U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

68–273 PDF 2012

S. HRG. 112–108 

BARRIERS TO JUSTICE AND ACCOUNTABILITY: 

HOW THE SUPREME COURT’S RECENT RULINGS 

WILL AFFECT CORPORATE BEHAVIOR 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TWELFTH CONGRESS 

FIRST SESSION 

JUNE 29, 2011 

Serial No. J–112–31 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

CHUCK SCHUMER, New York 

DICK DURBIN, Illinois 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

AL FRANKEN, Minnesota 

CHRISTOPHER A. COONS, Delaware 

RICHARD BLUMENTHAL, Connecticut 

CHUCK GRASSLEY, Iowa 

ORRIN G. HATCH, Utah 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

MICHAEL S. LEE, Utah 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

KOLAN DAVIS, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Grassley, Hon. Chuck, a U.S. Senator from the State of Iowa ............................ 2 

prepared statement .......................................................................................... 89 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 1 

prepared statement .......................................................................................... 110 

WITNESSES 

Alt, Robert, Senior Legal Fellow and Deputy Director, Center for Legal and 

Judicial Studies, Heritage Foundation, Washington, DC ................................. 9 

Cox, James D., Brainerd Currie Professor of Law, Duke University School 

of Law, Durham, North Carolina ........................................................................ 12 

Dukes, Betty, San Francisco, California ................................................................ 4 

Hart, Melissa, Associate Professor and Director, The Byron White Center 

for the Study of American Constitutional Law, University of Colorado 

School of Law, Boulder, Colorado ....................................................................... 7 

Pincus, Andrew, Partner, Mayer Brown, LLP, Washington, DC, statement ...... 5 

QUESTIONS AND ANSWERS 

Responses of Robert Alt to questions submitted by Senators Grassley, Kohl .... 28 

Responses of James D. Cox to questions submitted by Senators Klobuchar, 

Kohl ....................................................................................................................... 33 

Responses of Melissa Hart to questions submitted by Senators Klobuchar, 

Kohl ....................................................................................................................... 37 

Responses of Andrew J. Pincus to questions submitted by Senators Grassley, 

Klobuchar, Kohl ................................................................................................... 40 

SUBMISSIONS FOR THE RECORD 

AARP, Washington, DC, statement ....................................................................... 50 

Alt, Robert, Senior Legal Fellow and Deputy Director, Center for Legal and 

Judicial Studies, Heritage Foundation, Washington, DC, statement .............. 53 

Boutrous, Theodore J., Gibson, Dunn & Crutcher LLP, Washington, DC, 

June 28, 2011, letter ............................................................................................ 61 

Constitutional Accountability Center, Elizabeth B. Wydra, Chief Counsel, and 

Douglas T. Kendall, President, Washington, DC, statement ........................... 68 

Cox, James D., Brainerd Currie Professor of Law, Duke University School 

of Law, Durham, North Carolina, statement ..................................................... 74 

Dukes, Betty, San Francisco, California, statement ............................................. 82 

Examiner, Daniel J. Popeo, May 20, 2010, article ................................................ 87 

Greenberger, Marcia D., Co-President, National Women’s Law Center, 

Wasington, DC, statement .................................................................................. 93 

Hart, Melissa, Associate Professor and Director, The Byron White Center 

for the Study of American Constitutional Law, University of Colorado 

School of Law, Boulder, Colorado, statement .................................................... 100 

HR Policy Association, Michael D. Peterson, Associate General Counsel, Director, Labor & Employment Policy, June 29, 2011, letter .............................. 108 

Mikulski, Barbara A., a U.S. Senator from the State of Maryland, statement .. 112 

National Council of Chain Restaurants, National Restaurant Association, Retail Industry Leaders Association, Society for Human Resource Management, July 6, 2011, joint letter ........................................................................... 114 

Page

IV 

National Employment Lawyers Association (NELA), Eric M. Gutie ́rrez, Legislative & Public Policy Director, Washington, DC, statement ........................... 115 

People for the American Way Foundation, Washington, DC, statement ............ 125 

Pincus, Andrew, Partner, Mayer Brown, LLP, Washington, DC, statement ...... 136 

The Volokh Conspiracy, Jonathan H. Adler, June 29, 2011, article ................... 163 

Washington Post, Robert Barnes, Staff writer, March 8, 2009, article ............... 166 

(1) 

BARRIERS TO JUSTICE AND ACCOUNTABILITY: HOW THE SUPREME COURT’S RECENT RULINGS WILL AFFECT CORPORATE 

BEHAVIOR 

WEDNESDAY, JUNE 29, 2011 

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC 

The Committee met, pursuant to notice, at 10:19 a.m., Room SD– 

226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, Chairman of the Committee, presiding. 

Present: Senators Feinstein, Whitehouse, Franken, Blumenthal, 

and Grassley. 

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. 

SENATOR FROM THE STATE OF VERMONT 

Chairman LEAHY. Good morning. This morning we are going to 

highlight several recent Supreme Court decisions, one, to examine 

the impact on the lives of hardworking Americans. 

In my view, each of these decisions give corporations additional 

power to act in their own self-interests and each limits the ability 

of Americans to have their day in court. 

In the tough economic times we are facing around the country, 

it is of particular interest because American consumers and employees rely on the law to protect them from both fraud and discrimination, and they rely on the courts to enforce those laws intended to protect them. 

But, unfortunately, I believe these protections are being eroded 

by an activist court and, actually, the most business-friendly Supreme Court in the last 75 years. 

Last week, in Wal-Mart v. Dukes, five men on the Supreme Court 

disqualified the claims of 1.5 million women who spent nearly a 

decade seeking justice for sex discrimination by their employer, 

Wal-Mart. They ruled the women did not share enough in common 

to support bringing a class action. 

Perhaps more troubling, they told those women that Wal-Mart 

could not have had a discriminatory policy against all of them because it left its payment decisions in the local branches of its 

stores. 

Through this decision, a narrow majority of five justices have, 

again, made it harder to hold corporations accountable under our 

historic civil rights laws. 

2 

Earlier this month, in Janus Capital v. First Derivative Traders, the same five justices gave corporations another victory by shielding them from accountability even when they knowingly lied to 

their investors. Some have said the Janus decision provides Wall 

Street companies with a license to lie. Others have said it is a 

roadmap for fraud. 

If you lie to your investors, as long as you follow the guidelines 

of the Supreme Court Janus decision, apparently, you can get away 

with it. 

Whichever phrase you use, the decision allows Wall Street companies to design new ways to evade accountability from the horror 

inflicted on hardworking Americans who have seen their life savings ravaged over the past few years by fraudulent investment 

schemes and corporate misconduct. 

Two months go, in AT&T v. Concepcion, the Supreme Court, in 

another 5–4 opinion, held that companies can take advantage of 

the fine print on telephone bills in other contracts to bar customers 

from bringing class action lawsuits. 

Now, binding arbitration, binding mandatory arbitration makes 

a farce of the American people’s constitutional right to a jury trial 

and the due process our Constitution guarantees to all Americans, 

because the arbitration had no transparency, no juries, and, of 

course, what is worse, no appellate review. 

So these cases we are discussing a few examples of how the 

Court’s recent decisions are going to hurt individual Americans and 

benefit those who engage in misconduct. 

Over the past few years, the American people have grown frustrated with the notion that regardless of their conduct, some corporations are considered too big to fail. The Supreme Court’s recent 

decisions may make some wonder whether the Court has now decided that some corporations are too big to be held accountable. 

We have a situation where they are too big to fail, too big to be 

held accountable, and we have a real concern in this country. In 

fact, the unfortunate feeling is that many of the justices view plaintiffs as a mere nuisance to corporations. 

I believe that the ability of Americans to band together to hold 

corporations accountable when these things occur has been seriously undermined by the Supreme Court. Decisions have been 

praised on Wall Street, but they are hurting hardworking Americans on Main Street. 

So I thank the witnesses for being here today. 

Before we start with the witnesses, of course, I would yield to my 

friend, the distinguished Ranking Member, Senator Grassley of 

Iowa. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR 

FROM THE STATE OF IOWA 

Senator GRASSLEY. Thank you very much. Everyone should agree 

that all Americans, whether you are an individual or a business entity, must have confidence that when they appear before a judge 

they will receive a fair and unbiased adjudication of their claims 

and defenses. 

3 

Everyone knows how strongly I believe in Congress’ constitutional duty to conduct oversight of the other branches of the government, even including reviewing the Federal judiciary, but that 

review must be fair and objective. 

So I am concerned, given the less than objective title of this hearing, and I know the title does not make up the testimony, but some 

might ask whether certain conclusions have been reached before 

this hearing has even started. 

What businesses, just like all litigants, deserve from the judiciary and from Congress is a fair hearing, the protection of their 

rights, and a measure of predictability of the law. 

The United States was founded on the principle that all persons 

should receive equal justice under the law. Americans believe that 

the most fundamental requirement for a legitimate legal system is 

that it be staffed by judges and by justices who are fully committed 

to impartially adjudicating the cases that come before them, regardless of the identify or the status of the litigants. 

This belief should be of no surprise to anyone. A solemn pledge 

of impartiality is mandated by the oath taken by Federal judges 

and justices. And lest we forget, the phrase ‘‘equal justice under 

law’’ is engraved above the United States Supreme Court Building. 

Those are more than just pleasant-sounding words. 

The fundamental principle of equal justice under the law has its 

origins in the foundations of Western civilization and the birth of 

the concept of representative government. 

