November 3, 2005

Ted Frank on Wal-Mart's Mysterious Lawsuit

Most of you know that Wal-Mart fired Tom Coughlin for misuse of corporate funds. (Actually Coughlin retired in January, and was removed from the board in March). A big problem with Wal-Mart's civil claim against Coughlin is that the two signed a prior agreement basically absolving Coughlin from telling Wal-Mart about or litigating over conduct that -- as stupid as it sounds -- seems to include pilfering the company coffers. Wal-Mart wants that agreement void, but Ted Frank notes that this is not in Wal-Mart's long-run interest:

Surely the corporation would be better off on the whole with a legal rule that strictly enforces releases than one that judges the validity of a release on a case-by-case basis
The judge in the civil case has thrown out any and all claims by Wal-Mart for damages before they fired him.

Posted by Kevin at 4:57 PM

September 15, 2005

Tom Coughlin

The BCDR has an update, which seems like more of the same to me...

Posted by Kevin at 9:11 AM

August 15, 2005

Power Outage Makes WM a Short-Term Prison

Let's put this one in the lawsuits category, until further notice.

On Ask Metafilter, Lady Bonita tells us of not being permitted to leave Wal-Mart for 20 minutes after a power outage at 10PM at her local Wal-Mart Supercenter:

We were escorted (herded?) with flashlights to the front of the building and told we couldn't leave until power was restored . Babies and kids (including mine) were scared and crying and there was a lot of general confusion. Reason we weren't allowed to leave? They wanted to make sure we weren't stealing anything. Eventually, after 20 minutes or so, when it was obvious the power wasn't going to quickly be restored, they let us leave. After checking us over with flashlights.

What I want to know is if they had any right to do this? Were we being held hostage, kidnapped, falsely imprisioned? And how the hell could I have gotten out of there if they had insisted we stay any longer?

I'm no criminal lawyer, and have no competency to discuss the right and wrong of the conduct of Wal-Mart associates. But I think if they had let people leave, and something had happened to somebody, they would be subject to severe civil penalty.

(Thanks to this commenter for kindly linking to ALP).

Posted by Kevin at 10:34 PM

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 at 3:30 PM

July 13, 2005

Utah Supreme Court Rules Sandy WM Must Be On Ballot

Via a comment on WUWM, the Utah State Supreme Court ruled that the citizens of Sandy fully complied with the law and should get a referrendum about a zoning change:

The court ruled this zoning issue is subject to a referendum, the group got enough signatures, and it ordered Sandy to put the issue on the ballot, meaning voters will decide if this old gravel pit can become home to big-box retailers Walmart and Lowes.
More here, with a map of the proposed site:
The state's high court said Friday that Save Our Communities, a group of Sandy residents who have fought big box development, had enough signatures to force a referendum on a zoning change that would allow development on a 107-acre former gravel pit at 1000 East and 9400 South....

At issue was the percentage of signatures needed for referendum petitions. The court clarified that zoning changes are not land-use laws, which require referendum petitions to have signatures of 20 percent of residents who voted in the last gubernatorial election. After this decision, zoning law referenda need signatures from 10 percent of voters.

I'm sorry I missed this when it was announced two weeks ago. As surprising as this may seem, I support this ruling (see caveat below), since the law is the law, and should be followed and enforced. Given the increasing powers weilded by zoning boards, they must be subject to and constrained by the people. However, for the consumers of Sandy, I hope the referrendum fails...

The full opinion of the court can be found here (in PDF).

UPDATE: I've read the opinion, and have a few comments. I concur that since Sandy has a Mayor-Council form of government, and that the council is the legislature, and that all legislative acts are referrable, that the referrendum is allowed under law.

But the court provides ZERO reasoning or evidence as to why this zoning change is not a detailed "land-use law" subject to a signature requirement of 20% of the previous gubenatorial voters, instead of the more lenient 10%. (The referrendum gatherers got 16.2% of the voters). It seems pretty sloppy and subjective to me:

The salient features shared by the three examples listed in the statute is comprehensive scope and general applicability. All three of the examples listed by the legislature relate to situations in which a municipality has
completed a highly involved undertaking, be it the development of a comprehensive zoning scheme or the annexation of property, and is attempting to finalize that process through a legislative act. Although even a text amendment to a zoning category can be a complicated and involved process, we are persuaded that such an amendment is not of the same character as the comprehensive acts
listed in the statute.
I disagree that "general applicability" is a salient feature of all three examples, since an "annexation ordinance" (one of the three specified classes of "land-use laws", is not of general applicability. Is 2/3's enough to create generality? Beats me, and the court doesn't argue. The law is unclear here, and it seems to me that the court used its judgment while pretending not to do so.

Posted by Kevin at 10:31 AM

July 12, 2005

Shoppers Sue WM for Alleged Associate Racism

Allegedly, WM associates challenged black people to demonstrate that they had not stolen goods, but left their white companions alone:

Ten shoppers filed a lawsuit Tuesday against Wal-Mart Stores Inc., alleging that employees in the Avon store targeted them as potential shoplifters based on their race.

The lawsuit, filed in U.S. District Court in Boston, claims that in 2002 and 2003, employees at the store followed the shoppers, then searched their shopping bags, purses and clothing. None of the shoppers was charged with shoplifting....

In December, the shoppers offered to settle the case for $400,000, according to the lawsuit. Wal-Mart offered to enter into private mediation with the shoppers, but did not make a settlement offer.

Is suing WM in Boston for conduct in Alabama a form of venue-shopping?

Posted by Kevin at 4:51 PM

Alwayslowprices.com is On Hold

We previously noted that Alwayslowprices.com had disappeared. I just looked, and the cybersquatter corporatedomainnames.com is back online, and it lists the domain .com as being "ON HOLD".

I'll bet nobody wants to touch it with a 9 ft. pole.


Also, here's an update about Wal-Mart's claim against us: _____

That's right, I've heard nothing, and will continue blogging about Wal-Mart.

Posted by Kevin at 4:09 PM

July 2, 2005

Patrick Brady's Award Reduced to $2.5 Million

Via Overlawyered, we find that Patrick Brady, whose celebral palsy was the basis of his employment discrimination lawsuit against Wal-Mart (initially reported here), has had his award reduced from $7.5 million to $2.5 million:

In Patrick S. Brady v. Wal-Mart Stores, CV 03-3843, plaintiff Patrick Brady, who suffers from cerebral palsy, sued Wal-Mart under the federal Americans with Disabilities Act and state law. In February, a Central Islip, N.Y., jury found that personnel at the store in Centereach, N.Y., violated federal and state laws by making a prohibited inquiry before giving Brady an employment offer.
That Brady wanted to be moved to a different position didn't matter.

Posted by Kevin at 3:40 PM

April 25, 2005

WM uses DMCA against Parody

Daniel Papasian registered this Wal-Mart Foundation parody, and now Wal-Mart is using the DMCA against him. I have great sympathy for those who want to keep corporate power in check, and Wal-Mart has plenty of it, but I find Daniel's defense of his website to be mostly over the top:

They didn't even bother to contact me to ask that anything be removed from my site. They're not worried because my page has a similar layout or design. They're worried because my ideas are a threat to them. They're threatened by my belief that big corporations like Wal-Mart have too much influence on the world.
Preposterous! I generally support WM (and other big businesses), and they sent me something worse in tone and intent! Trademark attorneys do business the old fashioned way; they demand your surrender!

How would Daniel have liked for Wal-Mart to have contacted him? He used false information when registering his website, as can be seen on his WHOIS record; why should Wal-Mart's attorneys search for him and contact him in a friendly manner asking for anything?

Daniel's ideas are so damn common that Wal-Mart can't avoid them among its own employees! I find it distasteful that he is using the lawsuit as an activist front, when 1) he knew WM would come after him, and 2) he knows the real reason that Wal-Mart is going after him have nothing to do with his lefty opinion and everything to do with protecting intellectual property. If Daniel had also registered walmart--foundation.org and put on it overwheliming praise of WM's work, they would have sought to shut that down too.

Posted by Kevin at 3:35 PM

April 18, 2005

Gender Discrimination

Due to a glaring silence in the media, you may not know that the 13% unionized darling of the big-boxes, Costco, is being sued in an attempted class-action sex discrimination lawsuit:

The latest suit seeks class action status and could include as many as 650 former female Costco workers across America subjected to gender discrimination.

