Check out this interview with the infamous Liza Featherstone:
STAY FREE!: I was amazed that some of these women--who had been through hell with Wal-Mart and had incredibly solid cases--would opt for a class-action suit, because they'd get a lot more money out of a private lawsuit. Also, they wouldn't have to worry about the case dragging on for years.FEATHERSTONE: Yes, actually, in their cases, they have the resources to pursue individual suits, but they really want to change Wal-Mart. If they were to sue as individuals, Wal-Mart would settle and it would never have to make any institutional reforms. The only reason these women are doing the class action--aside from the strength in numbers--is because they want to change the company.
STAY FREE!: But if a bunch of women sued Wal-Mart individually, wouldn't Wal-Mart see that they're losing money and see that discrimination is ultimately against their interest?
FEATHERSTONE: No, there would be so few cases that it wouldn't matter. A million dollars every few years is nothing to Wal-Mart.
STAY FREE!: How successful are class-action suits in changing companies? If the workers win, what then?
FEATHERSTONE: With a class-action suit, you can order a company to pay back wages to the people it wronged. You can order it to change its promotion system, to provide better incentives for promoting minorities, to post its jobs, and you can have some degree of enforcement. That's the ideal scenario. Those reforms are so much better than nothing, but they're ultimately kind of limited because they don't really change the balance of power between the worker and the employer very much. What you can accomplish with a class-action suit is nothing next to what you can accomplish if the workers organize. [Emphasis added]
Although Ms. Featherstone meant to imply that the economic damage of losing individual discrimination suits would not be devastating to Wal-Mart -- especially compared to the impact of a class action loss or unionization -- her assumptions undermine the morality and justifiability of the class action.
It is Ms. Featherstone's explicit estimation that the women (like Betty Dukes) who have plausible discrimation complaints agains Wal-Mart have the resources to sue individually. However, they chose to sue as a class because Wal-Mart has not discriminated against enough women to make a difference in the way the company operates if all the alleged victims actually won their cases.
This admission is startling, for several reasons. The most important being that it shows that the plaintiffs (and their legal team) probably have no good reason to believe that most of the women in the class were actual victims of discrimination by Wal-Mart. The plaintiffs have chosen to use over a million women as pawns in their lawsuit-cum-social-engineering experiment. They're nothing but a pile of bargaining chips...
Posted by Kevin on March, 30 2005 at 12:18 PM
Jonathan wrote:Kevin,
I hate to tell you this, but you are not always the smartest person in the room. The purpose of grouping individual lawsuits into a class action suit is to go out and find workers who fit into the class but did not know that they had a remedy. There are not enough lawsuits at present because comparatively few potential plaintiffs know about the action, not because Wal-Mart hasn't discriminated against enough people.
If you bothered to read Ms. Featherstone's book, you would know that.
-- March 30, 2005 03:35 PM ∞
Kevin Brancato wrote:Jonathan,
I hate to tell you this, but you are not always the smartest person in the room.
Why engage in petty tactics? Why use ad hominem? Did I ever attack you personally? Did I ever attack Ms. Featherstone personally? No. I hate to tell you this, but you make yourself look ridiculous.
The purpose of grouping individual lawsuits into a class action suit is to go out and find workers who fit into the class but did not know that they had a remedy.
Actually, the purposes are numerous, and one is very similar to what you indicate: the purpose is not to find those who "did not know they had a remedy" (what does that really imply?), but to lower the court and litigation costs of all parties, enabling less-well-off plaintiffs to free-ride on the attorneys of everyone.
Class actions are also meant to aggregate very small claims -- even up to a few hundred dollars -- that would constitute a nuisance and are not worth filing individually. When 40 million people are cheated out of $3 each, a class is warranted. In the Wal-Mart sex discrimination case, we are talking about a far smaller number of women who could get hundreds of thousands in damages each.
Class actions suits are meant to lower the financial barriers to bringing justifiable cases against a well-financed defendant, and to save time by trying them at once. They are also known to lower the financial barriers to unjustifiable cases. These competing characterizations are found all throughout the law and econ. literature on class action lawsuits (which I have read).
In the interview, Ms. Featherstone insisted that the named plaintiffs could carry on their cases independently, and that their main goal is now internal change. Of course, there are some women discriminated against by Wal-Mart who can afford to pay attorneys, and whose only financial means of taking on Wal-Mart would be through a contingency fee basis. Poor women working hourly at Wal-Mart are just such women.
Since you've read the book, does Ms. Featherstone demonstrate convincingly that those accusing Wal-Mart of discrimination could -- for some reason -- not retain attorneys on a contingency-fee basis? I would find it hard to believe that she had good data on the financial status of the un-named plaintiffs, and the strength of their cases, but I guess its possible.
There are not enough lawsuits at present because comparatively few potential plaintiffs know about the action, not because Wal-Mart hasn't discriminated against enough people.
The whole idea of getting the class certified for all women is gaining power over Wal-Mart inside and outside the courtroom. This is not really about providing damages for actual discrimination. Ms. Featherstone said:
If you sue Wal-Mart as an individual, the media isn't going to care very much. But if you're suing Wal-Mart on behalf of 1.6 million other women, as Betty Dukes is, you get an enormous amount of attention, and that embarrasses the company.In short: Unnamed plaintiffs believe they were discriminated against; they know discrimination is illegal. They could sue separately. Those chose not to because either they didn't think they would win or they couldn't find an attorney would thought his contingency fee would come in. The class throws together a number of probably legitimate cases of discrimination along with a million illegitimate ones.
If you bothered to read Ms. Featherstone's book, you would know that.
Guilty as charged. I admit that I have not read Ms. Featherstone's book. Again with the snide commenting style. Do you find this helpful?
-- March 30, 2005 04:16 PM ∞
