Similar issue led to rejection of Wal-Mart's $188M appeal, attorney says

By Karen Kidd | Apr 26, 2016

WASHINGTON – Timing likely played its part in the U.S. Supreme Court's recent decision to not hear an appeal in a $187.6 million Pennsylvania class action case involving Wal-Mart, an attorney representing the class says.

Robert Peck, president of the Center for Constitutional Litigation and class counsel in Braun v. Wal-Mart Stores Inc., said he can't be sure why the U.S. Supreme Court denied Wal-Mart's petition for certiorari in hopes of overturning a lower court’s decision in the wage-and-hour case.

After all, the high court annually receives more than 9,000 petitions and generally grants less than a hundred, without a word of explanation about those cases turned away.

"Even so, we can surmise that having just decided a case a few weeks earlier on the basis that a corporation that fails to keep records required by law cannot complain when those records are recreated through extrapolation of existing records," Peck said.

"In Braun, Wal-Mart stopped keeping records specifically because it realized that the records could subject it to liability to its workers. The trial judge had instructed the jury that it was permitted to take an adverse inference from the decision to stop keeping legally required records and to use the class expert’s statistical extrapolation of the rest breaks that had gone unpaid.

"Wal-Mart asked the Court to hold that the use of such expert evidence to be a violation of due process. Given the decision a few weeks earlier, it did not make sense to revisit that issue in light of Wal-Mart’s decision to stop keeping the records."

The U.S. Supreme Court issued its denial to Wal-Mart on April 4, only a few weeks after it handed down its decision in Tyson Foods v. Bouaphakeo. That ruling affirmed a class action award for Iowa Tyson Foods workers who alleged they were underpaid.

Just prior to the Tyson decision, legal observers speculated a victory for workers in the case could lead to a number of changes, including class action certification. 

"We are disappointed the Supreme Court decided not to review our case," Wal-Mart's Director of National Media Relations and Corporate Communications Randy Hargrove said in an email. "While we continue to believe these claims should not be bundled together in a class-action lawsuit, we respect the court's decision. We will now determine how we move forward in the trial court.

"Most of these claims are over 10 years old. Walmart has had strong policies in place to make sure all associates receive their appropriate pay and break periods. We have taken additional steps over the last decade, including enhancing our timekeeping systems and additional training, to make sure all our associates understand the importance of those policies and comply with them."

Wal-Mart probably has run out of options in the Braun case, Peck said.

"While, theoretically, Wal-Mart could petition the Supreme Court for reconsideration, that type of reconsideration is almost never granted, and experienced counsel will not take such a meaningless step," he said. "As a result, the case is over. There are no further appeals."

The Supreme Court's decision lets stand a December 2014 ruling by the Pennsylvania Supreme Court, which itself affirmed an almost $188 million judgment against the national retailer. The 187,979 class member employees in the case alleged they'd been forced to work through meal and rest breaks - breaks mandated by Pennsylvania law and Wal-Mart's own policy.

Expert reports introduced on behalf of the class members revealed that 40 percent of hourly workers in 12 Pennsylvania Wal-Mart locations did not receive the number or duration of rest breaks required under state law and Wal-Mart policy. Plaintiffs argued that this finding squared with the results of a prior audit conducted by Wal-Mart.

Counsel for Wal-Mart has been quoted as saying the national retailer has since enhanced its timekeeping system and now provides additional employee training.

Peck said he could not speak for Wal-Mart's counsel about why the company appealed to the high court, but he did speculate it might have been because of a favorable past opinion before the court.

"Several years ago, Wal-Mart prevailed in the Supreme Court in a nationwide employment discrimination case, but the Court only answered one of the two questions Wal-Mart raised in that case," Peck said, referring to the 2011 case, Wal-Mart Stores, Inc. v. Dukes.

"The second question, dealing with due process, which the Court did not answer, was raised again in Braun. Wal-Mart might have thought that, given the earlier decision, this question might also be answered favorably to them."

Counsel for Wal-Mart and Wal-Mart spokespersons did not respond to requests for comment.

"I was not surprised that the Supreme Court turned the case down," Peck said. "I was confident of that result before we filed our brief in the Supreme Court a year ago, and more confident after the Court’s recent decision."

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