It sure is easy to build a mythological case against someone when you start out by ignoring the facts.
The ink was barely dry on the U.S. Supreme Court's decision in the Wal-Mart v. Dukes case when the American Association for Justice, representing the nation's trial lawyers, started crying crocodile tears over a case that had little chance of winning in the first place.
It took the Kentucky Justice Association a little longer to weigh in, and I can understand why. It takes time and an extraordinarily imaginative perspective on the law to make a connection between $5 overcharges on telephone and cable bills and alleged discrimination in the workplace.
Betty Dukes, one of the named plaintiffs, might or might not have been discriminated against by her supervisors at Wal-Mart. That still has not been determined in court and was not the issue before the Supreme Court, despite the Kentucky Justice Association's efforts to make it appear otherwise.
Rather, the only question before the court was whether Dukes' case met the standards to be certified as a class action.
"Class-action lawsuits are used when there is a large group of people who have all been wronged by the same entity." Those are the words of the Kentucky Justice Association. The Supreme Court said this case did not meet that standard.
By a vote of 9-0, the court said that certifying the Wal-Mart case as a class action would have a detrimental effect on others who were being forced into the class without notice. The court voted 5-4 on the issue of whether or not the three original plaintiffs could fairly represent the experiences of all women who work at Wal-Mart.
After persuading Dukes and two co-plaintiffs to include 1.5 million other women in the lawsuit and pursue it as a class action, her attorneys, Cohen Milstein Sellers and Toll, couldn't manage to convince the Supreme Court.
As a result, Dukes and any other woman who works for Wal-Mart who thinks she has suffered discrimination can still sue, a right they could have lost had the case continued as a class action in its current form.
But don't take my word for it. Take the word of Dukes' attorney, Joseph Sellers, who promised more lawsuits: "The case is going to continue, and so we believe that there are a number of additional smaller, more tailored cases that can be brought and what we've invested in will be part of what we seek to recover."
Furthermore, the class didn't "grow to more than 1 million" as KJA suggests. Those other 1.5 million women were never asked whether they wanted to be a part of Dukes' lawsuit in the first place. Only 120 women ultimately submitted affidavits claiming discrimination. In 14 states, there were zero claims of wrongdoing even though plaintiffs in those states were included in the lawsuit. If you are keeping score, 120 is .008 percent of 1.5 million, less than one one-hundredth of a percent.
Dukes has a right to be angry. She wasted 10 years embroiled in this lawsuit because she was convinced that she should be part of a massive class action, which often benefits the attorneys a lot more than the plaintiffs. But she ought to direct her anger at her attorneys for failing to convince a single Supreme Court judge that her case should proceed as a class action.
So what do overcharges on phone or cable bills and discrimination in the workplace have in common? Actually nothing, which is why the lawyers lost the case and why the Kentucky Justice Association is wrong to represent the Supreme Court decision as a blow to "billing-overcharge victims of the world."
It was not. It was a blow to predatory, unjustified and baseless mass class actions against big companies just because they are big.
Ultimately, we all lose when the justice system is abused. We lose in the form of higher prices, higher insurance rates, delays in the legal system and a weakened economy. The United States spends more money on litigation, about 2.5 percent of the gross national product, than any other developed nation.
I agree with KJA that justice does indeed belong to everyone. Thank goodness the Supreme Court agrees, as well.