Today, the concept of equal justice under the law and a truly impartial judiciary are at the heart of our legal system and our democratic system of government. Contrary to this fundamental principle, it would seem that those who accuse the Supreme Court of 

being biased and pro-business want justices and judges appointed 

who will decide cases based on the empathy that they have for certain groups or litigants or certain causes. 

The appointment of an individual as a Federal judge or a Supreme Court justice because he or she possess empathy or sympathy for certain categories of litigants over others is misguided, it 

is unwise, and it is very contrary to the fundamental principles 

upon which our governmental and judicial systems are based. 

Under the ethical rules governing Federal judges, judges are required to consider the controversies before them impartially and 

must disqualify themselves if their impartiality can be reasonably 

questioned. 

A judge whose rulings are influenced by empathy violates his or 

her oath and the ethical canons governing the conduct of judges. 

When it comes to judging, empathy is only good if you are the 

person or the group that the judge has empathy for. In those cases, 

it is the judge, not the law, that determines the outcome, and that 

is a dangerous road to go down if you truly believe in the rule of 

law. 

Individuals with legitimate claims should have a chance to make 

them, but not all individuals have legitimate claims. It appears 

that those who attack the Supreme Court for supposed bias in 

favor of business want to change our system. Under their view, it 

would seem that legal disputes are nothing more than political popularity contests where the side with the loudest voice or the loudest 

4 

advocacy groups, wins, notwithstanding what the law actually provides. 

Our founders predicted this. They knew that judges and justices 

would be subjected to these kinds of attacks. That is why our 

founders created the system that they did and provided for life tenure for Federal judges and justices in Article III of the Constitution. 

Under our Constitution and statutes, judges and justices must 

apply the law impartially and call cases as they see them, without 

regard for the status or political views of the litigants. 

That is our system, it works, and it is the best that mankind has 

ever known. 

[The prepared statement of Senator Grassley appears as a submission for the record.] 

Chairman LEAHY. Thank you. 

Our first witness this morning will be Betty Dukes. As many of 

us know, she is the lead plaintiff in a class action case alleging discrimination in pay and promotions, Dukes v. Wal-Mart. When the 

company opened a store in her hometown of Pittsburg, California, 

Ms. Dukes anticipated many opportunities on her horizon. She was 

hired by Wal-Mart in 1994, was very happy about working for the 

company. 

She had learned about the Walton family and their vast business 

empire in a community college class in the mid 1980’s. Los 

Medanos Community College, she was placed on the dean’s list, obviously made Ms. Dukes and her family quite proud. 

When Wal-Mart hired her, she had nearly 25 years of retail experience, including work as a head cashier and then as a department manager. 

This May 25 marked her 17th year of working at the Pittsburg 

Wal-Mart store. She still feels positive about her work environment, believes in the strength of her case. She wants to go to trial 

and have her voice heard. 

I was struck by what somebody told me was your favorite quote, 

which I think you may hear me using later on. It is, ‘‘Don’t let fear 

get under your feet for it will carry you where you don’t want to 

go.’’ That is a great quote. 

We will start with you, Ms. Dukes. We will put your full statement in the record, of course, but please go ahead. 

STATEMENT OF BETTY DUKES, SAN FRANCISCO, CALIFORNIA 

Ms. DUKES. Good morning, Mr. Chairman and members of the 

committee. I am Betty Dukes. I am honored to have been invited 

to speak to you this morning. 

The Supreme Court’s ruling in the Wal-Mart v. Dukes has 

brought me before this Committee today. I would like to share a 

little of my history as a Wal-Mart employee. 

I grew up in the city of Pittsburg, California and have worked 

at the Wal-Mart store there for 17 years. I had worked in the retail 

industry for nearly 25 years before coming to Wal-Mart. Most of my 

working career has been in the retail business. 

From the start of my career with Wal-Mart, I sought opportunities for advancement. But during my 17 years at Wal-Mart, I have 

received only one promotion. While working at Wal-Mart, I reVerDate Nov 24 2008 09:24 Mar 08, 2012 Jkt 068273 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\68273.TXT SJUD1 PsN: CMORC
5 

ceived numerous awards for outstanding customer service and 

other duties performed well. 

Prior to filing this lawsuit in 2001, there was never any posting 

for management positions in my store. For the first 9 years that 

I worked at Wal-Mart, I never saw nor heard of any system for applying to get into management. 

After the lawsuit was filed, I learned that my experience was 

typical of what other women had experienced at other Wal-Mart 

stores. Once this lawsuit began, I also learned through the WalMart workforce database that women were paid less than men for 

doing the same work in Wal-Mart stores. 

Rather than bring a claim just on my behalf, I brought this lawsuit on behalf of women who worked at Wal-Mart stores in this 

country. We have evidence that countless numbers of us have been 

subject to the same working conditions and the same practice 

which favored men. 

I had hoped this suit would permit us to get an order from the 

court to stop Wal-Mart from treating women unfairly compared to 

men. I was disappointed last week when the Supreme Court 

blocked us from bringing these claims together in one single case. 

We have collected a lot of evidence that women consistently receive unequal pay and unequal promotion supporting our efforts to 

try their claims together. Unfortunately, the Supreme Court, in a 

sharply divided decision, did not allow this case to go forward. 

Women will now have to pursue smaller class cases or individual 

actions. We will continue to proceed on behalf of as many women 

as possible who are part of the class. But many women will give 

up because it is too hard to sue Wal-Mart on their own. It is not 

easy to take on your own employer. It is even more difficult when 

that employer is the biggest company in the world. 

In this country, there are many Betty Dukes who want their 

voices to be heard when they are denied equal pay and equal promotions. For many of these women, I am afraid that the Court’s 

ruling will leave them without having their due day in court. 

Thank you. 

[The prepared statement of Ms. Dukes appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. And I am sure that a 

number of those women are watching you and your testimony. 

Our next witness is Andrew Pincus, who is well known to this 

committee. He is a partner at the firm Mayer Brown. He frequently 

argues before the Supreme Court, is well known to the Court. He 

previously served in the Department of Justice as an assistant attorney general, and, of course, as general counsel of the Commerce 

Department. 

Mr. Pincus, glad to have you here. 

STATEMENT OF ANDREW J. PINCUS, PARTNER, MAYER 

BROWN, LLP, WASHINGTON, DC 

Mr. PINCUS. Thank you very much, Mr. Chairman, Ranking 

Member Grassley, and members of the committee. It is an honor 

to appear before the Committee today. 

To assess the impact on corporate behavior of the Court’s recent 

decisions, I looked at the outcomes in all of the Court’s cases inVerDate Nov 24 2008 09:24 Mar 08, 2012 Jkt 068273 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\68273.TXT SJUD1 PsN: CMORC
6 

volving private plaintiffs seeking damages from businesses, and 

this year there was a tie. 

Business parties lost just as many times as they won in such 

cases this year, nine wins for business parties, nine wins for plaintiffs suing businesses. 

Indeed, in the cases involving substantive interpretations of employment law, business parties lost every case decided by the 

Court. 

I know that some will say business won the most important 

cases, but I wonder if their perception of the importance of the 

cases is not colored by their outcome. If, for example, the Court, in 

the Kasten case, had said in retaliation claims under the Federal 

anti-discrimination laws, complaints must always be in writing, I 

think the reaction would have been, and quite justifiably, this is an 

outrage, it is a process requirement that will chill retaliation 

claims and open the door for companies to intimidate workers; or 

if the Court, in the Staub case, had said as long as the actual decisionmaker in an employment case did not act with discriminatory 

intent, even if a supervisor had exhibited discrimination, then a 

discrimination claim cannot be brought, I think there, too, there 

would be great concern about that. 

So I do think, in looking at the Court’s cases, it is important to 

look at the whole range. 

Turning to some of the cases that have already been these subject of discussion, I think it is also important to distinguish between legal analysis and policy decisions. All of the cases that we 

are talking about today presented questions of statutory interpretation either of laws passed by Congress or of the Federal rules governing court procedures. And the Supreme Court, of course, does 

not ask what policy outcome is best. Rather, its role is to ascertain 

the intent of Congress using legal principles that have general acceptance by all of the members of the Court, although, as the Committee knows, they vary somewhat in the emphasis that they give 

to some of those principles. 

Of course, it is possible to have a vigorous policy debate regarding the best way to resolve these issues, but the policy debate is 

separate from the legal question before the Court, and I think that 

separation is important. 

In Wal-Mart, Concepcion, and Janus, in my view, the legal positions of the plaintiffs that were asserted in those cases departed 

substantially from existing law, and I do not think it is that surprising that the Court refused to embark on the quite radical 

courses that were being urged by the plaintiff and instead adhere 

to the principles that had been recognized in the Court’s prior cases 

in those three areas. 

In Wal-Mart, for example, the Court confronted an unprecedented class action with what the majority found to be a failure of 

proof that there really was a common legal question in the case, 

and the decision very much rested on the particular facts that had 

been adduced in support of the commonality issue. 

In Janus, the Court has previously twice rejected aiding and 

abetting claims under Section 10(b) of the Securities and Exchange 

Act, and this case seemed to be a pretty clear attempt to avoid 

7 

those rulings by seeking to impose aiding and abetting liability 

with a different label. 

Again, someone who was alleged to have helped another commit 

a securities violation should be liable is the argument and the 

Court said, ‘‘Well, we have really dealt with that issue twice before 

and reached a decision on it. We are going to reach that same decision again today.’’ 

