it please the court i am theodore j butros jr representing wal mart i'd like to reserve five minutes for a bottle of classification order in this case is literally unprecedented not simply because of the size but because of the number of legal documents the class and i'd like to focus on three of those today on our first or the most basic requirements of rule twenty three commonality and typicality simply put that mean plaintiffs claim simply are not common or typical of the experiences of millions of women around the united states who worked at wal mart this is the first class action decision in history to certify all multipass syllabi excessive discretion class action where there i over ninety percent of the stores there was no statistically significant disparity in terms of pay to men and women at some of the stores women were paid more than men and it some of the stores men were paid more than women and our contention your honor is that given that given that discretion is the key element that is being challenged here that the plaintiffs had the burden to show that there was commonality at the individual units and that the decision making level where the decisions that are instead put on a an aggregate analysis which gather all the statistics nationwide put them together and then he ran regressions on the aggregate numbers that match what is happening at the store level i had thought that statistical analysis was done in the regional level among i believe your honor that did it with the pay analysis was done at the national level and it's a bit i think misleading in the way it's referred to in the record but my understanding is that dr grogan ran a national regression and he came up with a predicted value in terms of the what the hourly pay according to him should be absent discrimination then compare that with the averages that he came up with at the regional level and that was his analysis he never conducted an analysis comparing the t of men and women in the individual regions instead he compared the regions to the national average which does not tell us anything about whether there was discrimination going on the discretionary decisions being made and i'm confused about something there educate me regression analysis means you figure out what's do typically significant indications there are correlations between particular variables where a number of variables have been grouped together as i recall yes out of statistical significance means there is less than one chance out of twenty that the results would have occurred by chance my right so far that sounds right  records show that there is in over ninety percent of the stores there is no statistically significant disparity that is no disparity beyond what you would expect just by chance flip  the point that between the sexes at the stores at that suggests to me that if you look at the stores as a large group you just don't find evidence of sex discrimination your challenge to your adversary's expert is that he didn't do things store by store he aggregated and i am confused about  aggregate analysis does not come out the same as no statistically significant asperity there are a couple of reasons you are for in our expert talked about these first on something called a lot lot of large numbers which when you have such a large dataset statistical significance can be achieved much more easily because her it because of the large data point twice and you get two heads that means nothing flip a coin one hundred times and get ninety eight she showed how if you combined one store where men were paid more than women and then you come up with another store where women were paid more than men in some instances it would show that to group together women made more and then if you looked at another couple of stores it would show that expert did that if you have one store were you've got a manager that discriminates in favor of women and you've got overwhelmingly women managers and another store where the manager discriminat favor of men and you've got overwhelmingly men as managers and the sex discrimination would be masked by grouping the two stores together but why wouldn't the result be the same as no statistical specifically significant disparity in over ninety percent of the stores i think one of the other features your honor is the was would be what the result of the child test would would reveal again to get into the the statistics the challenge test is this fundamental test that statisticians conduct to determine whether datasets can be aggregated together our experts did that task on the plaintiff's aggregated statistics and found that the the aggregation failed that task i  to be clear about one thing about your argument i think you've steered clear but you're you're not relying upon the stricken portion of the hayworth conclusions are you we are not your on of your argument is referred to none of them or for th we did inadvertently cite a couple of pages but that is not fundamental and just to clarify too on page twelve thirty eight of the excerpts of record the judge explicitly says contrary to some of the suggestions from the plaintiffs that the conclusions in the analysis of dr ho employees are women i believe so your honor isn't it about sixty five percent believe that's correct and the flip side is the percentage of salaried employees which would be system managers department managers store managers r that percentage is about thirty three percent i believe that's the plaintiff's expert his tuesday words of our only employees are women and one third of salaried employees in management positions are are women that's when you look at the nationwide statistics you're honoring when you put it all together but as we've pointed out that that does not tell you what's going on at the store level or really even at the at the regional level these decisions are being made even if the promotion point by thousands of store managers