Wal-Mart has again found itself at the center of developing class action jurisprudence. The retail giant is now before the high court of Pennsylvania appealing a $187 million damages award granted to employees alleging off-the-clock violations. Wal-Mart maintains that because the substantial damages award was based solely on the testimony of six workers, the procedure exemplifies “trial-by-formula,” a means of finding liability proscribed by the U.S. Supreme Court’s landmark Dukes decision, whereby a representative group of class members’ claims are used to determine the value and validity of the claims of the remainder of the class. See Braun v. Wal-Mart Stores Inc., No. 32 EAP 2012 (Penn. 2012) and Hummel v. Wal-Mart Stores Inc., No. 33 EAP 2012 (Penn. 2012).
Plaintiffs argue that Wal-Mart is invoking trial-by-formula beyond its intended scope: “Contrary to Wal-Mart’s arguments on appeal, the ‘trial-by-formula’ catchphrase does not outlaw the use of routine and well-regarded summaries of voluminous business records.” Braun at 22. Because federal and other state jurisdictions regularly confront the question of what proportion of class members must have experienced violations in order to trigger classwide liability for a defendant, the resulting Pennsylvania Supreme Court rulings are expected to be widely influential.
Pennsylvania’s intermediate appellate court affirmed the $187 million judgment in a sprawling opinion, but failed to address the trial-by-formula argument. This is the only issue on which the Pennsylvania Supreme Court requested briefing in its order granting allowance of appeal of the judgment. See Petition for Allowance of Appeal from the Order of the Superior Court, No. 551 EAL 2011 (Penn. July 2, 2012).