“Next for Wal-Mart, attorneys will appeal to anyone who will listen, from the full appeals court to the Supreme Court,” Avila concluded his “World News” story, using language more suitable for a condemned killer hoping for governor’s reprieve than a business enterprise in a civil action.
Because Wal-Mart could see “billions in damage,” from a court fight it might lose, Avila told viewers the lawsuit could send “an expensive message to corporate America that no matter how big you are, employee discrimination can be costly.”
Yet rather than wade into legal arguments, Avila relied on a typical media device – the David vs. Goliath narrative – for the lawsuit.
Avila pitted video of two lawsuit participants up against a 2005 video of Wal-Mart CEO Lee Scott insisting that his company doesn’t engage in gender discrimination.
The legal issues reporter did note the dissenting judge’s fear “that a class action suit would reward all plaintiffs equally and enrich undeserving workers and lawyers,” but he left out a more legally salient argument from the dissent: that the court erred in granting class action status for the case.
Unlike most class action lawsuits filed against a company, as Judge Andrew Kleinfeld noted in his dissent, “This class lacks commonality because there are no questions of fact or law common to the class.”
The bottom line? Far from being a victory for actual victims of sexual discrimination as Avila claimed, the ruling from the 9th Circuit, if it stands, could pose serious damage to law-abiding businesses that are trying to hire, retain, and advance the best workers for the job.
“The plaintiffs’ lawyers persuaded the panel to accept a theory that would force employers to make decisions based on statistics, not merit, and would deny employers their basic due process rights,” Wal-Mart attorney Theodore J. Boutrous said in a company statement .
Unfortunately for his viewers, Judge Avila’s verdict came down before Wal-Mart could finish its closing argument.