* Plaintiffs want case broken into smaller class actions
* Workers in bias case request more time to file claims
* Wal-Mart says cases should be filed individually
By Moira Herbst
NEW YORK, July 21 Plaintiffs in a huge sex bias
class-action case against Wal-Mart Stores Inc (WMT.N) that was
struck down by the U.S. Supreme Court will begin to unveil
plans on Friday for how they will try to resuscitate their
Lawyers for the women will argue in U.S. District Court in
San Francisco that they should be able to press ahead with
multiple, narrower class-action claims against the retailer.
Wal-Mart, however, wants to make sure any potential class
actions are kept firmly in the grave.
Women who say the company denied them pay raises and
promotions because of gender bias are regrouping after the
Supreme Court dismantled a class of up to 1.5 million current
and former Wal-Mart workers last month.
Had the class-action lawsuit gone forward, Wal-Mart could
have been liable for billions of dollars in back pay and other
damages. The court concluded that the group did not have enough
in common to band together to sue the company.
Friday's hearing marks the first time both sides have
appeared in court following the landmark decision.
Since the case cannot move forward as one massive case,
plaintiffs must reformulate claims into more tailored groups --
or as individual lawsuits.
Joseph Sellers, a lead attorney for the plaintiffs and a
partner at law firm Cohen Milstein Sellers & Toll in
Washington, said plaintiffs will propose a smaller class-action
lawsuit in California, and could bring similar cases elsewhere
in the country. He declined to comment before the hearing on
how many smaller class-action lawsuits there could be.
"There was this sense after the Supreme Court decision that
the case was dead, and we dispute that," Sellers said.
"We think the decision leaves open the possibility of
bringing more narrowly tailored class actions."
Plaintiffs could carve up the larger group of current and
former Wal-Mart workers according to different stores or
regions, and different job descriptions and time frames of
employment. It is unclear what Wal-Mart's potential liabilities
could be in this scenario if it loses the case.
Sellers said hundreds of attorneys have contacted his firm
expressing interest in representing plaintiffs in revised
litigation. His firm spent about $7 million on the original
lawsuit against Wal-Mart that landed at the Supreme Court, and
so far has not seen a return on its investment.
REQUEST FOR MORE TIME
The Supreme Court did not rule on the merits of the
plaintiffs' bias claims, only whether they could link together
to sue. The ruling has been applauded by the U.S. Chamber of
Commerce business group but denounced by women's
Wal-Mart has said that the ruling means that current or
former workers wishing to sue for sex discrimination would have
to do so on an individual basis -- not through a series of
smaller class actions.
"We strongly believe the Supreme Court's decision
forecloses any reconfigured class," said Theodore Boutrous, a
partner at Gibson, Dunn & Crutcher in Los Angeles and lead
attorney for Wal-Mart.
At Friday's hearing, the plaintiffs will also argue that
current and former Wal-Mart workers need more time to file
discrimination claims with the Equal Employment Opportunity
Commission (EEOC) or new lawsuits against the company before
the statute of limitations runs out.
In a court filing last month, Sellers asked that the court
give former members of the dismissed class an additional four
months to file new EEOC claims or litigation. Wal-Mart opposes
granting the extra time.
The Wal-Mart ruling is expected to have widespread impact
on many types of class-action lawsuits, making it more
difficult to win certification of large groups of plaintiffs.
On July 18, a Michigan state court cited the decision when
it decertified a class of more than 3,000 property owners suing
Dow Chemical Co (DOW.N).
Pending sex-discrimination class actions that could be
impacted by the Wal-Mart ruling include cases against Costco
Wholesale Corp (COST.O), Toshiba Corp (6502.T), Goldman Sachs
Group Inc (GS.N), Cigna Corp (CI.N) and Bayer (BAYGn.DE).
The case is Betty Dukes et al v Wal-Mart Stores, Inc., U.S.
District Court for the Northern District of California, Case
(Reporting by Moira Herbst, additional reporting by Dan Levine
in San Francisco; Editing by Martha Graybow and Ted Kerr)