To be sure, the legal analysis by the Supreme Court in Dukes v. Walmart seems plausible and the case certainly had difficult legal and factual hurdles to surmount.  Significantly, how can there be “common issues” when the class includes thousands of stores throughout the country, each run by a manager with broad discretion?  But time and again the consumer or the employee seems to be handed the short end of the stick.

For the employer, the corporation, the strong—the Roberts Court time and again finds a way to rule in their favor.  The same is not true for consumers and your average Joe.  And the landscape ahead unfortunately remains bleak.  With the recent decision in Concepcion and now the Walmart holding, no doubt a lot of meritorious cases—with real victims—will be lost, and lawyers will think twice about investing millions of dollars in those tough cases just in the gray area of doubt.  But alas, the pendulum will swing back and “in the long run,” as John Maynard Keynes often said, we will find equilibrium.  But with Justices Roberts, Alito and Thomas in their fifties it may take a generation before the tide turns and the  Court again becomes an unbiased arbiter of fairness.

Steven Berk
Berk Law PLLC