Fewer than one in six of Costco's senior store managers are women, yet the company's workforce is roughly 50 percent female, according to the suit.

Monetary damages were not specified, but attorneys said damages could reach into the millions.

"There is no clearer example of a glass ceiling than how Costco promotes workers into assistant manager and general manager positions," said Brad Seligman, executive director of The Impact Fund and the lead attorney on the case. "There is no promotion system at Costco. Women must rely on the subjective and arbitrary decisions of Costco's all-male senior management."

Seligman was lead counsel on the mother of all sex discrimination class actions against retail stores. The $107 million settlement he won from Lucky Stores Inc. in 1993 helped lay the foundation for The Impact Fund.

Northern District Chief Judge Marilyn Hall Patel, who was the trial judge in the Lucky Stores litigation, was assigned Tuesday to the Costco case.

The same arguments made in Ellis vs. Costco Wholesale Corporation are currently being used against Wal-Mart in Dukes vs. Wal-Mart Stores, Inc..

In fact, both the Costco and Wal-Mart cases are spearheaded by the Impact Fund.

I'd just like to point out the almost incredible similarity between the Wal-Mart Class and CostCo Class websites. The women pictured in both websites are the same, and are, in fact, wearing the same clothing.

For a few months, I've been reading through the Wal-Mart filings, testimonies, a d reports, and in a month or so, I'll have many posts regarding the allegedly "expert" testimony, "scientific" methodologies, and legal maneuvers on both sides.

Posted by Kevin at 1:58 PM

April 7, 2005

Should I Hate Wal-Mart? Why?

A rude commenter on Catallarchy's post about the C&D letter to ALP made me think about how new evidence in the depate over Wal-mart is filtered by preconceived notions, and generally how these pieces are fit into one's view of the world.

In some people's minds, Wal-Mart is evil, and this seems to explain everything. I don't share this view, even after the C&D order.

One guy thinks the potential lawsuit should change my mind about WM:

I'm quite pleased that even legal threats from the company he boosts hasn't broken through to Brancato. Well, amused, anyways.

To which I replied:

If by "broken through" you mean "reduced his brain to the consistency and usefulness of jello, and made him a hyperemotional nut guided by snap judgments", then no, WM's legal threat hasn't "broken through".

I'm still quite capable of rational assessment.

In another instance, on MetaFilter, some commenter noted that WM had to send in the goons to stop me, when I had specifically noted that Wal-Mart did NOT send in the goons.

I replied on MetaFilter:

I have openly stated that Wal-Mart�s intention is not to stifle free speech (they have no apparent problem with walmartsucks.com and the like), but to rightfully defend the integrity of its intellectual property. ALP just happens to be in their way.

That in my case there is a conflict between property and speech goes without saying. I understand that legal conflict is not a battle to the death; it's just another form of conflict, but one which we don't face everyday.

Posted by Kevin at 8:47 AM

April 6, 2005

Tech Law Advisor: ALP is Toast

The most convincing argument that I will lose any contest with Wal-Mart has been provided by Kevin J. Heller of Tech Law Advisor:

The Taubman decision taught us that to successfully squat on the domain name of a business owner, we need a disclaimer and a non-commercial site. Also, non-commercial does not mean that you run an unsuccessful business venture.

The moral of the story is - that when it comes to free speech, don't be penny wise with adsense and pound foolish by giving up your right to speak.

Mr. Heller is an expert, and sadly, I think he has the law on his side. Why couldn't you just let me live in the dream world of Kevin vs. Goliath a little longer?

Posted by Kevin at 11:26 PM

April 5, 2005

Wal-Mart: ALP Infringes on Our Trademark

After a year of my blogging about Wal-Mart on ALP, Wal-Mart has had enough. WM has sent its attorneys after me -- to stop me from using their slogan "Always Low Prices", and to scoot me off the alwayslowprices.net domain.

Let me be clear at the outset; there is no scandal here. I am not outraged. This is about business and control of property -- not persecution. Unlike GM, WM did NOT send a goon squad. And though I find many of Wal-Mart's claims spurious, I am not a lawyer, and I will have to consult with my own lawyers before proceeding formally. And though they will tell me to not discuss the matter any further, I think transparency is more important than most lawyers do.

I promise to fight to keep the alwayslowprices.net domain and Always Low Prices name. And I want the blogosphere's help and advice on how to proceed.

Here is a cropped PDF copy of a letter sent to me by email and snail mail by Wal-Mart's attorneys regarding my use of their "logo". (I have removed sensitive contact information).

What is the claim?

The claim is that I am in voliation of the Lanham Act -- �1125(a), �1125(d), and �1114. Basically that I pretend to be allied to Wal-Mart, and that I use Google Ads to profit off of Wal-Mart's trademark.


I am sympathetic to Wal-Mart's desire to control its private property, but my use of this domain has in no way taken business away from them. Indeed, as one of Wal-Mart's most ardent defenders, taking this domain away from me is likely to hurt Wal-Mart in the short and long run. Who else regularly faces off against Wal-Mart's opponents, union sympathizers, and the like on the internet?

Why are they after me after a year of blogging?

WM filed for a service mark for "Always Low Prices" (with a few variants) on 2/2/04, for both retail store services and online retail store services. As of today, according to the US Patent and Trademark Office, WM has not had this sloagan registered as a trademark. However, their claim went forward on March 29, 2005, and will likely have little problem under further review (unlike WM's older slogan Always the Lowest Price, which was without a doubt, a bald but understandable lie).


As far as Wal-Mart's specific claims go, I will reply honestly:

I admit that I have their logo prominently displayed. But I think it's a fair intellectual use. Low Prices are the primary consumer aim of Wal-Mart, and should be the core of discussion about Wal-Mart. I don't think anybody has ever been confused ALP and WM, walmart.com, walmartstores.com, or walmartfacts.com. Does anybody actually think that Wal-Mart would stick "The Best and the Worst about Wal-Mart" on top of its own website?

The URL, alwayslowprices.net, is the same as the blog nam -- that's the entire point of name recognition. Anybody who comes to ALP will realize immediately that they have not come to Wal-Mart, but to a site that discusses Wal-Mart. If the URL was so critical to Wal-mart's business, why didn't they buy it 10 years ago, when they starting using their slogan?

Of course, I should have had a disclaimer up on the sidebar the entire time; As Kevin Drum once noted, I did at the beginning, but in one of my reformattings, I must have dropped it by accident. So, a new disclaimer is up.

Wal-Mart claims that I pretend to be a part of Wal-Mart by linking to walmartstores.com under the label "WM News". Does anybody find this an even remotely sensible position?

Wal-Mart claims that my use of advertising for services that "might be of interest to Wal-Mart's partners and vendors" concurrent with use of their trademark and name on the blog is against "U.S. law" and my "domain name agreement."

The entire $95.83 I have collected from advertising has not even been enough to pay for the $11 monthly bandwidth charges. Though I'd rather not have to, I have decided to take down the advertising. I know that free speech isn't free, and I'm willing to pony up.

Posted by Kevin at 3:29 PM

March 30, 2005

Interpreting Liza Featherstone: WM Not Guilty of Widespread Discrimination?

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 at 12:18 PM

March 23, 2005

Markets in Everything: Wal-Mart Litigation Edition

Plan on suing Wal-Mart? Don't do all that background research yourself! Contact the Wal-Mart Litigation Project for all your prepackaged taxonomy needs:

The information compiled by the Wal-Mart Litigation Project is organized by type of case into a taxonomy, or set of categories. Each category includes all the material we have on file concerning that particular type of suit (e.g., slip and fall involving coat hangers on the floor). The information packets offered for sale by the Project contain summaries of the following types of materials:

* Verdicts and Settlements Against Wal-Mart

* Opinions and Appellate Rulings

* Complaints / Petitions

* Miscellaneous Documents

* Defense Verdicts

The prices -- from $30 for Assault Upon Customer by Customer (2 items, $30) to Merchandise - Merchandise Being Moved or Shoved by Employees (38 items, $200) seem reasonable to me.
The Wal-Mart Litigation Project has identified over one hundred different types of known lawsuits against Wal-Mart.
In truth, the website seems a few years behind the times, but I gather that the earlier material is the most difficult to research anyway.

