NPR's Totenberg Parrots Lawyer's Claim Wal-Mart Arguing It's 'Too Big to Sue'

Greedy, deep-pocketed Wal-Mart went to the Supreme Court yesterday to argue it's "too big to sue."

That's the sort of rhetoric one might expect from Brad Seligman, one of the attorneys representing Christine Kwapnowski and a handful of other women who are suing Wal-Mart on the claim of gender discrimination.

Appearing with Kwapnowski on Tuesday's CBS "Early Show," Seligman used those words to deride Wal-Mart's argument about why the Supreme Court should not let his and numerous other discrimination suits across the country to be consolidated into a single class action case.

But yesterday some ostensibly objective journalists practically parroted the talking point as though it accurately reflected Wal-Mart's legal argument in the case Wal-Mart Stores Inc. v. Betty Dukes, et al.

Take Steve Inskeep and Nina Totenberg of NPR on yesterday's "Morning Edition" (emphasis mine):

STEVE INSKEEP, host: And I'm Steve Inskeep. Good morning.


Today, the United States Supreme Court takes on the biggest employment discrimination case in history. It involves one of the biggest retailers in history - Wal-Mart. Lawyers challenging the company say they represent one and a half million of Wal-Mart's current and former female workers. The justices will decide if Wal-Mart is too big to be sued in a single class action case. Here's NPR legal affairs correspondent Nina Totenberg.


NINA TOTENBERG: Everything about this case is too big, says Wal-Mart's lawyer, Ted Boutrous.


Mr. TED BOUTROUS (Attorney): They have brought a case that implicates 3,400 stores around the country, women at all different levels of the store, from the store managers to the entry level positions.


TOTENBERG: But lawyer Joseph Sellers, representing the women, counters that class actions were created to deal efficiently with large numbers of similar claims.


Mr. JOSEPH SELLERS (Attorney): The majority of the women in this class have held five jobs. These are cookie-cutter type jobs. So the fact that there may be multiple stores doesn't mean the jobs are any different.

But the "award-winning legal affairs correspondent" is twisting Boutrous's argument.

It's not that Wal-Mart is too big to be sued in a class action case, it's that discrimination claims are so incident- and store-specific that a class action case is neither logical nor conducive to the interests of justice.

As Boutrous himself argued much further in Totenberg's report (emphasis mine):


The plaintiffs swung for the fences here, and instead of seeking the normal kind of class action where you would bring it against a particular decision-maker or entity, they tried to come up with a theory that would allow them to ensnare major companies in these huge class actions that might cause them to be able to get a quick settlement.

Indeed, in the "question presented" document for the case available at the Supreme Court website, the Court notes that the 9th Circuit's "sharply divided 6-5 decision ... conflicts with many decisions of this Court and other circuits" when it "affirmed the certification of the largest employment class action in history."

If the Supreme Court doesn't reverse that decision, the class will include " every woman employed for any period of time over the past decade, in any of Wal-Mart's approximately 3,400 separately managed stores, 41 regions, and 400 districts, and who held positions in any of approximately 53 departments and 170 different job classifications," according to the court document.

What's more, as Totenberg admitted in her story, "one of the dissenting justices [sic], Sandra Ikuta, declar[ed]: Never before has such a low bar been set for certifying such a gargantuan class."

Despite these concessions, Totenberg closed her report with a parting soundbite by an attorney for the women rehashing his "too big to sue" meme followed by Totenberg suggesting the cards were unfairly stacked in favor of Wal-Mart:

Mr. SELLERS: There is no large company exception to the civil rights laws. So for Wal-Mart to contend that somehow this case is too big and that therefore it can't be pursued is to try to carve out an exception for it and other large companies from coverage under the civil rights laws.


TOTENBERG: It may be difficult, however, to sell that view to a Supreme Court majority that's widely viewed as business-friendly.


Nina Totenberg, NPR News, Washington.

Business Coverage Economy Judiciary Morning Edition NPR Government & Press Ted Boutrous Christine Kwapnowski Betty Marks Steve Inskeep