The U.S. Supreme Court hears oral arguments today in Wal-Mart Stores, Inc., v. Betty Dukes, et al., potentially the largest employment discrimination class-action suit in history and a case of great interest to major manufacturers, as well. The Court’s “question presented” provides a concise summary of the issues.

In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart’s approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company’s express anti-discrimination policy.

The questions presented are:

I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) – which by its terms is limited to injunctive or corresponding declaratory relief – and, if so, under what circumstances.

II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.

Wal-Mart’s attorneys from Gibson Dunn — including Theodore J. Boutrous, Jr., and Ted Olson — state their case strongly in the petitioner’s brief.

The [Ninth Circuit’s] certification order is flatly inconsistent with Rule 23(a)’s prerequisites. The class members— potentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the country— assert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses. The named plaintiffs’ claims cannot conceivably be typical of the claims of the strangers they seek to represent. These intractable problems are compounded by a virtually boundless class definition that produces an across-the-board class pervaded by conflicts among its members.  This kaleidoscope of claims, defenses, issues, locales, events, and individuals makes it impossible for the named plaintiffs to be adequate representatives of the absent class members. (continue reading…)

As a former U.S. prosecutor, New Jersey Governor-elect Chris Christie talked much about the law and corruption during his successful campaign against Gov. Jon Corzine, but we didn’t see much about liability reform from either side. So it’s encouraging to see the issues included in the Christie campaign’s “88 Ways Chris Christie Will Fix New Jersey,” under the category, “Getting New Jersey Working Again”:

Forty Seven: I will restore fairness and common-sense to our state’s legal liability policies by making it more difficult for out-of-state plaintiffs to sue in New Jersey courts.

Forty Eight: I will end the abuse and manipulation of New Jersey’s civil justice system by preventing the admission of flimsy and dubious testimony offered by expert witnesses.

Forty Nine: I will make our state more affordable for consumers and businesses by making it more difficult to file class action lawsuits for frivolous reasons.

Lots of good bullet pointed policies on easing unnecessary regulation, too.

New Jersey election results here.

From today’s Wall Street Journal, “The Firm,” an editorial urging the Justice Department to continue its investigations into the crimes:

The firm perfected what’s known as a “strike suit,” in which a corporation is sued over a dubious claim of “fraud” merely when its stock price falls. Milberg now admits that, over 30 years, seven former partners (three remain unnamed) paid secret kickbacks to plaintiffs in 165 suits. Those suits earned the firm some $240 million in fees.

The plea deal itself reveals how elaborate these strike-suit cons were. In addition to paying plaintiffs, Milberg was also funneling kickbacks to New York-area stockbrokers who referred clients for Milberg suits. One of these was Paul L. Tullman, who received some $9 million in finder’s fees over 24 years. Milberg Weiss was also illegally paying at least one class-action expert witness, a man named John Torkelsen, on a contingency-fee basis. Torkelsen, now serving jail time for defrauding the government, was famous for providing the court with estimates of the “damages” owed to shareholders. Since he was getting a cut, he had every incentive to pump up the numbers.

In short, Milberg was a corrupt enterprise that perpetrated a vast fraud on our system of justice.

While the Journal calls for continued Justice Department enforcement, Paul Kamenar of the Washington Legal Foundation asks, where’s the Securities Exchange Commission? Writing in The Examiner, he argues:

While Reps. John Boehner and Lamar Smith recently have called for congressional investigations into this massive criminal racket that affected the markets, the obvious question is, where has the Securities and Exchange Commission been in all of this?  Ironically, in 1995, SEC Chairman Christopher Cox  — then Rep. Cox — was responsible for enacting the Private Securities Litigation Reform Act to curb these class-action abuses. Yet the SEC’s silence on these harmful criminal practices — which Lerach unapologetically admitted was “industry practice” by the class-action bar — has been deafening.

Indeed, after being lobbied by Lerach last year, the SEC tried to push the Justice Department to side with the greedy plaintiffs’ bar in the U.S. Supreme Court case Stoneridge v. Scientific-Atlanta.

Congressional leadership certainly has shown no inclination toward oversight.

An editorial in The Examiner today praises Sen. John Cornyn’s bill, S.3033, the Securities Litigation Attorney Accountability and Transparency Act.

The Cornyn bill responds directly to the core Lerach/Weiss abuses (giving illegal kickbacks to clients) and also provides for greater transparency and consistency in the judicial certification of plaintiffs. It further directs courts to establish competitive bidding by attorneys in most class-action cases, and encourages the U.S. Comptroller General to publish regular studies of how much money successful class-action attorneys make per hour.

The legislation also requires disclosure of all campaign contributions from winning attorneys to elected officials were are in a position to influence the selection of counsel for class-action plaintiffs.

The Examiner has been an editorial workhorse on the topic of civil litigation reform, reflecting the views of its owner, Colorado investor Philip Anschutz, cleverly dubbed a “media wildcatter” by BusinessWeek back in 2005, and ably represented on the opinion pages by editors Mark Tapscott and Quin Hillyer. Good things going on at The Examiner, too, including a new Sunday edition beginning July 13. Also, today is the first day at The Examiner for Mary Katherine Ham, who will oversee the paper’s upcoming, reworked website, dcexaminer.com.

So, more profile for tort reform issues. Good all the way around and congrats to The Examiner.

Crossposted from Point of Law.