Wal-Mart Wins. Workers Lose
Wal-Mart Stores asked the Supreme Court to make a million or more of the company’s current and former female employees fend for themselves in individual lawsuits instead of seeking billions of dollars for discrimination in a class-action lawsuit. Wal-Mart got what it wanted from the court — unanimous dismissal of the suit as the plaintiffs presented it — and more from the five conservative justices, who went further in restricting class actions in general.
The majority opinion by Justice Antonin Scalia will make it substantially more difficult for class-action suits in all manner of cases to move forward. For 45 years, since Congress approved the criteria for class actions, the threshold for certification of a class has been low, with good reason because certification is merely the first step in a suit. Members of a potential class have had to show that they were numerous, had questions of law or fact in common and had representatives with typical claims who would protect the interests of the class.
Justice Scalia significantly raised the threshold of certification, writing that there must be “glue” holding together the claims of a would-be class. Now, without saying what the actual standard of proof is, the majority requires that potential members of a class show that they are likely to prevail at trial when they seek initial certification. In this change, the court has made fact-finding a major part of certification, increasing the cost and the stakes of starting a class action.
Justice Ruth Bader Ginsburg, writing for the four moderates on the court, dissented from Justice Scalia’s broader analysis and sought a much narrower holding. The minority found that the plaintiffs had cleared the bar for certification with evidence suggesting that “gender bias suffused Wal-Mart’s company culture” but would have sent the case back to the trial court to consider whether the class action should have gone forward in a different form.
The plaintiffs in this case sought three forms of relief: to stop Wal-Mart’s employment practices that allegedly discriminated against women, to have the company adopt equitable ones and to recover wages lost as a result of unfair practices. The justices have all but ended this mix of remedies under one part of the main class-action rule — even though Congress and most courts of appeals have allowed it for decades.
Without a class action, it will be very difficult for most of the women potentially affected to pursue individual claims. The average wages lost per year for a member of the rejected Wal-Mart class are around $1,100 — too little to give lawyers an incentive to represent such an individual. For the plaintiffs, for groups seeking back pay in class actions, and for class actions in general, it was a bad day in court.
Doing Right by the Poorest Countries
Ten years ago in Doha, Qatar, the world’s leading trading nations began the so-called development round of trade negotiations, billed as an effort to open markets in rich countries to the exports of the world’s poorest nations to help them rise out of destitution.
The promise was empty. The talks imploded in April when big trading nations failed to agree on a deal to reduce tariffs. While hope remained that a narrow package of benefits for the least-developed countries could be rescued from the process, that hope collapsed this month when the leading traders refused to see beyond their interests and failed, again, to reach a deal.
Much of the blame for this disaster rightly falls on the United States. But all big trading nations should give more.
Fearing Congressional opposition — and especially the power of the cotton lobby — the Obama administration rejected a plan that would have granted duty-free and quota-free access for most exports from the poorest countries and frozen cotton subsidies at the current low level to give cotton farmers in poor countries a shot at competing.
The European Union already grants duty-free and quota-free access to most exports from all the least developed countries. The United States offers this access to most exports from Africa, but preferences granted to some poor Asian countries, like Bangladesh, are not so comprehensive. Washington said it would not offer more concessions unless others made concessions, too.
China, for example, is probably the world’s biggest subsidizer of cotton. It imposes a 40 percent tariff on imported cotton, but, because it is deemed a developing country, China isn’t obliged to make any concessions as part of the offer for the poorest countries.
The United States is right to call for a cut in the huge fishing subsidies by China, the European Union and some other countries like Japan and South Korea. American calls for a trade facilitation deal — essentially streamlining customs procedures — are also sensible. The competitiveness of the poorest countries is too often hampered by such regulations entangled in corrupt bureaucracies.
There is still time to cobble together a narrow trade agreement to help the poorest nations on earth before the World Trade Organization’s ministerial meeting in December. After that, the opportunity for a deal would evaporate. Progress now will require the big trading nations to overcome their narrow self interest.
Hypocrisy, Locked and Loaded
If Congressional Republicans are really intent on getting to the bottom of an ill-conceived sting operation along the border by the Bureau of Alcohol, Tobacco, Firearms and Explosives, they should call President Felipe Calderón of Mexico as an expert witness.
Mr. Calderón has the data showing that the tens of thousands of weapons seized from the Mexican drug cartels in the last four years mostly came from the United States. Three out of five of those guns were battlefield weapons that were outlawed here until the assault weapons ban was allowed to lapse in 2004. To help him stop the bloody mayhem, he is pleading with Washington to re-enact the ban and impose other needed controls.
That is the last thing Representative Darrell Issa, a California Republican, wants to hear. He and Senator Charles Grassley, an Iowa Republican, issued a report last week castigating the A.T.F. for an operation in which federal agents, hoping to track guns to Mexican cartels, monitored but did not stop gun sales to people suspected of obtaining weapons for those criminal groups. Two of the American-sold guns showed up at the scene of a fatal shooting of an American border patrol agent in Arizona last year.
The Justice Department has ordered an investigation, and it must be candid in assessing what happened.
Congress needs to be candid about how loophole-ridden laws have created a huge market for assault weapons, which end up in Mexico. At a hearing, Mr. Issa insisted, “We’re not here to talk about proposed gun legislation.” Federal officials in February sought authority to require gun dealers to report bulk sales of assault rifles only to have it blocked by a provision in the Republican budget. A responsible Congress would re-enact the assault weapons ban, outlaw uncontrolled gun-show sales and reform regulations that allow corrupt dealers to stay in business.
0 comments:
Post a Comment