when we're talking about the support manager position and we can tell by the way you raise that's interesting so if you can please tell our their records which would show with the basis for those individual decisions in other words when a manager says i'm me and i second point that wal mart require that kind of information if they did it at the time of this these events it did not require those sorts of documentation one of the reasons the plaintiffs attacked the process is that there's there was discretion given to office did not closely monitor the promotion decisions but that's one of the reasons we believe there's no showing of commonality the district court's going to rely quite heavily on those two points that is that these decisions were largely discretionary and that there's very little if any record information that would explain or justify the decisions that were actually me just what was wrong with it well that what was wrong with that your honor is that in terms of show commonality it destroys commonality those two features make it impossible to say that on a system wide basis all of the decision makers were acting in the same way and the district judge stripped walmart of its right in phase two to bring forth the managers to explain their decision and so i ask you about a couple of things on the record that i found interesting that maybe even long periods one is factors included in some of the decisions yes and in fact wal mart feels that it benefits from that policy because they get consistent management style throughout the story right that's correct your honor but but not but there was no evidence that those managers were and the people who were relocated were making common or even at all discriminatory decisions that would show commonality wal mart also has this practice hurt me if i'm wrong about th in order to apply for certain management positions you must to even apply for the position you must have the approval of your supervisor for certain level positions that the leader higher level posting a position that took to go back to one of your other points to talk and the posting data once the posting data was in two thousand and three the company posted for positions thousands and thousands of positions the return rate the applicant stated that came in response to the posting mirrored almost precisely the number of women who had been getting those positions which really refutes the argument that the lack of posting or that the the the  posting earlier was some had not reflecting the number of women who were interested in the process you saying that when they did post that it was fairly random occurrence it wasn't something special that would attract or not attract women and the percentage of women who expressed interest in getting this sort of management position was just the same within statistical significance boundaries as the percentage of women who are in fact have management position we've been getting man that's type of management position earlier before the positions were posted so it really showed that there was a difference in preference and difference and interest in men and women so i think  question when you have a claim like this but the judge in the falcon case the supreme court's decision in coopers and librarian make clear that it's crucial to scrutinize both parties evidence to determine whether there's commonality in here as the case after case is held where you have multiple multiple facilities so our job is not the way the evidence we're not asking you to your honor in fact there's no way that has to go on plaintiffs did not submit any store by store statistics it was their burden let managers have discretion it is a national policy to give them that discretion that national policy lends itself to sex discrimination although they have not proved sex discrimination  why isn't that subject to a class action challenge why isn't there enough commonality and typicality to a challenge to a national policy of not having a national policy aren't the policy itself is one of allowing different people thousands and thousands and thousands of people to do things differently in their own discretion saying you shouldn't be allowed to do that or should be like the post office you should have nationwide criteria and anyone with a master's degree gets ahead of anyone who just has a bachelor's anyone with a bachelor's gets ahead of anyone who didn't get a bachelor's and in the supreme court a united states in the watson case squarely rejected that position the court in watson that discretionary decision making subjective decision making is not per se wrong and it can be very helpful and useful to our economy and to businesses and so it's not it's an impermissible argument to just challenge giving of discretion and i should add that the plaintiff's formula here is three full one it's the discretion to they say there are some central policies none of which have to do with the employment issue but three they have trying these issues i'm not i'm not asking you to judge progress on but it doesn't solve the problem it doesn't show that these decisions were being made in a common way across the board at the stores i have a firm promotion let me ask you this question you know i went through your brief and i don't know when you wrote them or not but you know that a breach of the blue brief i have a dear you know hand language in there and it's a little arrogant it's a little offensive towards a district judge thought talking about the judge thing prolix and wordy and long when then and trampling on walmart's due process right said you meant no disrespect to judge we feel very strongly about these issues and we think that there's been a due process violation here that is very serious and that the court stripped wal mart of its right to put on evidence to defend itself and and we think that that requires the certification of the class of the teamsters