“The Supreme Court rejected the nationwide class because it did not closely enough follow the [pay and promotion] decision-making processes that were being challenged,” said Joseph Sellers of Cohen Milstein Sellers & Toll, the plaintiffs’ co-lead lawyer. The new complaints, Sellers maintained, are tailored around the company’s regional decision-making model, and also include new statistics and anecdotes specific to each region.
Theodore Boutrous of Gibson Dunn & Crutcher, lead lawyer for Wal-Mart, countered that the new complaints are weak since they rely on the very same class action theories that the Supreme Court rejected in its decision in Dukes v. Wal-Mart. Justice Antonin Scalia wrote in his majority opinion that the plaintiffs had failed to provide proof of a common companywide policy of discrimination. As even the plaintiffs themselves acknowledged, local Wal-Mart supervisors have discretion over promotion and pay policies.
