Wal-Mart argues against class action in appeal

Daily Record and the Kansas City Daily News-Press, Jan 26, 2007 by Charles Emerick

With plans to reverse a Jackson County judge's 2003 decision, Wal- Mart argued before an en banc appellate panel Thursday that nearly 200,000 employees in a class action suit lacked a common complaint.

Former and current employees of Wal-Mart and Sam's Club make up the class that Jackson County Circuit Judge Sandra Midkiff certified in November 2005. The plaintiffs, who worked at 128 Missouri stores during a seven-year period, alleged that the world's largest retailer failed to pay them for all the time they worked and filed the lawsuit in August 2001.

Kurt Williams, of Berkowitz Oliver Williams Shaw & Eisenbrandt, claimed before the 11-judge panel at the Missouri Court of Appeals Western District that there was no proof of common claims.

"The court abused its discretion by making a decision that has no rationale support," Williams said.

The trial court held a seven-day evidentiary hearing in July 2003 for class certification. The hearing included testimony from five former Wal-Mart and Sam's Club employees and one expert witness.

Midkiff granted the motion in a 28-page order and modified the class by separating it into two classes - one for Wal-Mart hourly employees and one for Sam's Club hourly employees.

Each class also was divided into four subclasses based on the issues of the case - missed rest breaks, false deductions for meal breaks, time spent locked in the store after closing and off-the- clock work.

"The trial judge here took a lot of time and a lot of care," plaintiffs' attorney Stephen Long, of Shughart Thomson & Kilroy's Denver office, said to the judges.

Wal-Mart appealed to the Western District Court of Appeals six weeks after the class certification.

Williams on Thursday denied that there was a "common thread" when Judge Hal Lowenstein questioned him.

He claimed a class was not manageable because the proof needed to establish commonality would require a look at each plaintiff's issue. He also questioned how the plaintiffs could prove some employees missed their breaks when some might have skipped them to leave work early.

To support Wal-Mart's argument, Williams often referred to similar cases in several other states where courts denied class certification.

Long said his clients were all making the same complaint: They all worked without pay.

"There will be significant evidence - in this case that you have to work off the clock if you want to keep your job," said Long, who added that store managers intentionally understaffed their stores.