(The Markets in Everything title was swiped from Marginal Revolution).

Posted by Kevin at 4:18 PM

March 18, 2005

Sharp Shoes

Back to some more nonsense:

A man is suing Wal-Mart for injuries he says he sustained while trying on a pair a shoes.

Harley Jordan of Fall River, near Halifax, claims the injury occurred while he was shopping in a Wal-Mart store in Lower Sackville, N.S., on May 2, 2001.

While trying on a pair of shoes, he says his foot was punctured by a product security tag hidden inside.

Posted by Kevin at 9:25 PM

$11 Million for Hiring Illegal Aliens (UPDATED)

CNN/Money:

WASHINGTON (CNN) - Retail giant Wal-Mart will escape criminal sanctions but pay $11 million to settle claims stemming from a long-running federal investigation of illegal workers hired by the company's cleaning contractors, CNN has learned.

The settlement, scheduled to be announced Friday, also calls for $4 million in criminal forfeitures by 12 firms Wal-Mart (Research) hired to provide janitorial services, sources familiar with the agreement said.

Details would be nice...

The AP:

Many of the janitors from Mexico, Russia, Mongolia, Poland and a host of other nations worked seven days or nights a week without overtime pay or injury compensation, said attorney James L. Linsey. Those who worked nights were often locked in the store until the morning, Linsey... (who is representing the workers in a civil suit against the company that is still pending in New Jersey).
Note that WM had not been accused of not paying FICA or medicare taxes on these employees.

According to Reuters , WM will hold a news conference later to tell us blah blah blah.

UPDATE: Only lower management knew:

"We reiterate, as we have from day one, that our senior management team knew nothing about the employment practices of the contractors until the government contacted us seeking out cooperation," said the spokesman, Gus Whitcomb.

UPDATE 2: Marketwatch says that we need to at least double the $11million figure:

Wal-Mart spokeswoman Mona Williams said the company considers the settlement "a lot of money" that will go "to help support enforcement of immigration laws." Wal-Mart also has put in place new initiatives aimed at preventing future problems.

The company told reporters it had not yet calculated the cost of those programs. But it could be lot more than the settlement amount.

"It may be that the fine itself is only a small part of the cost. There is a pretty major oversight system the company is going to have to develop," said Greg Siskind, an attorney who specializes in immigration law at Siskind Susser in Memphis, Tenn. "For a company the size of Wal-Mart to put in the kind of system that is in this decree will cost well in excess of $11 million."

LAST UPDATE: Of course, Wal-Mart's press release reads like a wonderfully prepared news article (this is how things are "supposed to" be done):

WAL-MART, GOVERNMENT SETTLE IMMIGRATION INVESTIGATION
No Criminal Charges Filed Against Company or its Associates

BENTONVILLE, Ark., March 18, 2005 � Wal-Mart Stores has resolved on a civil basis the Department of Justice�s more than four-year-long investigation into the employment practices of its former floor-cleaning contractors. The agreement came after the government concluded its criminal investigation and announced it would not pursue charges against Wal-Mart or any Wal-Mart associates.

As part of this civil settlement, Wal-Mart has agreed to support the fair enforcement of immigration laws, including making a payment of $11 million to the government.

�The government can now use the funds for training and other initiatives that lead to better detection and prosecution of individuals and companies that prey on undocumented individuals,� said Tom Mars, Wal-Mart�s general counsel. He went on to emphasize that all businesses have a responsibility to remain vigilant.

�Today we are acknowledging that our compliance program did not include all the procedures necessary to identify independent floor cleaning contractors who did not comply with federal immigration laws,� Mars said. �We will use this as an opportunity to improve and be a better, more tightly run business as a result.�

Wal-Mart has already begun building stronger internal controls into its contractor review process. The company has also instituted a policy that requires floor cleaning at its domestic stores to be done by Wal-Mart associates.

The civil consent decree and settlement documents between Wal-Mart and the government read in part:

� �� enforcement actions undertaken by Special Agents of the Immigration and Naturalization Service, and its successor agency, Immigration and Customs Enforcement, against floor cleaning contractors performing cleaning services at various Wal-Mart stores in the Middle District of Pennsylvania and elsewhere documented that independent contractors used by Wal-Mart to provide floor cleaning services were knowingly hiring, recruiting and employing [undocumented workers] in violation of Title 8 ��

� �� Wal-Mart did not have knowledge, at the time the independent contractors initially were hired, that the independent contractors knowingly hired, recruited or employed [undocumented workers] in violation of Title 8 ��

� �� following a thorough investigation, the United States concluded that federal criminal proceedings involving Wal-Mart, its directors, officers or [associates] would not be appropriate ��

Posted by Kevin at 11:25 AM

March 17, 2005

WM vs. Class Actions

Aaron Bernstein in Businessweek:

Corporate America could find it a whole lot easier to fight off employment class actions if Wal-Mart Stores Inc. (WMT ) prevails in a sex discrimination case to be heard soon by the U.S. Ninth Circuit Court of Appeals. Indeed, a Wal-Mart victory could tilt the playing field for virtually all of these kinds of suits, which have plagued Boeing (BA ), Coca-Cola (KO ), and dozens of other large employers over the years.
This seems very optimisitic to me, but I'm no lawyer. Later on, we find that:
The thrust of Wal-Mart's appeal is that the district judge ran roughshod over the company's constitutional rights to due process and to a jury trial. Despite the company's reputation for micromanaging down to the penny, it argued that pay and promotion decisions are made almost entirely by local store managers. So the judge should have ignored the plaintiffs' statistics showing large nationwide disparities in the way female employees are paid and promoted. Instead, it should hear only store-level suits.
This is an excellent strategy for WM to take, since the plaintiffs themselves had to assert that discrimination occured because WM gave too much control to store managers:
Central to the plaintiffs' case is the contention that Wal-Mart is a heavily decentralized company, in which managers are given wide latitude to make hiring, pay and promotion decisions. This, the lawyers argue, is a bad thing, because it leaves too much discretion in the hands of store managers, who can thus be influenced by their own negative stereotypes. Under this scenario, decentralization in management, which has been one of the core productivity-boosting principles of American business in the last two decades, becomes something that companies must avoid or limit.
See older posts on George's Employment Blawg for some more info, and an older article about the data used to buttress both sides. And via Point of Law, we find a law.com article that thinks the Dukes case could be very bad news:
Dukes v. Wal-Mart Stores, Inc., may be a sign of things to come. Employment class actions are on the upswing, say labor and employment lawyers at four large firms. Costco Wholesale Corp. and Sav-On Drug Stores, Inc., are among the other large companies facing high-profile class actions....

The effects of the class certification in Dukes v. Wal-Mart may be far-reaching, says Emory University labor and employment law professor Charles Shanor. Wal-Mart argued that its 3,200 U.S. retail stores made wage and promotional decisions independently of one another, so any discrimination claims deserved to be treated store-by-store, case-by-case, rather than through a class action. But the district court disagreed, allowing the plaintiffs' claims to proceed based on an overall statistical picture that showed female employees were disproportionately paid and promoted less than their male colleagues.

"I'd tell [GCs at large companies] to watch Wal-Mart, because it will have a huge impact on your flexibility in decentralizing employment decision-making," says Shanor. Wal-Mart has appealed the certification; at press time the 9th U.S. Circuit Court of Appeals had not yet ruled on the appeal.

Because of the unprecedented size of the class in the Wal-Mart suit, it's easy to forget that the content of the case itself -- alleged gender discrimination in a large corporation's employment practices -- has ramifications, too. In certifying the class, the court was concerned that promotion and salary decisions were characterized by "excessive subjectivity" -- a phrase that could turn out to be fraught with peril for many other companies. "At the end of the day, the evaluation of performance necessarily entails subjective judgment, unless there's a completely formulaic description of duties and expected results," says associate GC Reginald Govan of the Federal Home Loan Mortgage Corporation, based in Maclean, Va. In August Wal-Mart rival Costco was hit with a suit, also seeking class action status, that echoes the claims of the Wal-Mart action.

