In January 2009, President Barack Obama signed the Lilly Ledbetter Act, the first new law of his presidency. The bill was named after a woman who had allegedly suffered discrimination by a former employer and who then waited for years before suing for back-pay. She lost a landmark Supreme Court case in 2007, because the statutory time-limit had long since expired when she filed her suit. In response, Democrats passed and Obama signed this bill, which effectively abolished all time-limits for such lawsuits.
At the time this bill passed, The Examiner warned that such loosening of legal standards would create a lucrative new frontier for trial lawyers to fish for decades-old complaints among disgruntled employees. The imagination of the plaintiffs’ bar, as we see in the case now being heard in the Supreme Court, is far more robust than ours. Instead of fishing for individual grievances, trial lawyers have attempted to create a multi-billion dollar class-action case on behalf of 1.5 million female Wal-Mart employees, past and present, who worked for the company any time after 1998.
People who suffer discrimination on the job are entitled to a claim under our laws, whoever their employer is. But this lawsuit, Dukes v. Wal-Mart, has nothing to do with individuals suffering discrimination. Rather, it is an act of legal extortion by a large mob led by pin-striped advocates. By amassing hundreds of thousands of claims — some of which might even be legitimate — the trial lawyers can force Wal-Mart either to settle for billions or else risk being held liable for hundreds of billions. Either way, the lawyers will make a mint — which is the entire point.
The high court will merely be deciding a procedural question of whether this suit is allowed to proceed as a class action. As one of the five dissenting judges (out of 11) at the appeals level pointed out, the would-be class in this case “held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors [male and female] … They have little in common but their sex and this lawsuit.” In other words, they are not a real “class” at all. If the Supreme Court allows this case to proceed, then no business in America is safe from lawsuits run amok. The court’s decision could well determine whether our courts are a place to seek justice, or a gold mine for unscrupulous trial lawyers.