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By and large agreeing with the plaintiffs’ suggestions on damages, a Philadelphia jury has awarded nearly $78.5 million to a class of some 186,000 current and former employees of Pennsylvania Wal-Marts who may not have been properly paid for missed rest breaks and off-the-clock work. The award roughly reflects the total amount asked for by lead class counsel Michael Donovan of Donovan Searles in Philadelphia during his damages-related closing argument Friday morning. In turn, Wal-Mart’s lead attorney in Hummel v. Wal-Mart Stores Inc., Neal Manne of Susman Godfrey in Houston, had requested that the jury take into account problems with the plaintiffs’ experts’ statistical analyses and hand up an award more along the lines of $7 million. After the verdict was delivered, Manne told The Legal that Wal-Mart plans to file post-trial motions and seek all available appellate options. The jury’s award Friday afternoon came a day after its members determined that the retail giant had failed to pay its post-1998 Pennsylvania workers for time worked off-the-clock and for missed rest breaks, but not for meal breaks that class representatives said they routinely missed as well. However, it took the jurors about two hours mid-day Friday to reach their damages-specific verdict. The $78.5 million awarded by the jury Friday will likely not mark the full amount that will ultimately be paid to Wal-Mart’s Pennsylvania employees as a result of the Hummel litigation. As there were no punitive damages claims made in the Hummel complaint, the jury’s award Friday is comprised exclusively of compensatory damages. But Philadelphia Common Pleas Judge Mark I. Bernstein, who presided over the month-long trial, will in the near future have to decide, without the jury’s input, how much Wal-Mart’s Pennsylvania employees are owed under a statutorily designated damages scheme. Class counsel hope that figure will total an additional $62 million on top of the Hummel jury’s award, but Wal-Mart’s attorneys are sure to contest that calculation. Under Pennsylvania’s Wage Payment and Collection Law, employees who have not been properly compensated for time worked are eligible to file claims for liquidated damages. The WPCL’s liquidated-damages provision states that plaintiff-employees who qualify are entitled to the greater of two sums: $500, or 25 percent of the total amount of wages due. Donovan told The Legal Thursday that he believes the $500-per-plaintiff option would be applicable in Hummel; due to the WPCL’s statute of limitations, approximately 124,000 class members are expected to qualify for liquidated damages, Donovan said, resulting in a potential total of some $62 million. Before Friday morning’s damages-related closing arguments, Bernstein told counsel that he was unclear about one aspect of the WPCL’s liquidated damages provision. “I’m not clearly understanding from this model of clarity that our Legislature has enacted,” he said, “[$500 or 25 percent of wages due] per what?” Manne and Donovan told Bernstein that they both agree that the statute implies that the amount is to be awarded per plaintiff. But Manne went on to suggest that Wal-Mart believes calculating the liquidated damages in Hummel will not be simple, and could require further proceedings regarding the procedure for performing those calculations. Friday morning’s damages-related closing arguments took about 45 minutes each. Their liability-related counterparts, which were made Tuesday morning, took about two hours each. During his damages closing Friday, after asking the jurors to accept the plaintiffs’ estimates as to damages, Donovan attempted to insert some “send-a-message” rhetoric into his argument. “Your decision here could send [this] message to [Wal-Mart]: change your computers,” Donovan said, referring to the machines that the company has used to calculate workers’ wages. He added later, “That’s an important, critical message to corporate America.” Manne stood up and objected, and Bernstein sustained. Bernstein explained to the jury that their job is not to send a message to corporate America. “There is no punishment involved, and no message involved” in your decision, he told them. Donovan later showed the jury exhibits detailing the plaintiffs’ estimates of economic damages they feel the class is owed. Donovan concluded by referring to the company’s seeming monopoly on America’s retail industry. “In order for Wal-Mart to understand this verdict, it needs to see numbers,” Donovan said, adding later, “If there is any change in those numbers, it’s a victory for Wal-Mart.” Any change in the numbers reflected in the verdict would mean that Wal-Mart had been given an unfair advantage over its law-abiding competitors, Donovan also argued to the jury. “There isn’t a special �Wal-Mart rule,’” he said, echoing a constant refrain throughout both his sets of closings in Hummel. Manne began his damages closing by telling the jury that he respected their findings as to liability. “But you would know that I was not telling you the truth if I told you I was not disappointed,” he said. He went on to point out gray areas in the plaintiffs’ experts’ calculations of damages allegedly owed, calling them “wildly exaggerated numbers.” The jurors apparently believed that had not been the case. With respect to off-the-clock time, they awarded the class nearly $2.5 million, effectively the same amount suggested by Donovan during his damages closing. As for missed rest breaks, they awarded slightly less than $76 million, a figure also quite close to that put forward by Donovan just hours earlier. While lawyers involved in the case had hoped to talk to the jury post-verdict, the jurors did not wish to speak with attorneys after they were officially discharged Friday afternoon, the lawyers said. Donovan told The Legal Friday afternoon that he believes that due to the relatively minimal per-plaintiff amounts owed, the $500 option will be Bernstein’s only choice as he reviews the plaintiffs’ liquidated damages motion. Bernstein proved earlier in the litigation that he will not shy away from being tough on Wal-Mart. In his January decision in support of certifying the Hummel class, Bernstein rejected the notion that the class should not be certified due to the existence of numerous videotaped depositions from apparently content Wal-Mart employees; he called the company’s attention to “the symbolic placement of the middle finger of the captured crew members of the USS Pueblo in photographs displayed by their North Korean captors along with their �confessions.’” In an e-mail statement issued Friday afternoon, Wal-Mart spokesman John Simley wrote that “Wal-Mart associates [hourly workers] are the lifeline of our company, and it is our policy to pay every associate for every hour worked. “Any manager who encourages or even tolerates off-the-clock work or any other wage-and-hour violations is subject to discipline up to and including termination.” Donovan told The Legal that the Hummel litigation proves that some court systems’ fears of manageability problems with respect to class action trials are “overblown.” “I think [this litigation] demonstrates that class actions can be tried � and that those courts that are sophisticated and know how to manage class actions, as our court does, can try them.” Donovan also said that under the WPCL, attorneys fees and costs are to be awarded separately from any civil verdict. He said he believes the fees and costs in Hummel will total approximately $40 million � about half of which is expected to go to attorney fees and expert witness compensation. Donovan’s co-counsel in the matter included Judith Spanier of Abbey Spanier Rodd Abrams & Paradis in New York City and Rodney Bridgers of Franklin D. Azar & Associates in Aurora, Colo. Manne was assisted in his representation of Wal-Mart by fellow Susman Godfrey attorneys, along with Brian Flaherty of Wolf Block Schorr & Solis-Cohen in Philadelphia. The Hummel verdict marks the second major jury award Wal-Mart has been hit with this year over its failure to pay workers for missed break time. This January, a California jury awarded a 115,000-member class with grievances similar to those in Hummel $172 million following four months of litigation. $115 million of that award was for punitive damages. Peter Hall contributed to this report. �

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