Posted by Kevin at 12:21 PM

February 24, 2005

$7.5 Million for Discrimination Against Disabled Man

As I am blogging from Long Island this week, this story seems appropriate. $5 Million of the total award is punitive damages, which will no doubt be reduced.

The plaintiff, 21-year-old Long Island resident Patrick Brady, suffers from cerebral palsy. According to the plaintiff's attorney Douglas Wigdor, Brady applied for a position in the pharmacy unit of a Wal-Mart store in Centereach, NY. and was hired in the summer of 2002.

But Brady, who worked for just four days before he quit, claimed he was soon reassigned to other responsibilities that included collecting garbage and shopping carts in the Wal-Mart parking lot.

WM's line in this case is rather strong:
"As soon as Mr. Brady expressed dissatisfaction with his position, we transferred him to another position that he requested....

Posted by Kevin at 9:02 PM

February 20, 2005

Wal-Mart and Grand Theft Auto Made Me Do It

Ah, a new equation thrown into the mix: Wal-Mart + Violent Game = $$$ + Get out of Jail Free Card:

A LAWSUIT filed in Tuscaloosa, Alabama, claims that the video game Grand Theft Auto led a teenager to shoot two police officers and a dispatcher to death in 2003, mirroring violent acts depicted in the popular game....

The suit alleges that Devin bought Grand Theft Auto III at the Gamestop in Jasper and Grand Theft Auto: Vice City at the Jasper Wal-Mart when he was under 17....

'What has happened in Alabama is that four companies participated in the training of Devin... to kill three men,' attorney Jack Thompson told The Tuscaloosa News, which reported the suit's filing.

We'll see if jurors will believe this...

Posted by Kevin at 3:09 PM

February 13, 2005

Bush DOL Gives WM Preferential Treatment?

At Confined Space, Jordan Barab notes that WM has settled a charge of child labor violations and taunts Bush's labor department, writing that it is doling out unique priviliges to WM--it now gets a heads up when being under investigation by the DOL Wage and Hour Division:

Wal-Mart, the world's largest retailer agreed to pay $135,540 to settle federal charges that it violated child labor laws in Connecticut, Arkansas and New Hampshire. As part of the agreement, revealed yesterday after it was secretly signed in January, the Labor Department agreed "to give Wal-Mart 15 days' notice before the Labor Department investigates any other 'wage and hour' accusations, like failure to pay minimum wage or overtime."
Jordan goes on to quote highly partisan George Miller, who we already know, hates WM's guts. But more importantly, in a different post, Jordan discusses WM's policy of locking in night-shift employees in high-crime areas.

WM should be punished where it violates the law, and this lock-in behavior sounds awful, but I have a problem with making individual cases look like a company-wide pattern of abuse. I'm simply not convinced that, on a per-store basis, WM is any more or less a labor violator than any other retailer.

Posted by Kevin at 1:50 PM

February 4, 2005

Wal-Mart Wins Appeal

Wal-Mart has won an appeal in a lawsuit filed by pharmacists concerning overtime pay. In the LA Times:

Wal-Mart Stores Inc. will get another chance to argue its case that it shouldn't have to pay millions in overtime to pharmacists after winning its appeal.

The U.S. 10th Circuit Court of Appeals ordered a new hearing in the case, saying a federal judge that ruled the company had violated the law by failing to pay overtime acted too quickly and should reconsider the evidence.

Pharmacists said the Bentonville, Ark., retailing giant adjusted their salary and hours so often that they were in fact hourly employees eligible for time-and-a-half for overtime.

Wal-Mart lawyers argued that the trial judge should have heard evidence about Department of Labor rulings that salaried employees' pay could be adjusted if economic conditions warrant.

Posted by Bob at 2:20 AM

January 7, 2005

WM Settles Gun Lawsuit

As noted earlier, WM no longer sells firearms in CA. That might change in the future, as it settled a lawsuit by paying the government $14.5 million:

The settlement of the largest of its kind since Lockyear's office created its firearms division in 1999. Wal-Mart agreed to stop sales of firearms in California last year; the settlement calls for the retailer to reform its practices if it resumes the sale of guns....

Lockyer said that in agreeing to the settlement, Wal-Mart "cooperated in trying to respond to our demands that they observe our laws so that ex-felons, mentally ill and other prohibited [people] don't get weapons."

Posted by Kevin at 11:19 AM

December 21, 2004

Wal Mart Sued Over Suicide

This sad example demonstrates that more privacy can have negative outcomes:

DALLAS, Texas (AP) -- Near the end of her short life, Shayla Stewart, a diagnosed manic-depressive and schizophrenic, assaulted police officers and was arrested for attacking a fellow customer at a Denton Wal-Mart where she had a prescription for anti-psychotic medication.

Given all those signs, her parents say, another Wal-Mart just seven miles away should have never sold her the shotgun she used to kill herself at age 24 in 2003.

Her mother, Lavern Bracy, is suing the world's biggest store chain for $25 million, saying clerks should have known about her daughter's illness or done more to find out.

The case, filed earlier this month, has reignited a debate over the confidentiality of mental health records and the effectiveness of background checks on would-be buyers of guns.

"We know that if they had so much as said, `Why do you want this?' we would not be having this conversation because Shayla would have had a meltdown," said her stepfather, Garrett Bracy.

The Bracys said Wal-Mart's gun department could have checked Wal-Mart's own security files or the pharmacy department's prescription records before selling her the weapon.

Wal-Mart spokeswoman Christi Gallagher declined to comment on the lawsuit.

But pharmacy prescription records are confidential under a 1996 federal law, so stores cannot use them when deciding whether to sell a gun.

Also, Wal-Mart did a background check on Stewart, as required under federal law, but through no fault of its own, her name did not show up in the FBI database. The reason: The database contains no mental health records from Texas and 37 other states.

Update 12/22: Overlawyered has the skinny, natch:
Problem 1 = Federal law prohibits revealing pharmacy records in running firearm background checks.

Problem 2 = Texas law prohibits the publication of mental health records without the patient's approval.

Problem 3 = How does an attack on a third party result in any evidence that someone is suicidal?

Posted by Kevin at 4:05 PM

December 10, 2004

WM Sued for Lack of Parental Advisory Label

Those who are wondering why WM will not stock certain books in its stores might be interested in this new lawsuit:

WASHINGTON COUNTY - A southern Washington County couple who bought an Evanescence compact disc and DVD at a Frederick, Md., Wal-Mart filed a class action suit in Maryland on Thursday because the CD did not have a parental advisory label about explicit language, according to Washington County Circuit Court records.

Melanie and Trevin Skeens, of Kaetzel Road, are asking for either the CD to be removed from shelves or a warning label put on it, said Jon D. Pels, their Bethesda, Md., attorney. Pels is a partner with Pels, Anderson & Lee LLC.

They also are asking for up to $74,500 for each class member, people who bought the CD in Maryland, according to the lawsuit and Pels...

Wal-Mart officials had no immediate plans to pull the CDs from the stores' shelves, Whitcomb said.

The lawsuit states Wal-Mart "holds itself out as stocking music that does not contain explicit language" and alleges the discount chain knew about the song's explicit lyrics because they were dubbed out of a free sample on Wal-Mart's Web site.

Posted by Kevin at 9:37 AM

November 19, 2004

Unpaid Work at WM

In an extremely short New York Times article, Stephen Greenhouse insists that at least one person was still working off the clock at WM--and names him:

But some employees say their managers still demand off-the-clock work. Aaron Payne, who earned $6.25 an hour working in the sporting goods department of a Wal-Mart in Camden, S.C., said the assistant manager made him work many hours last summer without pay.

"I'd be clocking out, and he'd point out all this stuff, saying, 'This isn't done, and if you leave before this is done, you won't have a job Monday morning,' '' said Mr. Payne, an Army veteran who served in Iraq. "It happened almost every night. I'd usually have to stay one and a half or two extra hours."

Question: Who is Mr. Payne of SC, and how did Mr. Greenhouse of NY find him? A search of Google and Lexis-Nexis turned up no previous "Aaron Payne" Wal-Mart appearances. Mr. Payne's treatment was deplorable, thought not inconsistent with Wal-Mart's quasi-official explanation that there will always be a few bad apples in management positions who disregard corporate policy. How can WM better stop this sort of worker abuse?