decision and under the state farm decision looks like i have twelve seconds left but i thought about it evidence that he ignore the statistics submitted by wal mart that show that ninety crucial your honor one of the daisy crucial but they showed it that there is no commonality throughout this class and they require decertification judge klinefelter the question for i do rule twenty three b three d since one of the things that's supposed to be considered is the difficulties likely to be encountered in the management of a class action could you be concrete make it simple for me what difficulties are likely to be encountered in the management of this class action absolutely honor let me give you one example under the trial plan by the district judge if the plaintiffs prevailed in phase one in phase t wal mart would be precluded from showing that a woman who was working in a los angeles store was making more than her male counterparts that the store itself was paying women more than men that the woman had been promoted into management and had never been subject to discrimination that woman however under the trial court plan would be able to recover back pay if her average if her pay fell below some national average that the plaintiff's expert predicted should have been individual class member and that would entitle wal mart to put on a case and put on a defense the judge found that that was a little beyond management that that goes to due process of law that's correct and it also goes to  incorrect application of title seven act could you focus for a moment on any anything in the nature of simply management unmanageability again the there are a host of issues for example on the punitive damage claim and the back to claim the judge did not describe how really how backpay would be calculated other than to say that this people soft data would be used without wal mart being able to respond right that's true your honor but he but the judge the district judge has that has to make sure now before this goes too far down the road that it can be done that the manageability if this was done properly would require that wal mart have the right to bring in its store managers from around the country and syria's one point five million individuals there's no your honor it's not as i said the store by store statistics show that at most european syria's forty five hundred individual since i don't think it would be if women won six or seven in a row then wal mart would settle all the others and if wal mart won seven or six or seven in a row then that would be hard for plaintiffs to find lawyers the collective wisdom of juries can can could meet the standards so we're not suggesting that there aren't way to effectively enforce title seven wal mart had strong equal employment policies and we recognize that these are important policies that work here a good thing about a class action from the defense point of view as  prevail if you don't have to worry about the collective wisdom of juries that's true your honor that's true and that the fact of the falcon case made the point that oftentimes everyone assumes that the plaintiffs are going to win yes this case goes to trial one point six million women could conceivably lose and that's a danger as well and so we think that a fair another possibility would be you settle and the lawyers get a fee the plaintiffs get i don't know who ponds or promises of free employment at a higher rate if they want factual findings do we have discretionary calls and you know we have an eighty three pages of findings by this court which are highly specific finding for example that there is a uniform policy throughout the country allowing the same zone of discretion in every region and every division every summer trial of fact i think the judge was just saying that there was no dispute that as a national matter wal mart does not impose any particular structure for hiring and promotion criteria that under the court went way beyond that your honor what the court found was that there's uniform job categories job duties procedures you see the word found you're asking me to review for clear error and it's a very curious thing when there has not been a trial of fact or you in one second but he made highly specific factual findings throughout and this court has held that those findings even a class sort hearing are binding unless there's clear air and the defendant here does not challenge any single findings having cl including your honor despite the defendant's claim that all stores are autonomous this court made it so you can clear ever review not abuse of discretion review the abuse of discretion is only as if there's clear error or legal airfare and the defendant is bound by the factual findings below since it did not show any of them erroneous and i think i need to point out what the court specifically found it found that there are excerpts right here where yes we think through  looking at the class sort of occasional order which starts with a table of contents which goes on from pages ten to forty five has findings highly specific findings for example excerpts of record eleven forty seven forty eight and eleven fifty nine thousand uniformed personnel in management structure findings of fact there well he didn't use that term he made factual findings ron i think that's a very important firm yes and i think it's a very important what this court has found is when  your ring where he said i now make the following findings of fact what he had was two thousand exhibits and five hundred declarations are and as if i'm on motions for summary judgment and it's impossible to make a finding of fact all you can find had a hearing based on an evidentiary record and he pronounced findings in one different words well hearing based on an evidentiary record it's like an argument between lawyers based on exhibits they've submitted hearing is where witnesses testify and they testify contrary to