And, finally, in AT&T v. Concepcion, California, in what was 

really another outlier decision, had applied a state law rule different from that of 22 other states to invalidate the arbitration 

clause in this case, and the Court said a state can condition the enforcement of an arbitration clause on compliance with conditions 

that will effectively turn arbitration into litigation. 

And so just as a state could not say we are happy to enforce arbitration clauses as long as the arbitrators are 12 people picked off 

the street, sort of just like a jury, because that would turn arbitration into a court proceeding, the Court said insisting on class action 

procedures would do exactly the same thing. 

The scope of the Court’s rulings are going to be debated in dozens, if not hundreds of cases in the lower courts, and impossible 

to predict now how they are going to come out. 

But I think one thing is certain. The predictions that are being 

made now about their reach are likely to be incorrect. Two years 

ago, many asserted that the Court’s ruling in Ashcroft v. Iqbal, 

which involved the standard for determining whether a complaint 

is sufficient to allow a case to go forward in Federal court, was 

claimed to dramatically restrict access to the courts and Congressional action was needed, it said, to overturn that decision. 

The Federal Judicial Center just released a decision—an analysis 

3 months ago finding that, in fact, in those 2 years, there has not 

been any increase in the rates of motions to dismiss in cases generally and especially in civil rights and employment discrimination 

cases, which were a particular focus of the concern about Iqbal. 

So, again, just a cautionary word. We do not really know what 

these decisions are going to mean until we see how the lower 

courts will interpret them. 

Thank you. 

[The prepared statement of Mr. Pincus appears as a submission 

for the record.] 

Chairman LEAHY. Thank you very much. 

The next witness is Professor Melissa Hart. She teaches at the 

University of Colorado School of Law. She specializes in employment discrimination and Supreme Court decisionmaking. After 

graduating from Harvard Law School, she clerked for Justice John 

Paul Stevens on the United States Supreme Court. 

Professor, it is good to have you here. Please go ahead. 

STATEMENT OF MELISSA HART, ASSOCIATE PROFESSOR AND 

DIRECTOR, THE BYRON WHITE CENTER FOR THE STUDY OF 

AMERICAN CONSTITUTIONAL LAW, UNIVERSITY OF COLORADO LAW SCHOOL, BOULDER, COLORADO 

Ms. HART. Chairman Leahy, thank you. Members of the committee, I appreciate the opportunity to talk with you today. 

8 

I have been asked to focus particularly on two cases, Wal-Mart 

v. Dukes and AT&T v. Concepcion, and the impacts they might 

have on both access to justice and, consequently, on corporate accountability and corporate behavior. 

These cases are very different in the context in which they arise. 

Concepcion is a consumer case involving a cell phone agreement. 

Wal-Mart v. Dukes is a case involving systemwide allegations of 

pay and promotion discrimination in the workplace. 

But while the substantive law underlying these two cases is very 

different, they have important similarities that I think are relevant 

to the conversation here today. 

First and most significantly, both of the cases, in 5–4 decisions, 

reflect tremendous skepticism—I think it is fair to call it hostility— 

to class action resolution of disputes by the current Supreme Court. 

The erosion of the effectiveness of the class action device has 

moved us very far from the intent of the drafters of Rule 23 in 

1966, the current version of the rule. And because the class action 

is the only way to reach many kinds of systemic misconduct, the 

erosion of this tool insulates companies from any serious risk of 

litigation for many kinds of potentially illegal behavior. 

So this change, this re-interpretation of Rule 23 that has occurred, in particular, in Wal-Mart, has very serious consequences 

potentially for cases outside of the employment area, as well as 

within the employment area. 

A second similarity between these two cases is that they both involve what is really part of a trend of Supreme Court cases over 

the past few years that have re-interpreted procedural rules in 

ways that limit the likelihood that the substantive merits of the 

underlying case will ever be heard by a decisionmaker. 

One of things I think it is important to keep in mind in thinking 

about these cases is these were not rulings on the merits of the 

plaintiffs’ claim. Nobody has said that Betty Dukes and the class 

in Wal-Mart was not discriminated against. Nobody has said yet 

that they were. 

The question was can they put these claims before a decisionmaker. And so the procedural devices are being put ahead of the 

substantive law and interpreted in ways that make it hard to get 

to the substantive questions. 

I think, again, looking at Wal-Mart, it is easy to see how Rule 

23(a), the rule that governs class actions in Federal courts by private litigants, has, from 1966 really until last week, been understood by lower courts, by the Supreme Court, certainly by the rule’s 

drafters, as a threshold inquiry that was not supposed to be a high 

barrier to pursuing a class action. 

It was supposed to consider not the merits of the claims again, 

but whether this group of people could put the merits of the claims 

before the Court. 

In the Wal-Mart decision, these five justices interpreted Rule 

23(a) in a way that actually sets the standards for Rule 23(a) at 

higher, more difficult to meet than the standards than the Court 

had already established in earlier cases for the substantive law underlying these claims. 

So a class cannot be certified, but if it were certified, it would 

meet the standards set in Watson or in Teamsters for winning on 

9 

the merits, and that is a very troubling turning on its head of the 

relationship between procedural rules and substantive rules. 

I think that that is a policy judgment. These judgments about 

how the procedural rules should be used to effect how much and 

what kinds of litigation gets before decision-makers—and this is 

true in the arbitration context, as well—that is much better made 

in state legislatures or in this body than by courts re-interpreting 

rules that have not themselves been rewritten. 

A final similarity that I think it is important to note in thinking 

about these cases is that, while they are very different from each 

other, they are similar in being very typical of the modern world. 

Every single person sitting in this room has signed dozens of contracts like the contract that the Concepcions signed. We all agree 

every day to arbitration agreements that we do not know we are 

agreeing to, and we are all going to be bound by these agreements 

in litigation. And the question of how the courts interpret those 

agreements is something that will affect us all. 

Similarly, Wal-Mart, although people love to call it unprecedented and focus on the size of the company, Wal-Mart, as a type 

of workplace, is, in fact, the type of workplace that more and more 

workers are working in. 

It is a multi-facility, multinational corporation, with decisions 

made in subjective ways that involve assessment by one supervisor 

of the workers working for him or by one regional manager of the 

workers, without a lot of objective standard to that evaluation. 

I think that in light of the ways that these decisions might affect 

people all over the country, it may well be time for this Congress 

to start thinking about changing the law, responding to these judicial re-interpretations with new standards that return the original 

intent of Rule 23 and of the Federal Arbitration Act. 

Thank you very much. 

[The prepared statement of Melissa Hart appears as a submission for the record.] 

Chairman LEAHY. Thank you very much, Professor Hart. 

Our next witness is Robert Alt. He is the senior legal fellow and 

deputy director of the Center for Legal and Judicial Studies at the 

Heritage Foundation, where he specializes in constitutional law. 

Mr. Alt received his law degree from the University of Chicago 

Law School. 

Mr. Alt, we are glad to have you here. Please go ahead. And, 

again, as with all witnesses, the full statement will be placed in the 

record, but please go ahead. 

STATEMENT OF ROBERT ALT, SENIOR LEGAL FELLOW AND 

DEPUTY DIRECTOR, CENTER FOR LEGAL AND JUDICIAL 

STUDIES, THE HERITAGE FOUNDATION, WASHINGTON, DC 

Mr. ALT. Thank you, Chairman Leahy and Ranking Member 

Grassley, for inviting me to testify before your Committee once 

again. 

I share with Senator Grassley the concern that the title of this 

hearing suggests something of a predetermined conclusion, that the 

recent decisions of the Supreme Court will somehow create barriers 

to justice and accountability and will somehow create adverse incentives for corporate behavior. 

10 

I do not believe that the facts support that conclusion. 

Reviewing the business cases from recent terms of the Court 

leads to several important conclusions. One, the Court frequently 

speaks in business cases not in the fractured voice characterized by 

the Court’s critics, but in a unanimous or super-majoratarian voice. 

Two, far from creating new barriers to justice or accountability, 

the Court’s decisions assailed in today’s hearing reject new, novel, 

and frequently unsupported theories advanced by trial lawyers to 

circumvent reasonable existing requirements—requirements which 

were designed to prevent frivolous litigation and to assure due 

process to all parties. And, three, the designer of many of these requirements was none other than Congress. 

With this in mind, it is worth exploring a couple of the cases that 

have been highlighted so far at today’s hearings. First, Wal-Mart 

v. Dukes. Largely ignored so far in this hearing has been the unanimity of the Court’s determination that the action could not be 

brought under Rule 23(b)(2), a section addressing injunctive relief, 

but was more appropriate, if appropriate at all, under (b)(3), which 

permits broader claims of monetary damages. 

It is obvious why it is that the claim was brought under (b)(2). 

(b)(3) is—the certification for monetary damages under (b)(3) is 

harder and more costly than under the injunctive relief section of 

(b)(2), and thus the lawyers attempted to shoehorn what were predominantly claims for monetary relief into the (b)(2) setting. 

But the use of (b)(2) was really, at best, a (b)(3) claim—as tedious 

as the (b)(2)/(b)(3) repetition may be—creates very real due process 

concerns for members of the plaintiffs’ class who are not required 

under Rule (b)(2) to get adequate notice or to have the option to 

opt out of the litigation. 

It also creates serious due process concerns for Wal-Mart, as defendant, which would have been forced to litigate in what the Supreme Court correctly recognized to be trial by formula. While this 

might have been convenient for the plaintiffs, it creates gross unfairness for the defendant, who is entitled to raise statutory defenses to individual claims. 