Posted by Kevin at 2:47 PM

November 9, 2004

Who is Jocelyn Larkin?

If you oppose WM for any reason, I'd advise you not to exaggerate, because you might sound like a loony activist, instead of a well-respected (or feared) lawyer.

Jocelyn Larkin of the Impact Fund, a lawyer assisting in the Betty Dukes sex discrimination class action, sprouted this in September:

What is the nut of the Wal-Mart case?

In every store in every job in the country, women are being paid less than men for doing the same exact job.

Ms. Larkin should know better. That WM discriminates in wages in every single store, every job, everywhere has NOT been demonstrated using the wage data she used the courts to forcibly extract from WM. Nor has this been confirmed from any other data source. It doesn't even pass the laugh test.

In fact, WM has specifically denied this:


The company said it will appeal this latest decision, claiming the lawsuit ignores the fact that thousands of female employees make more than their male counterparts. A spokeswoman said Wal-Mart continued to re-evaluate its employment practices but that a new pay structure and new rules on filling job vacancies had been introduced.
Ms. Larkin, you should be representing the women who have been unlawfully terminated, sexually harrassed, or otherwise illegally interfered with. Stop playing ideological games against WM... The WM case might be "the largest" civil rights case--in terms of numbers--, but it is nowhere near the most important for the advancement of civil rights. I would venture that only a incredibly small number of the 1.6 million women certified in the case have been actually been the victim of sexism. Also, although you might not want to admit it, the average person knows that there are real, actual, sometimes personal, non-sexist reasons that women are willing to work for less in the same job (most notably that men are willing to take many dirty jobs that women won't).

I'm not a subscriber to California Lawyer, which detailed how the plaintiff's lawyers put this entire lawsuit together:

How could The Impact Fund-a three-lawyer nonprofit located in a redwood building on the Berkeley marina-pull off a victory of this magnitude? Seligman doesn't even have a legal secretary. Yet in a four-year campaign, he coordinated a network of 18 lawyers from three private law firms and two other nonprofits. His success was grounded in more than a decade of experience settling Title VII lawsuits, a clever litigation strategy, use of an online document depository-and enough chutzpah to believe he could beat that quintessentially American corporation from Bentonville, Arkansas.

Though Seligman loves to play David to Wal-Mart's Goliath, he is one of the most successful class action lawyers in the country. In 1991 he retired as partner at Oakland's Saperstein Seligman Mayeda & Larkin after just eleven years of practice in the Title VII litigation boutique founded by Guy Saperstein and Charles Farnsworth. During that time Seligman had participated in more than 35 victories, including a twelve-year class action against State Farm that settled for $255 million, the largest damage award at the time in a sex-discrimination case. (Kraszewski v. State Farm Gen. Ins. Co., 912 F. 2d 1182 (9th Cir. 1990).) Attorneys fees from the victories made the partners rich....

With his earnings, Seligman could have bought a winery or a tropical island. Instead, he put up $1.24 million to launch The Impact Fund, an organization intended to train and support lawyers interested in bringing class actions that promised significant social change. The fund has a staff of three attorneys-Seligman, Jocelyn D. Larkin, and Marisa Arrona, a law fellow whose salary is subsidized by several large firms. In addition to civil rights cases, the fund supports environmental and poverty law class actions that are no longer eligible for Legal Services Corporation funding. Since its founding in 1993 The Impact Fund has awarded more than $3.5 million to nonprofit and private law firm grantees, who are expected to repay the grants if their lawsuits are successful.
"What we bring to the table is a blueprint for how to litigate a case," Seligman says. "We don't put in the majority of the money, we don't put in the majority of the resources, and God knows we don't put in the majority of the staff."

The idea of bringing a nationwide class action against Wal-Mart began with a pair of plaintiffs attorneys in Santa Fe, New Mexico. In the 1990s Stephen Tinkler and Merit Bennett, then partners in Tinkler & Bennett, had brought a series of lawsuits against Wal-Mart for sexual discrimination and sexual harassment. "It wasn't easy," says Tinkler. "Wal-Mart's legal strategy on every case was to fight it to the ends of the earth."

The law fellow noted above, Marisa, has her own blog, and writes about the WM class action from time to time.

Posted by Kevin at 3:28 PM

August 11, 2004

Wal-Mart wants to declassify lawsuit

CNN Special, FindLaw column by Anthony J. Sebok about Wal-Mart's attempt to head off the enormous class action lawsuit they are now faced with:

[...]

Last week, Wal-Mart petitioned the 9th Circuit Court of Appeals, asking it to step in and decertify the case. It is highly usual for an appellate court to get involved in a lawsuit before there is a final judgment in a trial. But Wal-Mart will try to persuade the Ninth Circuit that Dukes is a very unusual case, and that is why the class action should be stopped before it goes too far.

There are two reasons why the Dukes suit is indeed unusual -- but neither justifies the Ninth Circuit's stepping in and stopping the case.

[...]

Read the column in full, here.

Posted by Morgan at 6:37 PM

July 24, 2004

Statistical Differences, Discrimination, and Economics

Thomas Sowell's most recent columns about the Wal-Mart discrimination charges examine the underlying notion that statistical differences indicate discrimination.

Sowell does a bang up job of making complex issues easy to understand. This one is no different.

Here's just one nugget from part one.:

People without the slightest knowledge of economics or the slightest experience running a business will boldly assert that women are paid only 75 percent -- or some other percent -- of what men make for doing exactly the same work.
Think about it. If an employer could hire four women for the price of hiring three men, why would he ever hire men at all?
Even if the employer was the world's biggest sexist, he could still not survive in business if his competitors were getting one-third more output from their employees for the same money.

Interesting, considering that Wal-Mart is not just surviving, but thriving.

In part two., Sowell continues:

The sex discrimination lawsuit against Wal-Mart raises questions with implications that reach far beyond this one retail giant. Too many people in the media, in academia, and even in courts of law, act as if numbers plus a preconception equals proof. The preconception is that various groups -- by race, sex, or whatever -- would be evenly represented in occupations or institutions if it were not for discrimination.

Check out the full columns for a great read.

Posted by Brett at 1:36 AM

July 12, 2004

Lawsuit Takes the Smiling Giant to Court Concerning WM Employees Who are Sexual Predators

*Updated*

This must-read article speaks for itself (here).

Monday, July 12, 2004
The State
Columbia, South Carolina

Suit says children unsafe at Wal-Mart

Few employees get background checks, lawyer says

By RICK BRUNDRETT
Staff Writer


Wal-Mart, the nation�s largest retailer, doesn�t do enough to protect children from store employees who are sexual predators, a local lawsuit contends.

Columbia lawyer David Massey said criminal background checks aren�t done on most Wal-Mart employees nationwide, even though the company has known about employees assaulting children.

Such checks are not required by law.

However, if a court agrees Wal-Mart has been negligent in protecting customers, particularly children, the company might be forced to change its policy on conducting background checks, Massey said.

�Wal-Mart has a cancer going on inside of it, and it�s the hiring of sexual predators,� Massey said during a recent Richland County court hearing.

He represents the family of a Richland County girl who authorities say was fondled in 2000 by a Wal-Mart employee in the electronics department of the Forest Drive supercenter in Columbia. The girl was 10 years old.

No criminal background check was done on the employee, a convicted sex offender who was listed on the state�s sex offender registry, according to a lawsuit filed in 2001 by the girl�s mother.

[...]

Read the entire article, here.

Okay, I'll share my two cents worth on the subject while I am at it.

This will most likely not be the last, nor I doubt the only such case, to be heard concerning such matters within big box stores like Wal-Mart (WM) either.

It would serve WM, along with their huge customer base, much better of course if they do a whole lot better and more than they are currently doing concerning both this particular case as well as the matter in general.

Why does there have to be a law to compel WM and other big box retailers to protect young and vulnerable customers from the likes of sexual predators whom may be in their employ or otherwise be applying for a job to work there?

Apparently, at least in some cases and if I understand things correctly, all they would have to do on a routine basis is to avail themselves of data already available to the public in those communities that have such provided by law regarding previously convicted sexual predators anyway, checking against both new applicants as well as current employees in their hire.

