Consumer Advocate Legal Update : Class Action Lawyers & Attorneys : Khorrami Pollard & Abir Law Firm : Mass Torts, Products Liability

An editorial run online yesterday at nytimes.com as well as in print in today's New York Times, addresses Wal-Mart's pending petition for Supreme Court review of the 9th Circuit's April ruling affirming class certification of the largest employment class in U.S. history. The class is comprised of over 1 million women who have worked for Wal-Mart,  the nation's largest private employer,  throughout the last decade, and allege they have experienced ongoing gender discrimination in relation to equal pay and promotions.

The editorial notes that seeking Supreme Court review is likely a savvy legal move by Wal-Mart given the Supreme Court's tendency to show favor to large corporations, while also opining that a full hearing of Wal-Mart's allegedly discriminatory employment practices is in order. Thus far, the battle between the behemoth corporation and the class has  been strictly limited to whether class treatment is appropriate, and sadly it remains to be seen whether the underlying merits of the plaintiffs' claims will ever be heard on a class-wide basis.

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When Bank of America announced that it will no longer require customers to settle disputes with the company through arbitration, rather than being able to go to court, many saw it as a victory for consumers.  However, as David Lazarus reported in Sunday's edition of the LA Times, Bank of America's decision to drop the arbitration requirement does not mean that it is ending its prohibition on customers joining class action lawsuits.  Betty Riess, a Bank of America spokesperson, told Lazarus, "We aren't addressing the class-action waivers as part of [the decision regarding arbitration].  We will preserve the class-action waivers in our agreements."

Class action waivers prevent individuals from joining with other individuals with similar complaints to sue a company.  As Lazarus noted, class actions are arguably the best tool many consumers have to address problems involving relatively small amounts of money as, often, individual lawsuits can cost more to resolve than the amount under dispute, effectively precluding consumers from seeking redress.

In California, class action waivers in consumer contracts may be unenforceable, especially where they violate public policy (such as where the waiver is included in a contract's fine print).  See Discover Bank v. Superior Court (Boehr), 36 Cal.4th 148, 158-160 (2005).  However, many states permit class action waivers in consumer contracts.  Thus, Bank of America's decision is just the first step in protecting consumers' rights.

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