But perhaps most importantly, in the wake of this decision, there 

are ample opportunities for justice and incentives for good corporate behavior. Smaller and better defined class actions can be 

filed, perhaps ones in which the absurdities of members of the 

plaintiffs’ class not also being accused of discrimination—keep in 

mind that a number of the supervisors in the case were also 

women, but would have been plaintiffs, as the class defined all 

women who were employees of Wal-Mart—would be a good place 

to start. 

Additionally, individual actions supported by Title VIIs offer of 

attorney’s fees for prevailing parties would also be available. Those 

who believe they have been injured by Wal-Mart will have their 

day in court. 

The only party who may claim substantial injury in this case is 

the trial bar. 

Then we move to the Janus Capital cases. This case is yet another attempt to expand the implied private right of action under 

Rule 10(b)(5), but the Court has already answered that question repeatedly, in Central Bank in 1994 and in Stoneridge in 2008, findVerDate Nov 24 2008 09:24 Mar 08, 2012 Jkt 068273 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\68273.TXT SJUD1 PsN: CMORC
11 

ing that it was not appropriate to expand the implied right of action under 10(b). 

Equally important, the Court does not operate on a blank slate 

in this area, but on a statutory regime modified by the Private Securities Litigation Reform Act. Central Bank was decided prior to 

Congress’s consideration of the PSLRA and Congress was urged at 

the time of the PSLRA to extend the private right of action to 

aiders and abetters. You refused to do so. 

Instead, under Section 104 of the Act, you directed prosecution 

of aiders and abetters to the SEC in what is now Section 78(t)(e). 

There are ample incentives—once again, within the context of 

Janus, there are ample incentives and mechanisms to assure justice. 

Secondary actors are subject to criminal penalties, civil enforcement, and add to this that some state securities laws permit state 

authorities to seek fines and restitution from aiders and abetters. 

These mechanisms are hardly toothless. The SEC’s tools to enforce 

include obtaining injunctive relief, issuing administrative orders, 

imposing large civil penalties, including disgorgement remedies on 

any companies aiding or abetting fraud. 

Contrary to the chairman’s statement earlier on, the conclusion 

after Janus is not that if you commit fraud as a corporation, you 

get away with it. As evidence, look at SEC enforcement actions between 2002 and 2008, in which it collected in excess of $10 billion 

in disgorgement and penalties, much of it distributed to injured investors. 

Chairman LEAHY. These were the actions prior to Janus. Mr. ALT [continuing]. Yes. This was 2002 to 2008. So there is already existing—there is already—— 

Chairman LEAHY. They were prior to Janus, prior to the roadmap in Janus. 

Mr. ALT [continuing]. Once again, the authority—— 

Chairman LEAHY. I appreciate—well. 

Mr. ALT.—of the SEC to enforce exists after Janus. And, in fact, 

Congress—— 

Chairman LEAHY. I would appreciate, Mr. Alt, if I might, because 

your time has expired, I appreciate your sarcasm and your continuing sarcasm in your testimony, but there are—— 

Mr. ALT. Well, I appreciate Congress’ determination as to who 

should be enforcing these actions. 

Chairman LEAHY. There are those who differ. But I appreciate 

it, and your whole testimony will be placed in the record and I 

thank you for being here, and I mean that sincerely, the sarcasm 

notwithstanding in your testimony. 

[The prepared statement of Mr. Alt appears as a submission for 

the record.] 

Chairman LEAHY. Professor Cox joined the faculty of Duke Law 

School in 1979, where he specializes in the area of corporate securities law. He has advised the New York Stock Exchange, the National Association of Securities Dealers. He received his law degree 

from UC-Hastings, his LLM from Harvard University. 

Professor Cox, please go ahead, sir. 

Also, each of you, your full statement will be placed in the 

record. And I should note we may start a series of roll calls and 

12 

we will work around the time so that each will have a chance to 

answer questions and to expand on their testimony any way they 

want. 

I would also note, for each of you, the record will be kept open 

so that if there are things that come up afterwards that you have 

agreed or disagreed with anything I say or anybody else says, you 

will have a chance to respond in the record. 

Professor Cox, go ahead, sir. 

STATEMENT OF JAMES D. COX, BRAINERD CURRIE PROFESSOR OF LAW, DUKE UNIVERSITY SCHOOL OF LAW, DURHAM, NORTH CAROLINA 

Mr. COX. Thank you very much. No principle in Western civilization is more well established than the principle that individuals 

who cause harm to another proximately should bear responsibility 

for that. 

A quick perusal of the case law of securities laws would show 

that this is not the principle that applies in the securities areas. 

Let me just review quickly a few cases here. 

The Stoneridge Supreme Court decision held the following: that 

corporations whose executives knowingly prepared false documents 

to conceal from their customers’ auditors that $17 million in the 

customers’ revenues were fraudulent round-trip transactions and 

did so to retain the customer as a client are not responsible to the 

investors who purchased the customers’ shares at inflated prices 

due to the round-trip transactions; or the seventh circuit decisions 

which applied Stoneridge and the Central Bank decision: the president of a newspaper subsidiary who fraudulently inflates the numbers of subscribers and revenues of its subsidiary that he was the 

CEO of is not liable for those who purchased the parent company 

shares at prices inflated as a consequence of the president’s reporting chicanery, having been incorporated into the consolidated financial statements issued by the parent. 

And my favorite is a district court case from the Federal court 

in Utah in which the CEO falsely represented, in a letter to the 

auditor, to prevent the auditor from pursuing confirmations that 

would have uncovered a chain of defalcations that were carried out 

by the CEO and that the auditor, in reliance on the CEO’s letter, 

issued an unqualified statement only to find out in a few months 

later the massive fraud, the firm collapsed and investors lost their 

money. The CEO was not responsible because of Central Bank and 

because of Stoneridge. 

Now, the above cases are hardly aberrations, as we have to look 

at what happened in Janus Capital. The issue in Janus Capital 

was whether an investment advisor who prepared a prospectus 

issued by Janus Investment Funds was responsible for 

misstatements contained in the prospectus. 

A divided 5–4 Court held that the advisor did not make any 

statement in the Janus Investment Fund and, therefore, got a pass. 

The Court’s reasoning for the majority was the following: that 

even when a speech-writer drafts a speech, the content is entirely 

within the control of the person who delivers it and it is the speaker who takes credit or blame for what is ultimately said. 

13 

However, the analogy fails. When a speech is delivered by a 

human being, then it is one thing to identify who the speaker is. 

But a corporation is not such a being. A corporation can only act 

through individuals and then can act only through the symbiosis 

of the entity structure and structures in which the corporation operates. 

Thus, financial reports pass through multiple individuals, each of 

which provides a voice to the inanimate entity. 

The reasoning of Janus Capital is that none of these actors 

makes the statement, because in the eyes of the Court’s majority, 

the statement can only be made by the entity. But, of course, entities do not speak. Individuals do. 

So let me just point out something else here. It was not part of 

my prepared statement. I have now published 10 papers, empirical 

studies of securities class action frauds. One thing we do in our 

studies is look at how many times we saw any evidence of an SEC 

prosecution, through Nexus, et cetera, like that. 

Only in 17 percent of our cases, which are now 900 settlements, 

did we find any evidence of an SEC involvement, not an enforcement action, but just a report that maybe they were carrying out 

an investigation, 17 percent of those cases. 

We also took a look at what gets recovered in those SEC suits— those $10 billion. And let me tell you, that is one horse, one rabbit. 

That is the private plaintiff recover much move—and even the SEC 

admits that they are seriously constrained on what they can recover by way of a disgorgement and a fine recovery versus what 

happens in private suits. So this is not a fair comparison. 

Let me tell you something else here. The Janus Capital case was 

not an aiding and abetting case. If you go back prior to Central 

Bank, that would have been a classic primary participant case. I 

could give you chapter and verse on that. 

What is happening with the Supreme Court is they are perversely interpreting what is aiding and abetting as to exclude individuals from responsibility. We can have an interesting argument 

about whether the entity ought to pay money in a settlement, but 

we can have no argument over the fact that a person whose chicanery defrauds investors should be responsible. And the result of 

what we see in Central Bank, Stoneridge, and now Janus Capital 

is we give the fraudster a pass. 

I see my time is up, but my testimony points out that this leads 

to all kinds of perverse results, with the result that we are never 

holding individuals responsible who ought to be held responsible. 

And I believe everybody, regardless of what side of the aisle you 

are on, would agree to the fact that those who engineer and carry 

out the fraud and, by even the most basic formulation of primary 

participant liability should be responsible, and the case law does 

not lead to that result. 

Thank you. 

[The prepared statement of Mr. Cox appears as a submission for 

the record.] 

Chairman LEAHY. Thank you very much. 

In both my time in the Senate and previous career as a prosecutor, I always felt people who did the wrongdoing should be held 

responsible. 

14 

Ms. Dukes, we can speak about the legal theory of these things, 

but you are the person who is actually involved. 

Can you tell us what united you and other women employees at 

Wal-Mart? How did you come together? What was it that happened, because I think about when Justice Ginsberg referred to 

Justice Scalia’s opinion, she said it focuses its attention on what 

distinguishes individual class members rather than what unites 

them. 

What were the things that united you? 

Ms. DUKES. An opportunity to have a voice and our complaint addressed. As you know, Wal-Mart is a vast corporation. There are 

many Wal-Marts, but we are virtually spread apart. 

It is not that we can come together socially. We come together 

under these premises that we work in an environment that is very 

unfair in the treatment of its employees. 

