Supreme Court Ruling on Wal-Mart: A Win for Employers
The following excerpts are from the Workplace Class Action blog of Seyfarth Shaw LLP, one of the nation’s leading national employment and labor law firms. (To read the full posting, go to workplaceclassaction.com)
Today, the U.S. Supreme Court issued its long-awaited and much anticipated opinion in Dukes, et al. v. Wal-Mart Stores, Inc. The Supreme Court reversed, and ruled in favor of Wal-Mart.
The decision is likely to spark a transformation of Rule 23 class certification law, and the workplace class action litigation is apt to change dramatically in the future. In short, the Supreme Court’s opinion re-positions the goal posts on the playing fields of how workplace class actions are structured, defended, and litigated.
In a 5 to 4 ruling, the SCOTUS held that plaintiffs failed to demonstrate commonality under Rule 23(a)(2), and unanimously held that the back pay claims could not be properly certified under Rule 23(b)(2).
The impact of the ruling will be significant to employers for their approach to employment discrimination litigation. As such, Dukes determines how much, for purposes of Rule 23(a), class members must have in common for a class action to be certified and the extent to which claims for money damages can ever be certified under Rule 23(b)(2).
The SCOTUS ruling in Dukes addresses several cutting-edge class action issues. These issues are of substantial importance to employment discrimination class-action litigation and to employers generally because it establishes a roadmap for plaintiffs’ lawyers and defense counsel alike in approaching class certification briefing and hearings.
The new roadmap is decidedly more favorable to employers than before. Employers should be upbeat in terms of the Supreme Court’s articulation of the required showings plaintiffs must make in the future to certify an employment discrimination class action. In short, the bar has been raised.
The impact of the Dukes case also impacts all employers’ human resources administration, policies, and procedures. As a result of the decision, employers should review HR practices related to pay and promotion decisions — subjective or not — to determine whether they are adversely impacting any classification of employee. Employers should design any subjective decision-making process and procedure carefully, by linking the process and procedure directly to each position and criteria for performance, ensuring that managers closest to performance are trained to make effective decisions, and consider an appeal process for employees considered but not selected for promotion or training opportunities. Employers should review their programs aimed at increasing diversity and preventing discrimination to ensure that they are being implemented effectively, and should not avoid implementing these programs. Further, employers should continue providing training and communications regarding company policies, including those relating to equal employment opportunities, non-discrimination, and career opportunities.
Upcoming Seyfarth Webinars On Dukes:
On Tueday, June 21, 2011, at 12 ET/11 CT/9 PT, Seyfarth Shaw LLP is hosting a short, interactive Webinar on the Dukes ruling, and initial thoughts regarding the impact of the ruling on employers, and what it means for the future of workplace litigation.
Click here to register.
Gerald L. Maatman, Jr. is a partner of Seyfarth Shaw LLP, where he is resident in the firm’s Chicago and New York offices. Laura J. Maechtlen is a partner in the San Francisco office of the firm, and serves on the Firm Diversity Action Team’s Executive Committee.
Beyonce’s musical gumbo is Target-licious
It is all about exclusives in the world of entertainment, and Target landed a big one with a deal to offer a deluxe edition of Beyonce’s fourth album. Due out on June 28, the album is appropriately titled “4,” and the deluxe version offered at Target will include three additional songs, three club remix songs totaling 17 additional minutes and bonus video footage.
“Beyonce’s fans are clamoring for her new album, and Target is the only retailer giving them extra songs and video from their favorite artist,” said John Butcher, Target’s VP entertainment. “Beyonce played an active role in the production of the Target deluxe edition, making sure the content would give fans an even greater glimpse into the personal journey that inspired her latest music.”
The lead single was released in April and according to Beyonce, the total collection of songs was inspired by the variety of music genres she loves and describes as her, “musical gumbo.”
To drive awareness of the deluxe edition, Target created a Beyonce-focused television spot that is scheduled to air this Friday. The spot features the song “Countdown” and is said to reveal the artistic process behind the album, as well as some of the important moments in Beyonce’s life that inspired the songs on “4.”
There are a lot of people who actually care about this stuff and are going to want the megastar’s newest work. She’s sold more than 75 million albums during her career and received a total of 16 Grammy Awards, including 13 as a solo artist.
Target tops ad spending among retailers
The most recent Leading National Advertisers annual report from Advertising Age shows Target posted the biggest increased in ad spending in 2010 among conventional retailers. The total amount the company spent increased 12% to $1.508 billion compared with $1.246 billion the prior year. That put the company 18th on the Ad Age list of the nation’s 100 largest advertisers. Only two retailers spent more than Target. Fifteenth ranked Sears Holdings spent $1.778 billion, 4.6% more than the prior year and 7th ranked Walmart spent $2,055 billion, 0.9% more than the prior year.
Target spent more on advertising than 19th ranked Macy’s, which invested $1.417 billion in marketing for a 2.3% increase. JCPenny also spent a lot on advertising and ranked 25th on the list. Its spending was essentially flat with the prior year at $1.317 billion.
Other retailers, their rank on the top 100 list and amount spent included Lowe’s (47, $778 million), Home Depot (49, $768 million), Best Buy (56, $666 million), Kroger (66, $533 million), Amazon (70, $486 million), Walgreen (72, $468 million), Gap (90, $413 million), CVS Caremark (95, $400 million) and Fry’s Electronics (99, $384 million).