Is it really too much to ask or expect from a good corporate citizen?

WM should be leading the way on this on every level in a meaningful fashion.

This sort of behavior on WM's part simply undoes everything they try to sell the public about their well-crafted and heavily marketed smiley face, community and family friendly, image.

It is a brutal reality WM needs to both face and own up to concerning what should be their corporate responsibility with such matters.

One thing to think about as well is, just for a moment, imagine the shopping public's reaction to people of all ages standing out on the public way just outside the parking entrances to WM center holding up signs accusing WM of being woefully negligent as well as deliberately indifferent concerning the great risk of sexual assaults against children on its property by its employees.

Not a good or healthy image is it?

And that is not even the worst of it of course.

What could WM be thinking?

It just boggles the mind.

That is my opinion for what it is worth.

*Note*: Made several edits, mostly minor in nature, along with a few additions within my own comments for the purposes of clarification and readability: last updated on Monday, July 12, 2004 at 10:59 AM [EDT].

Posted by Morgan at 9:23 AM

July 11, 2004

In These Times: The ITT List

While surfing online for something on a totally different topic, having nothing whatsoever to do with Wal-Mart, I came across this item that in my opinion is certainly worth noting.

Am quoting it in full however, as it is not clear to me exactly how long it may remain on the In These Times The ITT List Web page: News and commentary written by In These Times editors and staff.

It was orginally posted there by Emily Udell, advertising director at In These Times:

The ITT List

The Women of Wal-Mart
July 7, 2004

Today Wal-Mart asked the San Francisco Federal Court of Appeals to review Judge Martin W. Jenkin�s ruling that a sex discrimination case against the monolithic corporation be considered a class action lawsuit. The class could include as many as 1.6 million employees�almost every woman who has worked for Wal-Mart since December 1996.

Wal-Mart�s reputed discrimination against women is an issue that even 1992�s Miss America Carolyn Sapp is behind.

The former beauty queen launched a Web site Wal-Mart versus Women to spread the word about the corporation�s gender discrimination. The site features news and ways to get involved in the issue. Who would�ve thought?

In a June 2nd article The Labor Research Association connects the discrimination to the fact that Wal-Mart�s labor force is not unionized. Cynthia Green writes, �Wal-Mart has denied all claims of gender discrimination, but the alleged infractions are of a piece with the company�s history of union bashing.�

And indeed union bashing is a priority for Wal-Mart, according to a recent article by Liza Featherstone in The Nation. Featherstone quotes a Wal-Mart manger�s handbook: �The entire management staff should fully comprehend and appreciate exactly what is expected of their individual efforts to meet the union free objective.... Unless each member of management is willing to spend the necessary time, effort, energy, and money, it will not be accomplished. The time involved is...365 days per year....� This is only one of many jaw-dropping tidbits from Featherstone�s piece.

The SF Court of Appeals has not commented on Wal-Mart�s request for a review yet, but hopefully this case will go forward as a class-action suit that can begin to chip away at the bad labor practices that have been institutionalized by the world�s largest employer.


Posted by Emily Udell

[...]

There is more on the same page, however nothing else on the page I came across at the time was related to Wal-Mart or the class action court case in question.

Posted by Morgan at 8:46 PM

July 3, 2004

Yet Another Take

*Updated*

In closing this three day blitz of posts blogged by me, many focused on the same topic, I will leave you with this article as additional food for thought on the subject.

Beware though, some of the language employed within the article is very much politically incorrect and, as such, may prove extremely offensive to certain people's tastes and principles; yet -- except for its great low prices, which almost everybody (yes, including myself) in this country seems to want -- so is Wal-Mart for that matter (where is that WM smiley face -- especially when you really need it -- anyway?).

The Men of Wal-Mart

These guys aren't misogynists. They're morons.
BY PETE KOTZ

pete.kotz@clevescene.com

[...]

If you buy the company line, feel free to dismiss such talk as hollow sniveling from disgruntled employees. But set aside some time, because you'll have to dismiss similar claims from more than 100 women in 30 states, a tally that mounts by the day.

In their class-action suit, they accuse Wal-Mart of systemically screwing female workers -- in wages, promotions, and all things in between. The stats back them up: Though women outnumber men four to one among hourly supervisors -- where wages are slightly above minimum wage -- they account for only 15 percent of store managers. The logical conclusion: Smiley Roll-Back is a Neanderthal punk.

[...]

The company's faced innumerable civil-rights suits, for everything from firing blacks who date whites to telling female employees that "God made Adam first, so women would always be second to men."

It's been raided by the feds for employing illegals, caught making people work off the clock, and found hiding and destroying documents in dozens of lawsuits nationwide. Bloomberg Markets discovered evidence that it pays spies to search and destroy union-friendly workers. And though Wal-Mart fancies itself as America's Store, last year it imported $15 billion in goods from China.

Its reputation is so bad that two out of every three new stores face opposition to construction. Perhaps that's because a typical location costs its host community $420,750 a year in medical, housing, and free-lunch subsidies that go to impoverished workers, according to a California legislator's report.

Given this record, it's tempting to consider Wal-Mart a low-rent Mafia. Yet these guys just keep getting caught. In truth, they're idiot savants, blessed with a crisp aptitude for numbers, but little else. Think of your dumb-ass brother-in-law who tries to rob a cop bar with a plastic squirt gun. He's too stupid to hate, but you'd love to smack some sense into him.

All of which makes it hard to buy the class-action suit. To do so, you must believe that morons systematically kept women schlepping shampoo and junior-miss skirts instead of running the show. This gives them too much credit. Beside, it's just a symptom.

Wal-Mart's true illness is not understanding the correlation between wage and quality. You buy poverty-level managers, you get poverty-level thinking -- the kind that quotes Adam and Eve in job reviews and takes its gender cues from the seventh century. If left untreated, it's an affliction that eventually proves fatal.

[...]

The entire article can be found here.

Until next time ...

*Note*: Added another paragraph of my own (in the lead) as well as several more excerpts from the article itself well worthy of note too: last updated on Saturday, July 3, 2004 at 4:16 PM [EDT].

Posted by Morgan at 3:47 PM

Wichita Eagle Editorial

Just came across this must-read editorial published in today's edition of the Wichita Eagle concisely makes the case in point, which have been illustrated in several previous blog postings of mine these last three days:

Wrong
EDITORIAL: WRONG

Wal-Mart's steamrolling success has made it the American company that Americans currently love to hate, even as they take advantage of its vast selection and cheap prices. So it's probably lucky that the court of public opinion isn't the venue for the lawsuit newly certified as a class action by a federal judge in California.

[...]

But the allegations against Wal-Mart mirror a broader problem, recently noted in a U.S. Census report as a "substantial gap in median earnings between men and women that is unexplained" even after accounting for work experience, education and occupation.

Three decades after feminists wore "59 cents" buttons to protest the wage gap, women overall still earn 74 percent of what men do, according to the census report. In high-earning jobs, women make 55 cents for every dollar earned by men. When it comes to securing equal pay for equal work, the progress has been too little and too slow.

So the value of such a lawsuit is bigger than this case, one of emboldening working women and spurring employers to purge gender discrimination from their own factory floors and office suites.

Through their stories and their willingness to tell them in court, the Wal-Mart women will be sending an essential message to other businesses: Discrimination against women in salary and promotion is wrong, and it's past time that it ceased.

Read the editorial in full (seven paragraphs), here.

Posted by Morgan at 3:28 PM

Behind the Scenes into a Class Action

*Updated*

Yet another must-read article concerning the class action lawsuit against Wal-Mart, this one taking an indepth behind the scenes look into the case and what has brought it about.

Wal-Mart's challenger used to lengthy battles

Class action: A Berkeley, Calif., lawyer relishes leading the biggest workplace discrimination case ever.

By David Streitfeld
Los Angeles Times

Originally published July 3, 2004

The conference room in Brad Seligman's Berkeley, Calif., law office is a forlorn place.

Its two windows look out onto walls. The table is scratched, the carpet dull. An air duct across the ceiling adds to the feeling of claustrophobia.