We have many complaints, but this is just two that have come 

forth. We are trying to untie without having to be under the intimidation of losing your job just because you speak out. We are in a 

very intimidating environment. 

So this avenue was one that would have allowed us, without the 

fear of retribution, to come forth and have our complaint addressed. 

Chairman LEAHY. Are you going to give up now? 

Ms. DUKES. Absolutely not. The best is yet to come. 

Chairman LEAHY. Thank you. 

Ms. DUKES. You are welcome. 

Chairman LEAHY. Professor Hart, the Wal-Mart decision that we 

just discussed with Ms. Dukes, is it going to make it more difficult 

for victims of discrimination to bring and prove their cases when 

they involve disparate impact of policy or is this a one-of-a-kind 

case? 

Ms. HART. Well, it is certainly not a one-of-a-kind case. Again, 

I think one of the interesting things that has happened both in 

court and in the majority opinion, and, also, in the press following 

the case is that people have emphasized the ways that Wal-Mart 

is different from other companies, in particular, that it is so big. 

And it has been suggested that this case was somehow unique. 

In fact, these kinds of cases, cases challenging the excessively subjective decisionmaking, unguided discretion given to managers, 

have been in the lower courts for decades. 

The idea of a claim of excessively subjective decisionmaking leading to discrimination was endorsed by the Supreme Court in 1988 

in the Watson case. 

These kinds of cases have been around for a long time. It is true 

that they are, by their nature, class action cases. First, because you 

have got a systemwide policy that is being challenged, not an individual decision, but a systemwide policy, and because what you are 

looking at is the range of decisions and the consequences of these 

decisions, you need the class action device to be able to pursue 

these claims, for a couple of reasons, not to get too much into the 

weeds. 

But the way that these cases can—the important thing that 

these cases does is it opens up discovery for plaintiffs to really have 

a better understanding of how the policy is structuring these deciVerDate Nov 24 2008 09:24 Mar 08, 2012 Jkt 068273 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\68273.TXT SJUD1 PsN: CMORC
15 

sions and what awareness it had, as Wal-Mart had quite a great 

deal of awareness, of the consequences of these decisions, the kinds 

of discrimination that were going on. 

In an individual case, that kind of discovery would not be available to an individual plaintiff. And the threat of individual litigation, also, does not lead to self-monitoring by a company. 

One of, I think, the most important things about this Wal-Mart 

case is that after this suit was filed in 2001, Wal-Mart started 

changing it policies. It recognized that it was making bad choices, 

choices that, in fact, were hurting women, and it started changing 

its policies itself. 

That is one of the good consequences of litigation that you lose 

when you make it impossible to bring suits through this procedural 

technique as class actions. 

Chairman LEAHY. But we also hear and some would say that 

there is not a trend here in this Court, but we have held hearings 

on the Lilly Ledbetter sex discrimination case. We held hearings on 

Jack Rouse’s age discrimination case. 

In each of these, it seemed that five justices made it more difficult for victims of discrimination to hold their corporate employers 

accountable. 

Is there a threat going through this or am I reading too much 

into them? 

Ms. HART. I fear that you are not reading too much into it. I 

think that it is true that if you look at employment discrimination 

cases in the past few years, although many are quick to point out 

that businesses have won some and lost some, plaintiffs have won 

some and lost some, the general trend has been to interpret the 

substantive law to make it more difficult to bring the underlying 

claims. 

Wal-Mart was a procedural case. Again, nobody has ever reached 

the merits of these claims, but I think there is a fair cause for concern that because the very high procedural threshold the Court set 

seems at odds with the substantive legal standards that have 

preexisted this case, the Court may, in the future, interpret the 

substantive law similarly tightly. And so that this may very well 

be at another case in which the intent of the Congress that enacted 

Title 7 and that enacted the Civil Rights Act of 1991 is being ignored in these cramped interpretations of the substantive law. 

Chairman LEAHY. I have a lot more questions, but I run the 

clock on myself, too. 

So I will yield to Senator Grassley. 

Senator GRASSLEY. Thank you, Mr. Chairman. And thanks to 

each of you for your testimony. 

I am going to just ask two of the panel for answers to a couple 

of questions. I would like to have Mr. Pincus first and then Mr. Alt 

to provide your reaction to Professor Hart’s testimony, and I want 

you to be very specific. 

Mr. PINCUS. It seems to me, Senator Grassley, that a key part 

of Professor Hart’s testimony is where she says about the Wal-Mart 

case, and I am quoting, ‘‘It’s hard to tell precisely what the contours of the decision will turn out to be as it’s interpreted in other 

cases,’’ and, to me, that is a key question, as I mentioned in my 

statement, with all of these cases. 

16 

We just do not know how they are going to be interpreted. I 

think Wal-Mart is perceived by many as an extreme case because 

of the size of the class and the nature of the evidence relative to 

the large number of decision-makers that were involved, and I 

think there is just a real question about how it is going to play out 

as the lower courts get a hold of it. 

Senator GRASSLEY. Mr. Alt. 

Mr. ALT. I would build on Mr. Pincus’ statement and simply say 

I think part of the difficulty associated with determining what impact it will have is recognizing that it does not foreclose class actions against Wal-Mart. It simply foreclosed this single omnibus 

class action, if you will. 

And so you can continue to have class actions, perhaps better defined, in which you can raise these sorts of claims, you can bring 

in the sort of evidence that I think Professor Hart was talking 

about that might be necessary to establish the sorts of claims that 

plaintiffs were seeking to make. 

But in these particular cases, if it is brought, appropriately, for 

instance, under (b)(3), it permits Wal-Mart the opportunity to raise 

the sorts of defenses that you would expect in an employment discrimination case with regard to the particular damages. 

So in terms of that, I am not sure that I would endorse the doom 

and gloom. I think meritorious claims will still be able to go forward. 

Senator GRASSLEY. And in the same order for the same two panelists, I would like your reaction to Professor Cox’s testimony and 

I would ask you to be as specific as possible, as well. 

Mr. PINCUS. Again, I think it is important to separate legal analysis and public policy. As to legal analysis, I think Professor Cox 

and I have a disagreement, just as the majority on the Court and 

the dissenters did about the impact of the Stoneridge and Central 

Bank decisions on the particular issue before the Court there. 

But I do think that what the Court ruled in those cases was we 

are going to be very focused on defining who can be liable under 

this implied cause of action, and I think that was especially true, 

as Mr. Alt mentioned, after Congress rejected private aiding and 

abetting liability in 1994 and instead gave the SEC authority and 

then, again, in the Dodd-Frank bill, rejected arguments that there 

should be expanded private liability under Section 10(b) and instead further expanded from what it had done in 1994, the SEC’s 

power to both bring enforcement actions against aiders and abetters and, also, to obtain money to deposit fair funds accounts for 

the benefit of people who could prove injury. 

As to policy, I think we also have a disagreement about whether 

the law says that there is a private right of action for every wrong. 

I think it is quite clear that the law does not say that there is a 

private right of action for every wrong. 

And especially in the context of aiding and abetting, the courts 

have been very leery, both in the statutory context and in the common law context, to create those things because they recognize that 

once you move away from—once you say anyone who helps someone do something wrong, even thought that conduct is legal, we are 

going to hold them liable because they had a bad intent, their intent was to help the wrongdoer. 

17 

You are opening up private liability very broadly because that is 

an issue that can only be determined after trial. And so there is 

a very significant policy question about whether, especially in the 

class action context, expanding liability that broadly is a sensible 

thing to do rather than make sure you have cops on the beat in 

terms of expanding the SEC’s enforcement authority, as Congress 

did. 

Senator GRASSLEY. Mr. Alt. 

Mr. ALT. Just briefly. I would say I think it goes, in part, to sort 

of the understanding of the proper function, my disagreement of 

the Court. 

I think the Court was attempting to adhere to what it is that 

Congress had told them to do. They believed that, in fact, Congress 

considered the question of expanding liability, expressly chose not 

to do it, thought that the best enforcement agency was the SEC, 

and there are good reasons to think that. 

There is ample literature that suggests that securities class action litigation actually causes as much harm as good, that it actually constitutes, in large measure, a wealth transfer from one set 

of shareholders to another, with the true beneficiary being those 

who create the transaction costs in the form of the lawyers. 

And with regard to his evidence that only 17 percent of settlements studied had any sort of SEC involvement, well, you can go 

back all the way to Judge Friendly, who talked about the problem 

of blackmail settlements; that, quite, frankly, in a lot of class action 

litigation, the costs associated with simply complying with discovery are so high that it is more cost-effective for companies to 

settle. 

That does not necessarily mean that in those cases, there is even 

particularized wrongdoing. So that would be—I will wrap it up 

there. 

Senator GRASSLEY. Thank you, Mr. Chairman. 

Chairman LEAHY. Thank you. And the vote has started, but Senator Feinstein and I will stay here and we will try to work our way 

around it. 

Senator Feinstein. 

Senator FEINSTEIN. Thank you very much. I am going to be very 

quick. 

Professor Hart, because you speak sort of in a layman’s language, which I like—I am a non-lawyer—what exactly does WalMart say on two things: what a maximum sizes of a class should 

be and, No. 2, what does it do to individual supervisorial choice 

with respect to promotion? 

Ms. HART. The Wal-Mart decision does not speak clearly to the 

question of what the maximum size of a case will be. There is 

much more in the Wal-Mart decision about what the five-justice 

majority disapproves of in this case than about what they would 

approve of in future cases. 