each other quite frequently and the judge says i find the following facts and i want to know which he did he did not have a live testimony evidentiary hearing colleagues question i think it was is that a factual determination or a legal determination well perhaps this is a matter of semantics but let me look at what the legal are you responding it's a blank that the judge made factual and legal determinations the factual determination see made was that there was substantial evidence to show commonality and typicality and adequacy of representation so he made when he concludes that the point of his met their burden under rule twenty necessary and it's a must if it is mixed what's the standard review the standard of review is that the factual findings that judge are accepted as binding unless there is clear and you review to see if the legal application is erroneous or not and in this case the defendant has made three legal assignments of error each of them is not supported by any law the first claim that they made is as a matter of law that a challenge to a subjective system can never be done on a class basis and the entire argument the defendant made about the you know that that subjective or discretionary that you can assume anything was something the court carefully considered in a factual record that found that there was a company culture and training and movement of people between stores and a statistical record that showed in fact there was a result the supreme court in the watson case rejected the same argument the defendant made here the paradox there yes if i recall watson right what it said was that discretion may allow for sex discrimination but this graph and isn't per se sex discrimination absolutely it isn't any more than a test as per se just how nice now if i understand your argument correctly it's essentially at its core that wal mart has a national policy of not having a national policy about who gets promoted or on what criteria or who gets raises  you it's all up to the discretion of the individual store managers to create their own systems and your expert says that may lend itself to sex discrimination if they're serious typing have i got it right so far no your honor our argument was that they had a common policy allowing the same level of discretion in every division of the company and with a high degree of centralization with common training so that the exercise of that discretion in the context of uniformity of conditions common culture common movement of managers was a likely to be uniform throughout the company it wasn't just anything goes happy with the exercise of that these decisions could be made they were happy with the way in which that discretion was exercised in me no effort to determine how the individual decisions were made in fact there was no requirement that any whatsoever be kept on how those individual things were decided and i thought now i have trouble getting from there to the sex discrimination without some solid statistical evidence something i think the hiring decisions that we make for a walk works we don't advertise them we get hundreds and hundreds of applications every judge has and tiredly subjective and personal criteria there is no national order for what our criteria should be you don't have to pick from the top us news list schools or anything it's just whatever you want it may be that judges like the rest of humans have various duryea types it seems like you would have to prove sex discrimination if it were if we didn't have all our enjoyable immunities by a particular drug well you know that the difference your honor is i think i would be the last person to suggest that judges are anything but autonomous you have your own hiring standard there is no oversight of what you do and well i think significant wal mart does not have thirty six separate judges there's six hundred separate judges as a highly uniform system which the judge found will subject oversight and constraint judges don't move around the bench what is your time if you had particular challenges for example of wal mart had a national policy of veterans preference was it would probably  managers if it had a national policy educational qualifications that would favor women because i think that way from high school more mccorkle even graduate from college more but subject to standards can be challenged as the supreme court has said both in the watson case and own on a national basis as a class action item there's no difference in policy the policy whether it's a test or subjective standard in a life that has an adverse impact it has a common result it can be challenged under those cases and i want to go to the statistics i think there's a lot thrown around about showing any indication that there is some national adverse result or ones that with the other half yes we have what we've shown and in fact i want to turn to the statistical showings the plaintiffs dragan plaintiff's expert based on that analysis found statistically significant differences in pay in every single one of the years he analyzed he also found that these differences were statistically significant in every one of the forty one regions of wal mart he further found that the average differences in pay were different in every single region favoring men now that's what the plaintiff showed no court is required to build to accept that card loss but what if the defendants offered the defendant offered a same department even though the pay policy makes no distinction by my department so to give you no sample if there's fifty or sixty departments need for the jury department is ninety seven percent women they are the lowest paid women in the employees that store on the defendant's those women's wages were not compared to anybody else at the store that's how they drew their results nevertheless your honor i want to go to your question about your question how come aggregating wouldn't show no result