For three years, Seligman has been suing Wal-Mart Stores Inc., accusing it of discriminating against female employees. When the time came for the first big meeting with the company's well-heeled lawyers, he insisted it be done in this room.

"I wanted them to see we weren't about money, that this case wasn't just about money," Seligman says. "We brought it because Wal-Mart needs to change."

[...]

This is particularly interesting, in several ways:

[...]

The origin of the Wal-Mart case goes back a decade. That's when two New Mexico lawyers, Stephen Tinkler and Merit Bennett, took on a sexual harassment complaint involving two women at a local Sam's Club, a Wal-Mart subsidiary.

In 1997, the partners won a $2 million verdict. That produced a flood of new harassment lawsuits against Wal-Mart, but prevailing never became easy.

"Wal-Mart had unlimited resources. It would fight to the hilt," Bennett says. "Maybe we were naive."

Still, after years of litigation, the lawyers felt they had amassed a pile of useful evidence about the retailer's employment practices that suggested something deeper and more pervasive than harassment.

[...]

The bigger the class, "the heavier burden we have to convince a judge there is a common problem across the system," Seligman said. "Defendants always argue, as they did in this case, that each store is different."

Trying to prove they weren't was the role of Marc Bendick, an economist and consultant in Washington. Using Equal Employment Opportunity Commission data, Bendick put together a portrait of what the top 20 discount retailers' work forces looked like.

Women, he found, dominate retail - and not just at the cash register; K-Mart, J.C. Penney, Sears and other companies are run by management teams that are, on average, 56 percent female.

Then the lawyers took a close look at Wal-Mart's recent EEOC reports. No matter which way Bendick sliced it, Wal-Mart was different: Only 34 percent of its managers were women.

[...]

Read the entire article, here.

*Update*:

Additional information, concerning what is referenced with the above mentioned article, may be obtained directly from the official Wal-Mart Class Website [via Joe Hill Dispatch: Wal-Mart Beat -- ... journal of Walmart news, analysis and activism].

*Note*: last updated on July 3, 2004 at 2:48 PM [EDT].

Posted by Morgan at 2:24 PM

July 2, 2004

Women Forcing Change in Wal-Mart Court Case

Published within the Forum/Opinion section section of today's edition of USA Today is a definitely must-read opinion piece written by Desda Moss, whom is a freelance writer living in Virginia.

Women in Wal-Mart suit forcing change

By Desda Moss

Sam Walton, the late founder of Wal-Mart, built his empire on a commitment to community, friendly service and low prices. The company also has provided jobs for thousands of Americans and is the world's largest private employer. But it now appears that some old-fashioned attitudes and an emphasis on low costs may have permeated its workplace practices.

[...]

According to the judge, the case is based on "largely uncontested" statistics that show women working at Wal-Mart are paid less than men in every region and in most job categories; that the gap widens over time (even for men and women hired into the same jobs at the same time); and that women take longer to enter management positions.

The case not only affects the female workers who claim discrimination, but it also could create a backlash among the women, many working-class, who shop at Wal-Mart and have fed its success.

[...]

In addition, she writes in her three closing paragraphs that:

[...]

The claims against Wal-Mart are not unique. The Equal Employment Opportunity Commission handled 6,037 wage-discrimination filings in fiscal 2003. That number has been steady during the past decade.

But by taking on such a giant as Wal-Mart, these women are already forcing change. Though not acknowledging discrimination, Wal-Mart adopted a new job structure and pay classifications last month. Dozens of companies watching the case are reviewing their own pay scales and employment practices.

Whatever progress our nation makes in ensuring that workers receive equal pay for equal work, you can be sure it will come as a result of ordinary women taking extraordinary action. Women who do their jobs and speak out when they feel that they've been treated unfairly can change the way we do business.

Read it in full, here.

Posted by Morgan at 8:20 AM

June 30, 2004

Time on "Wal-Mart's Gender Gap"

Yet another must-read article on the subject, this one is featured within the Business section of the Monday, July 05, 2004 edition of Time Magazine:

Wal-Mart's Gender Gap

What a landmark lawsuit aims to prove about how the No. 1 retailer pays its female workers
By LISA TAKEUCHI CULLEN/WILSON


Monday, Jul. 05, 2004
Gretchen Adams has more than a few bones to pick with Wal-Mart, but she figures its treatment of women is a good place to start. The mother of four took an hourly job at a Wal-Mart in Stillwater, Okla., in 1993 and was quickly promoted to head the deli department. Soon she was managing 60 workers and flying around the country to train hundreds more. When she learned that a man she had trained was earning $3,500 more than she was, "they told me it was a fluke." But as other male colleagues leapfrogged past, her salary never rose above $60,000 and she never landed the promised job of store manager. When she complained, "they told me where to go," says Adams, 57. She quit at the end of 2001.

Adams may yet have the last laugh. The retail giant � the nation's biggest private employer � has weathered a yearlong maelstrom of bad press about its employment practices. More than 30 lawsuits have accused it of cheating workers out of overtime pay. In a case in Oregon, the company was found to have forced employees to punch out and then return to work off the clock. A federal investigation discovered that in dozens of stores Wal-Mart used contractors that hired illegal immigrants. Now a federal judge in San Francisco has ruled that a sex-discrimination lawsuit filed in 2001 by six women can proceed as a class action on behalf of all Wal-Mart's current and former female employees. With up to 1.6 million plaintiffs, it will be the largest private civil rights case in U.S. history.

In many ways, Wal-Mart's problems stem from the conservative, Southern culture fostered by founder Sam Walton, according to Ellen Rosen, who is writing a book about the role of women at retail companies, including Wal-Mart. The old-fashioned values were one of the things that attracted Deborah Zambrana, 37, an 11-year employee of the store in Wilson, N.C. Then a note she wrote requesting help sorting lingerie came back scrawled with a chauvinist comment. When a male colleague admitted to the deed, "instead of being reprimanded," says Zambrana, who like Adams is not one of the lead plaintiffs, "he was promoted to assistant manager."

[...]

The rest of the article can be found here.

*Update*

Meanwhile, in today's edition, the Richmond Times-Dispatch reports about how another:

Former Wal-Mart worker details bias
She says she was passed over for promotion; chain says any incident would be 'isolated'

Posted by Morgan at 1:12 PM

Shaking Up the Big Boxes: The Bigger Picture

Being that I believe the court battle in question really has more to do about the bigger picture and the retail industry across the board, hence less to do about Wal-Mart itself, anyway; I found this Associated Press article from last week (Thursday, June 24, 2004) of interest, because it explores how the:

Wal-Mart Case May Prompt Industry Change [emphasis mine]:

By MELISSA NELSON Associated Press Writer

LITTLE ROCK (AP) - Retail experts say a nationwide class-action sex-discrimination lawsuit against Wal-Mart Stores Inc. could lead to changes within the world's largest retailer and among competitors.

"If the allegations are true, it will very fast lead to radical improvement of the situation. It is absolutely in (Wal-Mart's) best interest to resolve this as fast as possible," said Kurt Barnard, president of Retail Forecasting LLC in Upper Montclair, N.J.

Another analyst noted that those changes may already have begun before the decision Tuesday by a federal judge in San Francisco to grant class-action status to a suit filed three years ago.

The suit originally filed on behalf of six women will now represent as many as 1.6 million current and former employees - the largest private civil rights case in U.S. history. The suit claims Wal-Mart set up a system that often pays female workers less than their male counterparts for comparable jobs and bypasses women for promotions.

[...]

Robert Blattberg, director of the Center for Retail Management at Northwestern University's Kellogg School of Management, said the lawsuit will force all retailers to look at whether they are complying with equity laws.

"Most companies spend a lot of time trying to avoid these types of problems," he said. "If these cases start becoming prevalent, it will significantly increase the cost to retailers to track and determine if they are in compliance."

Wal-Mart's size and its staunch opposition to unions make it any easy target for such lawsuits, he said. "They are admittedly anti-union, and the unions like these types of lawsuits because they would like to see Wal-Mart bend," he said.

[...]

Yet the most noteworthy portion of the article happen to be found within the three closing paragraphs [emphasis mine]:

But retail experts said negative publicity from the lawsuit is unlikely to hurt the company's bottom line.