I think some areas for concern include that Justice Scalia refers 

to the idea that perhaps a class would be limited to a single supervisor. That, again, ignores the fact that many of the kinds of policies being challenged in a case like Wal-Mart are systematic companywide policies, not the decisions of a single supervisor. 

Under the class action rule—— 

18 

Senator FEINSTEIN. Stop, stop, stop for a second. So what you are 

saying is—because this is where I am unclear. The company has 

a policy and a supervisor exercises that policy with respect to promotion. 

How much freedom under this case does the supervisor have and 

what level of rights with respect to seniority and that kind of thing, 

if there are any rights, does an employee have? 

Ms. HART. Again, it will depend very much on how the company’s 

policy is structured. In the context of the Wal-Mart case, what the 

plaintiffs alleged—in this way, I think Wal-Mart is unique. It may 

not be the only company like this, but certainly the evidence of discrimination at Wal-Mart was significant. The evidence of gender 

disparities were really startling in terms of the very large number 

of hourly employees who were women, and then the absolutely 

flipped very small number of Wal-Mart managers who were 

women. 

And the way that the decisionmaking system was structured to 

both give individual managers discretion to just pick their friends 

and, at the same time, create a series of corporate standards and 

a corporate culture that discouraged the advancement of women 

through a variety of policy decisions that were highlighted in the 

complaint. 

Well, when the compliant was filed, for example, one of the 

things that Wal-Mart used to have as a policy was a requirement 

that to be a store manager, you had to be willing to relocate. 

It is obvious to a layperson, I think, why that, in our society, discriminates quite significantly against women as compared to men. 

Like the refusal, which, again, Wal-Mart has actually fixed in 

the wake of this litigation, but the refusal to post—Ms. Dukes 

talked about the absence of any posting of management opportunities, which meant that it was a tap-on-the-shoulder system, and 

there is lots of evidence that tends to favor the people who look like 

the people in charge. 

So if you have men in charge, you are going to end up with men 

being tapped for promotions. And, again, there is lots of evidence 

of how that works. 

So these choices that Wal-Mart was making about how to structure its employment policies were choices they were making even 

at the time that they saw the results that they were having, and, 

again, there is lots of evidence that Wal-Mart, in fact, had the information about the kinds of gender disparities that were happening all over the country, in all 41 regions that Wal-Mart operated, that this was not a random thing, and, yet, did not respond 

in any way, again, until this litigation was filed. 

And so the benefit of being able to challenge this kind of employment practice through class action litigation is that it does force accountability. Even if the litigation does not proceed, as right now, 

it is going to have to change its form. It led to change just by bring 

brought and that is so important not to lose. 

Senator FEINSTEIN. Thank you. 

Ms. HART. Thank you. 

Senator FEINSTEIN. Thank you very much, Mr. Chairman. That 

was really helpful. Thank you. 

19 

Chairman LEAHY. Thank you. Even those of us who are lawyers 

appreciate it in the—— 

Senator FEINSTEIN. In the plain talk. 

Chairman LEAHY. Yes. I am going to leave for the vote, but Senator Whitehouse, as he has so many other times for me, is going 

to take over the chair, and I will be back. Thank you. Thank you 

all. 

Ms. HART. Thank you, Chairman. 

Senator WHITEHOUSE. [presiding.] Sort of like a flying change in 

a hockey game. You have to change while the puck is still active. 

[Laughter.] 

Senator WHITEHOUSE. Well, I am delighted to have all of you 

here. And reading the recent series of Supreme Court opinions, actually going back a few years now, reminds me of my law school 

days, when I was studying for a UCC exam. And as those of you 

who have had the misfortune of either going to law school or studying the Uniform Commercial Code know, it is about the most tedious and boring possible ordeal. 

So I am plowing my way through this immense book and somebody who was a year ahead of me and immensely more knowledgeable said, ‘‘You don’t need to worry too much about that. It’s actually a lot simpler than it appears. Indeed, the entire UCC can be 

summarized in two words.’’ 

I badly wanted to know what that was. So I asked, ‘‘Well, what 

are the two words? ’’ And the fellow looked down at me in my little 

study carrel and said, ‘‘Bank wins.’’ 

[Laughter.] 

Senator WHITEHOUSE. And it is starting to seem a little bit as 

if a similar two-word prophecy could be applied to the United 

States Supreme Court’s decisions, and that would be ‘‘corporation 

wins.’’ 

I have two questions that I would like to ask across the panel. 

The one is, at some point in human behavior, when an action results in a certain thing time after time after time after time after 

time, it becomes reasonable to presume that there is no longer a 

random effect happening and that there is, indeed, some 

intentionality to what is going on. 

And so my first question would be to each of you. Do you think 

we have reached that point at this stage? 

Let me start with Ms. Dukes. 

Ms. DUKES. Let me get a little clarity of your question. 

Senator WHITEHOUSE. Could you turn your microphone on? 

Ms. DUKES. Let me get a little clarity as to the question that you 

asked. Would you make it just a little bit more clear for me, if you 

do not mind? 

Senator WHITEHOUSE. No. I was just trying to determine if you 

think that the—if you were to plot the Supreme Court decisions on 

the ‘‘corporation wins’’ graph, are there enough of them that come 

down there that you think it has independent significance, it is beyond just a random variation? 

There are going to be times when there will be three or four decisions in a row that come down in favor of corporate versus individual interests, just in the ordinary nature of things, just in the 

ordinary variation of life and the sort of random nature of things. 

20 

But after a while, it becomes increasingly statistically improbable 

that what is happening is random as the events pile up and pile 

up and pile up, and that is true whether you are talking about any 

area of human endeavor. 

It is even true if you are talking about non-human events. You 

start to look for a cause once things no longer fit a pattern. And 

I am wondering if it is your observation—if you don’t care to comment on it, I can happily go to another witness. 

Are we at the point where you think it is reasonable for people 

to conclude that there is more going on than a random selection or 

that, in fact, there is a purpose or an intention in the Supreme 

Court’s actions in these repeated decisions that favor the interests 

of corporations? 

Ms. DUKES. Thank you for the clarity of that. I am beginning to 

get the impression, and I believe that many other Americans feel 

the same way, that the Supreme Court, as the makeup is now, that 

it is quite conservative in its opinion. 

I feel that the Supreme Court, really concerning those five votes, 

that we have that dismantled the Wal-Mart v. Dukes case, they are 

definitely leaning on the side of the corporation. It is beginning to 

be obvious that if you can get your case before this sitting court, 

the chances are that the more liberal aspect will not survive. 

Senator WHITEHOUSE. Professor Pincus, your view? 

Mr. PINCUS. I do not think so, Senator. I think if you look at this 

term’s decisions, I think it is really a draw, nine to nine. 

Senator WHITEHOUSE. Well, go beyond the term. 

Mr. PINCUS. I think if you look at last terms’s decisions, there 

were some very significant cases. I think they are actually—if you 

look specifically at cases where individuals are seeking damages 

from corporations, the individuals actually won more than they 

lost. 

So I do not think so. And Justice Breyer was interviewed at the 

beginning of this term in the fall and he was asked this very question and he said, ‘‘I really don’t think so.’’ He said he had gone back 

and looked at the cases from recent terms and compared them to 

prior terms and really did not see a difference in the percentage 

of cases decided either way. 

Senator WHITEHOUSE. Professor Hart, your view? 

Ms. HART. I think it is a little bit more complicated than ‘‘corporation wins all the time.’’ Obviously, there are lots of examples 

where corporations lose cases. 

I do think that if you look at the trend over the past few years, 

it is very clear that the majority on the Court—and it is consistently the same majority—is taking a very restrictive view about 

what it thinks—what kinds of cases it thinks should be permitted 

to go into the Court. 

And I think that is the most disturbing thing, that procedural 

barriers are being set up that were not set up by the rules, were 

not set up by statute, that are being created as a policy judgment 

by this majority on the Court that limit the ability of people to 

bring their claims into court, and that really changes our legal system in ways that whether the corporation wins or loses in any 

given case, people are not being allowed to bring their cases forward, and that is a troubling trend. 

21 

Senator WHITEHOUSE. Professor Alt. 

Mr. ALT. I do not think that the facts support that particular 

trend, and, in fact, if you take a look, there is a number of key 

losses for businesses in the last term, in the last several terms. 

If you take a look, I think the Court is all over the map on preemption cases. It was all over the map this term in preemption 

cases. And if you take a look, as well, to make that sort of claim 

and to sort of smear, ‘‘it is just the Roberts court,’’ you have to ignore the fact that a number of these pro-corporation cases involved 

super-majorities—they involved decisions written by the most liberal justices on the Court. 

Are we really to believe that there—— 

Senator WHITEHOUSE. My time has expired. So let me jump to 

Professor Cox to give him a chance. 

Very briefly, if you could, Professor. I am sorry. 

Mr. COX. In my narrow world of securities laws, I agree with 

your statement, Senator. And I will tell you, the shrill rhetoric, 

where it used to be limited to the amicus briefs that they file over 

and over again, the Chamber of Commerce filed, is now very well 

found in cases like the Bank of Australia case, and, also, in 

Stoneridge, where the message is aggregate litigation is destroying 

America and destroying America’s competitiveness, I think that is 

the theme that is coming through, the Supreme Court stating we 

do not like these suits. 

Senator WHITEHOUSE. All right. My time has expired. 

Senator Franken is here, and I yield to the good Senator from 

Minnesota. 

Senator FRANKEN. Thank you, Mr. Chairman. I ran back to vote 

and ran back as fast as I could. So excuse me if I am a little out 

of breath. 