the defendant didn't aggregate her results even with that expert did aggregate the defendants results and it showed on a nationwide basis even with her slice and dice approach a statistically significant difference in pay between men and women so she didn't aggregate it in this case but if you look at her own data it showed that pattern now the defendant says it's all and we got it the court in fact compared the two models and asked the question is is this evidence compel me to do to accept only a sub unit price of unit model in other assigned to that score there's an automatic report to the district manager is called an exception report and if it is more than that it goes up the line that one of the declarations in this case declaration one to twenty eight percent or else it shows that it's  this management survey that was stricken that showed that in fact there was any differences between those departments or that there was a common policies a different policy for each the record this judge had showed no difference between the departments and show that the defendants basically chopped up the departments to smaller and smaller pieces for statistical analysis and the defendant justified that forth by three reasons it first said and the first and most compelling reason to justify it was based on the survey that was management between stores but more importantly and we but it was the point that plaintiff's expert said the chance test at most shows that perhaps one storm might be different than the other so it doesn't show that there isn't a common pattern throughout the company  recovery based on and on an overall national aggregation that was in the nuclear world to understand i understand i heard the kind of argument the women who are getting paid more than men might get money that's exactly the model the court rejected in fact it cited t circuit opinion in that case the defendant argued let's just divide the money a program out and give everybody ten steps or a dollar or whatever and the court said no we have sufficient evidence to look based on the statistical data and make an individual by individual determination there is no reason whatsoever why in the back pay damages provision you couldn't put into your model to ensure that women who got paid above the average of men in a store or region or whatever the finder of fact appear finds procreate shouldn't get any money you can take that into account i thought wal mart would not be allowed even to take back question to a jury that's not true whatsoever that wal mart in fact can make all the arguments they're making a class or to a jury they can argue what factors should go in to pay that background about experience they can make the argument that there's no common policy or the source of difference to get a master's hearing and you won't be allowed to prove that the judge did not make that all the judge that was at the damage phase or lots of ways you can calculate damages the defendant is not precluded at any stage from from going forward and making the argument that there are individual differences they're also not precluded the remedy things from arguing that a statistical model should exclude paying back pay to any woman who gets more than the average not sure there's nothing that precludes that the judge didn't have to address that problem right now the problem right now is the only data so i'm going to question before i just run out of time on an entirely different topic but it's bothered me representativeness as i recall you have is a woman who was fired for falsifying their time sheets now it seems to me that she would have an interest and you would have a duty in your in the course of your fiduciary duty to represent her to advance her interests she has an interest in getting a common remedy applicable to everyone so that she gets back pay for the money she would have made if you continued to work for wal mart even though she wouldn't have because she got fired for lying on her time sheets but another woman who was honest and i assume that almost all the women who work for wal mart are honest i would have her remedy diluted by the money that goes to your client who lied on her  this class is only about equal pay and promotion it has no claims for demotion no claims for firing so any remedy in this case will include no money for the class that involves those issues that's not present here i thought people like her who were fired and also people who like one or two of your other plaintiffs who had quit would get remedies both monod would get monetary remedy women who worked in this case who were denied equal pay would get a remedy but for denial of equal pay this case does not make any class claims for emotional terminations and no money and damages is sought for that for the class in this case and in fact the defendant never made the argument even below that there was an inadequacy based on that issue  the only that was the argument they made below was a claim that there weren't sufficient management level employees to represent management employees and that issue was abandoned before this court was not made whatsoever you know i want to i want to address the second or the third are you the defendant that there's some kind of automatic due process right to an individual hearing in every case there is no case that has ever held that a defendant has a due process right to an individual hearing challenging every class member and if there was such per se  right you would never have a class of more than a couple hundred people what the supreme court has said and due process is you have to look at the facts in every case and engage in essentially a balancing process look at the interest on both sides and look at what process would standards affirmative action by the defendant a job analysis for criteria stablished what the plaintiffs what the court found below and was undisputed is that the plaintiffs you have sought