August 9, 2005

Dukes vs. Wal-Mart Class Action Appeal

The full audio of Wal-Mart's appeal yesterday is available online [57 minutes, 8.7MB] on the US Court of Appeals for the Ninth Circuit.

It starts off with a discussion of regression analysis, the law of large numbers, and the meaninglessness of statistical significance! The judges were independent and harsh to both the defendant and plaintiff lawyers. Both lawyers sounded smart but nervous.

One of the judges stated twice that, "Wal-Mart has a national policy of not having a national policy." Mr. Seligman noted that Wal-Mart's culture is broad and uniform, so that the absence of a formal national policy doesn't really matter.

One judge analogized the hiring of law clerks to the hiring of Wal-Mart managers: in both, subjective criteria dominates. "It may be that judges like the rest of humans have various stereotypes..."

Mr. Seligman was extremely effective, until he stated that Wal-Mart was not precluded in the damage phase from bringing up store-level pay variances. (Women should not be given damages if men were paid less than women in that store. [Ed: Shouldn't men get damages in that case? -- Well, yes.]). And his failure to be able to cite pages in the record during his oral arguments was bizarre.

Marketwatch thinks one judge gave WM sympathy:

If over 90% of stores show no disparity in pay, "that suggests to me if you look at the stores as a large group, you just don't find evidence of sex discrimination," Judge Andrew Kleinfeld as he questioned Boutrous.

Kleinfeld also indicated he had difficulty inferring discrimination from Wal-Mart's policy of giving local managers discretion for promoting employees.

"I have trouble with getting from there to sex discrimination," he said

But the SF Chronicle disagrees:

But the retailing giant got little apparent sympathy from a three-member federal appeals court.

The 45-minute hearing before the Ninth U.S. Circuit Court of Appeals in San Francisco was critical to the future of the suit, which claims the company had a systematic bias against women in pay and promotions. The court took the case under submission and gave no hint of when it might rule.

Posted by Kevin on August, 9 2005 at 03:30 PM