First of all, as far as Mr. Alt’s testimony, let me just say that 

I have always been a big fan of sarcasm. I have used it a lot myself. 

[Laughter.] 

Mr. ALT. And I have appreciated your sarcasm in the past. 

Senator FRANKEN. Thank you. 

[Laughter.] 

Senator FRANKEN. But it does have its place and I am learning 

bit by bit exactly what that is as I go. So while I have some sympathy for you, I think you have been wise to tamp it down since 

you have been—and I do not mean this sarcastically. 

[Laughter.] 

Senator FRANKEN. Mr. Pincus, however, in a recent letter to the 

New York Times, you disparage, sarcastically, the class action lawyers who represent consumers, like the Concepcion, and I was really wondering why you did that, given that the average salary for 

partners at Mayer Brown is over $1 million. I do not think you are 

in the most credible position to make that kind of sarcastic critique. 

Professor Hart, I have introduced the Arbitration Fairness Act, 

which would bar the use of mandatory arbitration clauses in consumer and employment contracts. 

22 

Mr. Pincus has testified that the Court’s decision in AT&T was 

correctly decided because it is in line with prior decisions. Four 

other justices might disagree. 

Now, while it is true that the case is in line with decisions dating 

back to the early 1990’s, the legislative history of the Federal Arbitration Act enacted in 1925, I think, tells another story. 

As the dissent in the 2001 Circuit City case points out, the decisions expanding the reach of the FAA ignore clear legislative intent, which is that this was meant to be business to business. 

So, in fact, the Arbitration Fairness Act would merely restore the 

original legislative intent of the FAA. 

These are all technical arguments about legislative history and 

precedent and court rulings and what not, but let us put all that 

aside for a moment and let us set this up for anyone listening 

today so they can get a handle on what AT&T really did in this 

case. 

First, they did something that was just wrong. They advertised 

something as free, a free phone, and it was not. California law says 

you cannot advertise something as free and make people pay a 

sales tax on it unless you say so. 

So they bought their cell phone, advertised as free. Then they get a $30 charge on it in their bill. They were not asked to pay the 

sales tax when they got the phone for free, that they thought they 

were getting for free. 

Yet, now they have devised a scheme to prevent people from— 

I mean, no one is going to spend time getting 30 bucks back. The 

only way to do this is to do it through a class action suit. 

What this does, what this decision does is incentivize corpora- tions like AT&T to rip people off $30 at a time, hundreds of thousands of people—so they get their 100,000 people, that is $3 million, and maybe four people will try to get their money back, that 

is 120 bucks. 

Are they not just incentivized to rip off customers? Is that not 

what is going on here? 

Ms. HART. Is that a question to me or just—— 

Senator FRANKEN. Yes. That is a question to you. 

Ms. HART. I think that decisions like AT&T definitely—they 

make it easier for businesses to set up deals like this and know 

that they really will not—as you said, only four out of however 

many customers is going to actually try to get their money back. 

So they are not going to be responsible for their conduct. And I 

think it is particularly disturbing in this case—I just want to comment on something you said, which is the intent of the Congress 

in enacting the FAA. 

The decision in AT&T, the Court focused on the idea that their 

interpretation was necessary because of what Congress meant in 

1925. Well, in 1925, these kinds of contracts, these adhesion contracts in which millions of people are buying a free phone did not 

exist. 

This is a different world. And, similarly, the kinds of employment 

discrimination claims that were at issue in Circuit City did not 

exist in 1925. The world has changed and the idea that the 1925 

legislature meant to be binding employees and consumers is nonsense. 

23 

And so I think that this is one of the areas where we are really 

seeing a misuse of this idea of Congressional intent in order to insulate from liability companies that engage in wrongdoing, which 

is why a legislative response really is needed to address this problem. 

Senator FRANKEN. Thank you. I have that legislative response. I 

have run out of time, Mr. Chairman. 

Senator WHITEHOUSE. We will have one other round while it is, 

I guess, just the two of us, if you would like, because I do have another question that I would like to ask. 

Senator FRANKEN. Sure. 

Senator WHITEHOUSE. Which has to do with the fact that in a 

number of these cases, the interest or the institution that is on the 

other side from the corporate interest is the jury and the access of 

Americans to the jury to redress their grievances. And over and 

over again, as Professor Hart has pointed out, what have been 

erected are procedural obstacles, a little bit here, a little bit there, 

but always making it more difficult for Americans to get in front 

of a jury, particularly where, I should say, a big corporation is the 

defendant. 

And I worry about that because my view is that the founders put 

the jury in the Constitution and in the Bill of Rights in three separate places for a reason. It was part of the structure of government 

that they were erecting. 

I believe they understood that, as William Blackstone had explained, ‘‘the most powerful individual in the state will be cautious 

of committing any flagrant invasion of another’s right when he 

knows that the fact of his oppression must be examined and decided by 12 indifferent men.’’ 

Now, the term ‘‘indifferent’’ has achieved a slightly different 

meaning since then and it is men and women now, but the point 

is clear that the jury and the fact that the powerful may have to 

face a jury is an important part of our constitutional structure. 

It is a particularly important part where money has such sway 

in the executive branch of government, where money has such 

sway in the legislative branch of government. But try bribing a 

juror. Tampering with a jury is a crime. It is protected in the 

American system of government as our last chance for a reason. 

De Tocqueville observed, ‘‘The jury is, before everything, a political institution. One ought to consider it as a mode of the sovereignty of the people.’’ 

And in that context, I think there is an additional constitutional 

and structural worry in a country that prides itself on its operation 

of government when it is the jury that is being drawn further and 

further away from the ordinary American in favor more of the most 

powerful individuals in the state. 

And I wonder if any of you have thoughts on the role of the jury. 

Do you believe that the jury was part of the plan of the founders 

as they set up our institutions of government, that it was not just 

judicial, executive and legislative branches, but actually having a 

jury in there was part of the plan, as Blackstone and De 

Tocqueville have suggested? 

Professor Cox. 

24 

Mr. Cox. I think there is a lot of history that one of the benefits 

of a jury can be quite the opposite of what many would here think, 

and that is kind of a temporizing effect on overreaching by both aggressive plaintiffs, but, also, by the government. 

So that there is a rich history of that in the literature about the 

temporizing effect of a jury. 

Another thing is the idea of community standards, which are implicit in so much of the law, whether it be civil law or criminal law. 

Reasonable person; what is a reasonable person? 

Again, in my own narrow part of the world, which is securities 

law, we find that the roles of juries historically have been taken 

over by the trial judge. So we do not have the jury being involved 

in a lot of crucial factual determinations; not just questions about 

whether something is material, but whether there has been truth 

on the market, whether there have been sufficiently cautionary 

statements, whether the complaint alleged a strong inference. It 

goes on ad infinitum. 

That these are now no longer viewed—while they are questions 

of fact, they are entirely appropriate for a question for the judge, 

and that gets into something with the opening statement by the 

Chairman and that is the question about are we a country ruled 

by law or are we ruled by individual biases, and the jury system 

is designed to make it more toward the law side and less by the 

individual standard side. 

Senator WHITEHOUSE. Echoing what you have said, if I remember my De Tocqueville correctly, the chapter in which the quote 

about the jury being a political institution and a mode of the sovereignty of the people occurs is the chapter headed something like 

‘‘On Tempering the Tyranny of the Majority.’’ So I think it really 

is built into that. 

My time is expiring. So I will yield back to Senator Franken. 

Senator FRANKEN. Thank you. 

In Mr. Pincus’ testimony, he states that ‘‘Businesses that engage 

in wrongdoing will remain fully accountable for their actions because government enforcement, not private litigation, deters corporate wrongdoing.’’ 

Professor Cox, I want to ask you about this. As an example, he 

mentions that the Wal-Mart litigants are now filing with the 

EEOC. The last time I checked, the EEOC had a backlog of 86,000 

private sector charges and the EEOC has stated that, quote, ‘‘The 

private right of access to the judicial forum to adjudicate claims is 

an essential part of the statutory enforcement scheme.’’ 

And relative to the AT&T case, a GAO report found that the 

FCC does not regulate carriers’ contract terms. It has few rules 

that address services consumers receive from wireless phone carriers. It conducts little monitoring of consumer complaints and does 

not enforce its billing rules for wireless carriers. 

Professor Cox, what is your understanding of the role that suits 

by American citizens play in our civil justice system? Are they redundant because there are already government enforcement mechanisms? 

Mr. COX. They are hardly redundant. They are necessary. This 

has been something that has been recognized repeatedly by the 

25 

courts, particularly the Supreme Court. We have found that Congress has tightened up the ability of private litigants. 

And so whatever Judge Friendly may have said 5 decades ago no 

longer applies after the PSLRA. The idea of the spurious strike 

suits, I think, died more than a decade ago. 

So we do need private litigation. We do not fund our government 

regulators at the level they need to be, and there is a lot of institutional creak. Again, our own studies and the studies of others have 

shown the importance of private litigation. 

And you find—if I may just go into this just one moment. So we 

have studied the parallel. What are the heuristics of the case that 

is brought by the SEC? And these are all published studies. 

We find that the SEC systematically goes after smaller capital 

firms with smaller losses, experiencing financial distress, than we 

find with private litigants. 

So those studies are published, they are out there. The SEC 

picks on the weaklings, not on the strong. So we need the private 

litigants, particularly in the securities area, and I have no reason 

to believe that it would be any different in employment areas, consumer areas, et cetera. 

Private litigation is a hallmark for providing access to justice in 

America and that is a wonderful expression and we should all get 

behind it. 

