SupremeCourt.jpgBy Gerald L. Maatman, Jr. and Laura Maechtlen

Our colleagues “on the other side of the table” – the plaintiffs’ class action bar who specialize in workplace class actions – are nothing if not resourceful, creative, and capable of outside-the-box thinking when it comes to prosecution of their litigation claims. As we predicted here, the plaintiffs’ class action bar is increasingly focused on re-booting their class action stratagems in the wake of Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011).

One angle on their evolving approach played out in the media this week. We call it “attack by a thousand cuts.” By this tactic, the plaintiffs’ bar unbundles their array of claimants by filing multiple EEOC charges in different regions of the country. Counsel for plaintiffs in the Dukes litigation announced this past week that more than 500 current and former female Wal-Mart employees who were part of the now decertified Dukes class action have lodged sex discrimination charges against the company with the U.S Equal Employment Opportunity Commission. Claims of individual putative class members were tolled while the class action was pending for the equal pay and management promotion claims potentially covered by the class action. By court order, January 27, 2012 was the deadline for women in Alabama, Arkansas, Georgia, Mississippi, and North Carolina to pursue administrative claims before the EEOC. Women in all other states have until May 25, 2012 to file their EEOC claims.

The “attack by a thousand cuts” strategy is multi-faceted. The plaintiffs’ bar is seemingly trying to do various things, including: (i) attracting media attention on their clients’ claims, thereby ratcheting up their pressure on the employer; (ii) foisting significant litigation costs on the employer, which is necessitated by having to respond to all of the EEOC charges; (iii) laying the procedural groundwork for assertion of multiple lawsuits – either as single plaintiff actions, multiple-plaintiff actions, or groupings of class actions – once the EEOC’s administrative charge filing requirements are satisfied; and (iv) using the prospect of EEOC involvement – either by way of a systemic investigation or by the prospect of the EEOC intervening in the private party litigation (or worse still, by the EEOC launching its own pattern or practice litigation) – to increase its litigation risks. Indeed, in announcing the EEOC filings, plaintiffs’ counsel asserted that the 500 EEOC charges filed thus far are just the “down-payment” and they “expect to file thousands of additional charges by the May 25, 2012, deadline.”

Employers encountering this tactic face a range of litigation issues. At the very least, it poses the prospect of a “whipsaw” situation whereby the employer faces both private plaintiff claims as well as EEOC litigation. As evidenced by the EEOC’s record number of systemic investigations and class-like federal court filings spanning the last five years as discussed in our most recent posts here and here, the EEOC’s public strategy has been to further its agenda through prosecution of large-scale cases. Accordingly, the recent filings made by putative plaintiffs in Dukes may further invigorate the already motivated agency to investigate and pursue more systemic discrimination claims. Notably, the EEOC does not have to satisfy Rule 23 requirements in a pattern or practice lawsuit because it is not acting as representative of class, but rather, is suing in its own name to redress a discriminatory practice. Likewise, so long as one employee has filed an administrative charge of discrimination, the EEOC may pursue relief on behalf of other similarly-situated workers.  This may well be one “work around” the SCOTUS ruling in Dukes sought by the plaintiffs’ class action bar.