"In the long run, it doesn't hurt Wal-Mart because Wal-Mart is Wal-Mart; they are resistant," Barnard said.

"People don't go to Wal-Mart because they love Wal-Mart," Blattberg agreed, "they go to Wal-Mart because they like their prices."

Read the rest of the article, here.

The fact remains that Wal-mart can of course afford to continue fighting this as they have vowed to, even if they should end up losing the actual case in the long run. As far as they are concerned anyway, it is a no lose proposition for them either way the case turns out.

As the article points out however, since this is an industry-wide practice and thus more of a major problem for Wal-Mart's competitors, they are not as likely to fare as well as Wal-Mart is inclined to do and, smelling blood as well as a potential gain of the market share in addition, may change their own practices where they need changing in these regards.

Posted by Morgan at 12:09 PM

Differing Directions

This particular article in the Business section within today's edition of the New York Times caught my attention for obvious reasons: i.e., since it focuses on as well as examines certain complex social and cultural issues and their interplay both within and without the world that would be Wal-Mart.

Of course this definitely makes its a must-read, at least in my opinion.

Social Issues Tug Wal-Mart in Differing Directions

By CONSTANCE L. HAYS

Published: June 30, 2004

After a judge's ruling, announced last week, gave class-action status to a federal sex-discrimination lawsuit against Wal-Mart Stores, the company's management broadcast a two-part message to its one million employees over the television monitors that hang from store ceilings.

First, employees were told that the ruling means "that there was no finding of guilt and it was all about the class, but that we even disagree with that and are going to appeal it,'' said Jay Allen, a company spokesman. Then there was a second part: "When this is all over with, this company is going to be a better company for it."

Lately, it's been hard to tell what kind of company Wal-Mart plans to become. On one hand, it bans certain magazines from its stores, vigorously fights matters ranging from shareholder proposals to federal lawsuits, and justifies strategies by quoting its long-dead founder in the obsolete manner of Chinese quoting Chairman Mao.

On the other hand, in the last year, Wal-Mart created an office of diversity, announced that it would protect gay workers from workplace discrimination, and pledged to promote women in the same proportion that they apply for management jobs, promising to penalize senior executives if that does not come to pass.

"They make an appropriate move, and we feel we would like to remain involved," said Julie Goodridge, president of Northstar Asset Management in Boston, a money manager emphasizing social responsibility that owns 6,455 Wal-Mart shares and has contemplated selling them. She praised the company for taking action like its nondiscrimination policy toward gay employees. Other moves, like banning magazine titles, "make me feel like, 'what am I, out of my mind?' " Mrs. Goodridge said.

The seesawing suggests that Wal-Mart's prolonged transition from Samuel L. Walton's personal project to giant global corporation has reached a critical stage. Since 1992, the year Mr. Walton - known as Mr. Sam - died, Wal-Mart has had to make its way without the founder and visionary who turned a single five-and-dime into a retailing megalith.

[...]

Read the rest of the article, here.

Posted by Morgan at 10:54 AM

June 24, 2004

Who is Betty Dukes?

0623-WalMartsui_1.jpg
Betty Dukes (on right) is the lead plaintiff in the sex discrimination lawsuit against Wal-Mart, and she still loves WM:

[T]he lead plaintiff in the case was back on the job here Wednesday nattily dressed, quick with a smile and talking about how much she likes the company she's suing.

All Betty Dukes wanted, the 10-year veteran of the company said, was "the opportunity to advance myself with Wal-Mart."

I wonder if her lawyer told her to say that. (It's clear that everything she says, and that WM reps say, has been thoroughly debugged by their lawyers...

The article also contains this ahistorical nonsense:

The company has weathered a series of high-profile tests, most recently in Inglewood, where Wal-Mart went so far as to ask voters to allow a Supercenter in their community only to be rejected. At the same time, other communities in the state have actively courted the retailer.
No, the most recent large battle for WM has been in Chicago, where they have succeeded in gaining permission to open up one store.

Note also that another original plaintiff, Stephanie Odle, thinks she has already won, now that WM has changed its promotion policies to promote more women regardless of merit.

Posted by Kevin at 10:55 AM

Media Responses to Certification

It is impossible for one man to summarize the mass of newspaper, TV, radio, internet, and other responses to the certification of the sex discrimination class action lawsuit against Wal-Mart. I won't even try. But I will give some recommended readings. Here's one.

Amy Joyce notes that "a pattern of pay disparties" may be enough to prove discrimination de-jure, even if not logically. Later on she recounts WM's rebuttal to plaintiffs accusations:

Wal-Mart lawyers had argued to the judge that statistical differences in pay and positions were due to differing job aspirations and interests between men and women that exist in the general labor force, and that can't be blamed on the company.

In other words, the statistical data are incomplete. One cannot infer discrimination from wage discrepancy because relevant variables are unobservable.
And:
According to statistics gathered by an expert for the plaintiffs in the Wal-Mart case, women from the most menial positions up to top levels make less than men in the same positions. The numbers also found the number of women decrease as the level of job increases. Lawyers for the plaintiffs say Wal-Mart women were not told when higher level job opportunities opened, or they were told not to apply for certain jobs because they belonged elsewhere.
But men weren't told to apply either. Isn't part of being a good manager knowing the right people and gaining their trust? If men do that better than women, should the men be punished? I cannot imagine any organization when a job becomes vacant, an internal memo is sent to notify all potentially qualified, and they are sorted and ranked with the best person getting the job. Networking--which we're told to do constantly--is not a "fair" process, nor is is necessarily based on merit or rankings or qualifications. It's about putting yourself "in" with the right people at the right place at the right time.

Posted by Kevin at 10:38 AM

June 22, 2004

Certified

The sex discrimiation case against WM has been certified as a class action of 1.6 million women:

In a statement, attorneys for the six plaintiffs said the case was the largest civil rights class action ever certified against a private employer.
The statement contains the following:
The Judge noted that in their case, �plaintiffs present largely uncontested descriptive statistics which show that women working at Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time, that women take longer to enter management positions, and that the higher one looks in the organization the lower the percentage of women.�
The Judge did not say whether the gap between men and women was smaller or larger than the one in other companies known not to have engaged in sex discrimination. Also:
The Court in reviewing all of the evidence found that together the evidence presented by the plaintiffs, �raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.�
In other words, a practice of promoting the most aggressive ladder-climbers is illegal discrimination against women if the most aggressive ladder-climbers are men, even if this is not discriminating against any specific woman for being a woman.

My question is, if women are a sure-fire bet to be paid less for the same work, why does WM employ so many men?

UPDATE: Wal-Mart already insisted on its innocence:

In anticipation of the ruling, Wal-Mart spokeswoman Mona Williams told The Associated Press on Tuesday that the Bentonville, Ark.-based company will appeal and is confident in its contention that it does not discriminate against women employees.

Posted by Kevin at 10:21 AM

May 12, 2004

WM Pays $3.1 Million for Water Pollution

WM settled with the EPA after it sued for gross violations of environmental regulations during new store construction:

The complaint filed against Wal-Mart alleged violations at 24 sites in nine states. It included charges it failed to get a permit before beginning construction and did not develop a plan to control polluted runoff water.
The problem was not large or pervasive or universal at their construction sites--WM builds over 200 stores a year. But it was the second time in 3 years it had been sued by the EPA. (EPA determined WM's compliance was not full the first time around). Regardless of your view of the benefits and costs of such regulation, WM must follow these laws, and must be held accountable when it doesn't.

Still, I don't know which government will get to spend most of the $3.1 million collected as a civil penalty.

Today's settlement requires Wal-Mart to comply with storm water permitting requirements and ensures rigorous oversight of its 150 contractors at its construction sites across the country through an aggressive compliance program. Wal-Mart will be required to use qualified personnel to oversee construction, conduct training and frequent inspections, report to EPA and take quick corrective actions.

In addition to paying a $3.1 million civil penalty to the United States, Tennessee and Utah, Wal-Mart has agreed to spend $250,000 on an environmental project that will help protect sensitive wetlands or waterways in one of the affected states, which are California, Colorado, Delaware, Michigan, New Jersey, South Dakota, Tennessee, Texas and Utah.

Full details of the settlement can be found here.

Posted by Kevin at 3:45 PM