an affirmative action anything else there's an awful lot you know more you honor but i don't have a complaint actually lays out it's the first exhibit there lays out a whole laundry list of items and what the court found without the standards be i mean how do you know which of your employees to promote if you're not subjective like t method i mean i would think you'd want to manage through that gets along more than you'd want to manager with a masters we're not saying something activity is always bad but we're saying is that having a system where where there is oversight and having and i valuation of what's really necessary to do the job as opposed to take for example the relocation requirement which clearly has had an effect on women wal mart has never shown it needed this this this policy in fact it today after the class it motion was filed it claims to abandon it but it had an adverse impact on women for years but the court found that the injunctive relief would lead to very significant long term relief in this case under spewed by the defendant and also found that the plaintiffs have the motivation to go forward on injunctive relief even in the absence of unit of damages and those are but i want to i want to get back to this last point in my in my remaining time which is the due process argument  challenge each individual class member not based on any contemporaneous records not based on any policies what i'd like to do is have its manager stand up there and subjectively state well i like chuck more than mary in fact what we propose just result it's a drug picks the manager for the master picks the managers and not a wal mart neither of them pick the managers we're talking now about about damage analysis and what happens is if we don't get to this unless the jury has found that there is a company wide pattern in practice of jury will have already ruled that the jury finds at stage one there's a pattern and practice of discrimination at that point the dow should be resolved against the wrongdoers and what the jury will of necessity have found is that wal mart could not defend that pattern and there was no objective basis for doing it at that point the court is under the duty to in the most complete method possible to eliminate the discrimination that exists and what we're saying is wal mart's suggestion which which wouldn't happen because of course there's never going to be one point six million trials is is much less likely to lead to a just result a lot relying on post hoc speculation is not ever going to be as accurate as looking at the only data that's there doing the best you can and that's exactly what the court said was appropriate in this case at this stage of the proceedings or a thank you discrimination it's all over the statistics rule the day and judge kleinfeld the judge ruled wal mart would not be able to put on live testimony from a manager who says i didn't discriminate that violates due process it violates title seven litigant wouldn't be able to put on evidence to defend itself and that the plaintiffs in the court would take the evidence that would be used to punish the defendant that violates you process it violates the state farm decision it's unconstitutional and improper  simply misstated the procedure that he persuaded the district judge to accept the other point i wanted to make briefly is back to this i have a question that certainly has me of the counsel  showed that there was a total absence of discrimination in terms of gender company wide the i think we would be allowed to put on a statistical showing yes now but in most cases your honor you would augment that with testimony from the people just as the plaintiffs put on anecdotal evidence and and the fight is to put on testimony wal mart would be able to say we're going to put the decision makers on to tell you that they were not discriminating phase one the judge said absolutely not you can't put on these individual store evidence and that's all a product of the class action it's not a product of the substantive on that's one of the issues with that get into the basis for the part of the declaration of your expert that was stricken no your honor because her declaration you seriously think that there are wal mart managers that would get on the stand and say well yeah it probably did discriminate no they wouldn't they would get on still every single one of them would get on the stand and say it was an entirely nondiscriminatory decision on my part that's due process and look the jury might believe some of our when this is in might leave some of their witnesses that's called a jury trial but you can't in advance say the defendants limited to some records isn't that inherent in  to store by store analysis our expert did just a regression and it's the want to five seventy nine through five eighty four of the excerpts of record that combined all the separate units except for the grocery department that combine the optical all the specialty and it's and she found it ninety two percent there was no statistical disparity mr selden is perpetuating an error that his own expert made in later admitted he didn't his expert did not realize that our expert had combined all those this slicing and dicing argument is simply incorrect and in their expert minute that he had made a mistake and pages three forty one two three forty two of the plaintiffs supplemental excerpts of record of course been generous with are there's thirty four hundred stores they're making me sweeping claim here that thirty four hundred store managers including many women who are members of this class discriminated that's a serious allegation and in our system of justice those people generally would have the right to get on the stand and say that's false now the only reason they wouldn't be allowed to do that here is because the plaintiffs have swept in the entire nation of stores without proof that there was common discrimination