Senator FRANKEN. Thank you. I do not have much time. So, Mr. 

Pincus, just a quick question. 

I know that you said that AT&T has a very friendly, consumerfriendly and fair arbitration system that has been said to do that. 

How long would it have taken the Concepcions to go through the 

process and get their 30 bucks back? 

Mr. PINCUS. It could take them a matter of months to do that. 

Senator FRANKEN. Matter of months. 

Mr. PINCUS. Yes. Much quicker than the judicial system. 

Senator FRANKEN. So this would be a couple that would, for $30, 

go through a couple of months. 

Mr. PINCUS. All it takes, Senator, is there is a form on the 

Website. You make a complaint. The record—because the economic 

disincentives for AT&T, because it has to pay a very large bonus 

if the case is litigated and loses, $10,000 minimum plus double attorney’s fees, AT&T—— 

Senator FRANKEN. No, they do not—if they say we will give you 

your 30 bucks back, they do not have to pay the $10,000. Right? 

Mr. PINCUS. No. But if the case—if they refuse to do it and the 

case—— 

Senator FRANKEN. I know, but they are not going to refuse—— 

Mr. PINCUS. If they wrongfully refuse—— 

Senator FRANKEN [continuing.] To do it and pay $10,000. They 

are going to give the $30 back. 

Mr. PINCUS. Exactly. Exactly, Senator, and that is why this is a 

perfect system, as the lower courts found in this very case. As the 

district court in the ninth circuit said—— 

Senator FRANKEN. All right. But when you say—— 

Mr. PINCUS [continuing.] This is a perfect system for getting—for 

compensating—— 

Senator FRANKEN. But they would get their 30—— 

26 

Mr. PINCUS.—anyone who complains. 

Senator FRANKEN. But they would get their 30 bucks back. 

Mr. PINCUS. If 10,000 people complain, 10,000 people would get their $30 back. 

Senator FRANKEN. So you would get your 30 bucks back, is that 

what you are saying, after, what, a month or two or three? 

Mr. PINCUS. I think you would file a form and it could take as 

quickly as a week. It depends on the—— 

Senator FRANKEN. You could get your $30 back as quickly as a 

week. 

Mr. PINCUS. You would get your $30 back and the record shows 

you would also get reasonable fees. So they would get—— 

Senator FRANKEN. The Concepcions would have gotten their 30 

bucks back in a number of weeks. 

Mr. PINCUS. Yes. 

Senator FRANKEN. All right. Well, then, why—then I do not understand that, because you said in your letter that they were within their rights to charge the 30 bucks. 

Mr. PINCUS. Well, if the Concepcions—— 

Senator FRANKEN. So why would they get their 30 bucks back? 

You just testified to the Senate that they would get their 30 bucks 

back. Why would they get their 30 bucks back if you wrote the New 

York Times that AT&T had the right to charge them 30 bucks? 

Mr. PINCUS. Well, there is—— 

Senator FRANKEN. I mean, I do not understand that. It seems to 

contradict what you said in your letter. What you testify here in 

the Senate contradicts exactly what you wrote in the New York 

Times. Let me see what you wrote. You wrote, ‘‘It’s my understanding 

that if this charge was, indeed, a sales tax, California law allows 

merchants to pass the cost of sales tax on to consumers only’’—all 

right. 

So what I am saying is that you are contradicting yourself. You 

are saying that they—this was a sales tax. They had the right to 

do this. But you are saying that they would have paid the $30 

back. Why? 

Mr. PINCUS. Well—— 

Senator FRANKEN. Listen, I have run out of time. I am sorry. 

Mr. PINCUS. Can I answer, Senator? 

Senator WHITEHOUSE. Yes. 

Mr. PINCUS. I apologize for using the example as the way the arbitration system works. AT&T settles a lot of—— 

Senator FRANKEN. I asked a direct question and you said that 

they would get their 30 bucks back. 

Mr. PINCUS. Yes. And the reason for that is AT&T settles most 

claims that are brought in the arbitration—in the—most complaints that consumers bring, AT&T tries to work out a settlement, 

because its goal is to have happy customers. 

Senator FRANKEN. I am sorry, but I have to go vote. I apologize. 

Mr. PINCUS. May I finish my answer? 

Senator FRANKEN. You can finish your answer to the chairman. 

Mr. PINCUS. Thank you. 

Senator WHITEHOUSE. Although I have to go vote, as well. So I 

am going to give you about 30 seconds. 

27 

Mr. PINCUS. AT&T settles a lot of cases that it believes, if it litigated, would not have merit because, A, it wants to have good customer relations, and, B, it wants to save its own cost of litigating 

settlements. 

So most cases are settled. I do not know exactly what would have 

happened. 

I misspoke by saying that the Concepcions would definitely get 

their money back. But the way the system works is that it gives 

AT&T a huge incentive to settle claims in order to avoid the risk 

that it will have to pay a lot of money later, and that is why the 

lower courts in this case found, both the district court and the 

court of appeals, that injured parties were much more likely to get 

compensated under AT&T’s arbitration system than they would in 

a class action. 

Senator WHITEHOUSE. If you would like to supplement that answer, the record of the hearing will stay open so that you may add 

more. 

I am sorry to cut you off, but we really are up against a relatively hard deadline here. 

I want to close by saying that I think it is regrettable that there 

appears to be this steady addition of troubles, toils and snares by 

the Supreme Court on Americans’ road to a jury, which is a, to me, 

baseline constitutional American institution of government. 

It is clearly something that is consistent with the interests of big 

corporations who wield disproportionate influence in other 

branches of government to stay away from juries, which is the one 

institution of government with which they may not tamper. 

And so there is clearly a strong institutional incentive there, and 

you have also seen very strong institutional behavior from the big 

multinational corporations and others trying to deprecate as much 

as they can and make Americans believe that the jury system is 

not part of their constitutional legacy, but is instead a drag on the 

economy and a nuisance and a place where runaway juries entertain frivolous lawsuits. 

Indeed, every American who hears the word ‘‘jury’’ and has the 

phrase ‘‘runaway jury’’ jump into their mind, every American who 

hears the word ‘‘lawsuit’’ and has the phrase ‘‘frivolous lawsuit’’ 

jump into their mind has been the successful subject of a long campaign of indoctrination about this and of public communication. 

So it is happening out there and I think when the Supreme 

Court is making decisions that are consistent with that longstanding practice and pattern, it is worth our attention and I applaud Chairman Leahy for holding this hearing. 

As I said, anybody who wishes to add any further information to 

the hearing has a week before we close it. 

But without anything further, we will be adjourned. Thank you 

all very much. I appreciate it. 

[Whereupon, at 11:44 a.m, the hearing was adjourned.] 

[Questions and answers and submissions for the record follows.] 

28 


68273.001
29 


68273.002
30 


68273.003
31 


68273.004
32 


68273.005
33 


68273.006
34 


68273.007
35 


68273.008
36 


68273.009
37 


68273.010
38 


68273.011
39 


68273.012
40 


68273.013
41 


68273.014
42 


68273.015
43 


68273.016
44 


68273.017
45 


68273.018
46 


68273.019
47 


68273.020
48 


68273.021
49 


68273.022
50 


68273.023
51 


68273.024
52 


68273.025
53 


68273.026
54 


68273.027
55 


68273.028
56 


68273.029
57 


68273.030
58 


68273.031
59 


68273.032
60 


68273.033
61 


68273.034
62 


68273.035
63 


68273.036
64 


68273.037
65 


68273.038
66 


68273.039
67 


68273.040
68 


68273.041
69 


68273.042
70 


68273.043
71 


68273.044
72 


68273.045
73 


68273.046
74 


68273.047
75 


68273.048
76 


68273.049
77 


68273.050
78 


68273.051
79 


68273.052
80 


68273.053
81 


68273.054
82 


68273.055
83 


68273.056
84 


68273.057
85 


68273.058
86 


68273.059
87 


68273.060
88 


68273.061
89 


68273.062
90 


68273.063
91 


68273.064
92 


68273.065
93 


68273.066
94 


68273.067
95 


68273.068
96 


68273.069
97 


68273.070
98 


68273.071
99 


68273.072
100 


68273.073
101 


68273.074
102 


68273.075
103 


68273.076
104 


68273.077
105 


68273.078
106 


68273.079
107 


68273.080
108 


68273.081
109 


68273.082
110 


68273.083
111 


68273.084
112 


68273.085
113 


68273.086
114 


68273.087
115 


68273.088
116 


68273.089
117 


68273.090
118 


68273.091
119 


68273.092
120 


68273.093
121 


68273.094
122 


68273.095
123 


68273.096
124 


68273.097
125 


68273.098
126 


68273.099
127 


68273.100
128 


68273.101
129 


68273.102
130 


68273.103
131 


68273.104
132 


68273.105
133 


68273.106
134 


68273.107
135 


68273.108
136 


68273.109
137 


68273.110
138 


68273.111
139 


68273.112
140 


68273.113
141 


68273.114
142 


68273.115
143 


68273.116
144 


68273.117
145 


68273.118
146 


68273.119
147 


68273.120
148 


68273.121
149 


68273.122
150 


68273.123
151 


68273.124
152 


68273.125
153 


68273.126
154 


68273.127
155 


68273.128
156 


68273.129
157 


68273.130
158 


68273.131
159 


68273.132
160 


68273.133
161 


68273.134
162 


68273.135
163 


68273.136
164 


68273.137
165 


68273.138
166 


68273.139
167 


68273.140
168 

Æ 


68273.141