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2004AP2926 In Re: Wal-Mart Employee Litigation

By: dmc-admin//February 27, 2006//

2004AP2926 In Re: Wal-Mart Employee Litigation

By: dmc-admin//February 27, 2006//

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“As the trial court recognized, the major thing that makes the proposed class unmanageable is that the statistics upon which the class must rely were generated in the first instance by the proposed class-members. As we have seen, plaintiffs contend that members of the proposed class were denied promised compensation for working when they were entitled to a break—either to eat or for rest. But whether an employee was on a break or working through, either wholly or partially, the break to which he or she was entitled was, before February of 2001, determined by that employee’s own time-clock entries.

“Wal-Mart contends, and the plaintiffs do not dispute, that not all employees were scrupulously accurate in clocking-in or clocking-out. Indeed, Wal-Mart had a time-adjustment process that permitted employees to seek to correct their clock-out/clock-in entries, and submitted to the trial court what Wal-Mart represents is a random sample of more than 125 Wisconsin Wal-Mart employees who indicated that they used the time-adjustment process in connection with their time-clock entries, including reporting of breaks….

“Indeed, the plaintiffs concede that Wal-Mart could challenge both the ‘credibility and weight of the evidence.’ As Judge Wells cogently recognized, this would require not only the examination of each and every member of the proposed class, but, also, their co-workers and supervisors, and, in some or many cases, their friends and family. An unexecuted affidavit by the Emory professor in the Record estimates that ‘there are 86,795 former and present [Wal-Mart] employees in Wisconsin, of which 23,911 are ‘Active’ current employees.’ To say that such a trial would be unmanageable is somewhat akin to saying that the sun is warm or that the universe is large.”

Order denying class certification is affirmed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, Kremers, J., Fine, J.

Attorneys:

For Appellant: Franklin D. Azar, Aurora, CO; Gerald Bader, Aurora, CO; Kent I. Carnell, Madison; William P. Dixon, Madison; Robert L. Elliott, Madison; Colleen M. Fleming, Milwaukee, et al.

For Respondent: Bernard J. Bobber, Milwaukee; Raymond J. Carey, Detroit, MI; Daniel A. Kaplan, Madison

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