As previously reported at Crime & Federalism and Appellate Law & Practice, a couple of days ago during an appellate oral argument, Judge Pregerson of the Ninth Circuit publicly chastised counsel for the defendant, Wal-Mart, for what he considered to be harsh language toward the trial judge in Wal-Mart's brief. Last night, Howard Bashman posted a link to a PDF file of Wal-Mart's brief on his blog, How Appealing.
I've just finished reading Wal-Mart's brief to see what set Judge Pregerson off. Below the fold, I've quoted some passages that jumped out at me. The parts where Wal-Mart may have stepped over the line are in red text.
There will likely be many varying opinions about whether Judge Pregerson's ire was justified. By writing this post, I don't mean to criticize Wal-Mart's briefwriters. It's very easy to criticize from a distance; it's a lot harder to actually write a brief that conveys some honest feeling (a good thing)1 without crossing the line that Judge Pregerson thought had been crossed. The sole purpose here is for all of us to learn from this incident, as Wal-Mart's counsel undoubtedly has.
If you read below the fold, keep in mind that I've pulled these passages out of a 60-page brief that just barely sneaked under the 14,000-word limit. In other words, what you're getting here is the arguably offensive parts in concentrated form. If you want to see the passages in context, you'll have to read the entire brief.
1 See Bryan A. Garner, The Elements of Legal Style § 7.2 (2d ed. 2002).
"The district court's order, albeit prolix, establishes that the court failed to engage in the 'rigorous analysis' mandated by Falcon and Rule 23 by glossing over the widely divergent claims of the named plaintiffs and 1.5 million class members, altering the substantive law, and trampling on Wal-Mart's due process rights instead of recognizing the impossibility and unfairness of litigating these claims in a single, massive class action." Wal-Mart brief at 16. (In his comments on Monday, Judge Pregerson singled out this passage.)
"The district court tried to sidestep the obvious lack of commonality inherent in plaintiffs' theory of the case ...." Id. at 21.
"The district court, however, simply ignored this unrebutted evidence." Id. at 24.
"More fundamentally, the district court altered the substantive law by ignoring the store-by-store evidence of extensive non-discrimination." Id. at 27.
"In this regard, the district court simply ignored Wal-Mart's actual company-wide policies, which prohibit discrimination and encourage equal opportunity." Id. at 29. (Wal-Mart italicized "ignored" and "actual.")
"The district court's refusal to apply Daubert was erroneous and stands as yet another example of the court's twisting the substantive law in furtherance of the procedural class action device." Id. at 30.
"The district court's failure to apply this elementary principle is grounds for reversal." Id. at 31.
"The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Unmanageable" Id. at 35. (This text was in a section heading, in bold text and up-style capitalization.)
"The court nonetheless concluded that this action presents no problems of manageability. To do so, the court repeatedly denied Wal-Mart its substantive defenses—which, if employed, would concededly render the class unmanageable... It could not be more clear that the district court's certification violates the Rules Enabling Act's prohibition against 'abrid[ing], enlarg[ing], or modify[ing] any substantive right.' The court's remaking of substantive law in order to render this class manageable for class treatment mandates reversal." Id. at 35.
"Instead of denying certification, however, the court decided to strip Wal-Mart of its right to defend itself in order to serve the class action device." Id. at 37–38.
"In dispensing with Teamsters hearings, the district court purported to rely on a handful of stale cases ..." Id. at 39.
"When it came to Domingo's provision for Teamsters hearings, however, the district court reversed course and stated dismissively that Domingo had 'simply imported this procedure from Teamsters without considering whether it was necessary.' ... In dispensing with the 'binding precedent of this Court and the Supreme Court in this manner, the district court committed reversible error." Id. at 42.
"Contrary to the district court's unfounded assumption ..., this is an affirmative defense that may be asserted by the employer regardless of whether it is put in issue by the plaintiffs." Id. at 44.
"In addition to being incompatible with Title VII and the Teamsters framework, the novel procedures the court adopted would also violate Wal-Mart's basic due process right to present a defense before being deprived of its property." Id. at 45.
"Far from permitting Wal-Mart to present 'any relevant rebuttal evidence [it] choose[s],' the district court has unabashedly denied Wal-Mart the opportunity to present any evidence at all—or otherwise to participate further—during the second phase of the trial, in clear violation of due process." Id. at 46.
"In short, the district court's repeated disregard for governing substantive law compels reversal." Id. at 49.
"The district court failed even to evaluate the requirement that the challenged conduct be 'generally applicable to the class, ....'" Id. at 51.
"Wal-Mart's unrebutted statistics, improperly ignored by the district court, show that the vast majority of class members did not work at facilities where discretionary decisionmaking was used to discriminate ...." Id. at 52.
"The district court recognized that 'plaintiffs have foregone compensatory damages in this case,' presumably because a request for such damages would have certainly rendered (b)(2) certification unavailable and made commonality and typicality even more far-fetched than they already are." Id. at 53.
"The district court paid lip service to this rule ..., but then proceeded to apply a different test ...." Id. at 54.
"Ultimately, the district court found this class to be certifiable only by devising an unprecedented process that will have the inevitable consequence of abridging Wal-Mart's substantive rights, running roughshod over basic concepts of fairness and due process, and compromising the rights and interests of absent class members." Id. at 58.
"The certification order simply dispenses with these principles." Id. at 59.