We might lose and don’t know what it will cost

Walmart this week filed its annual report on form 10-K with the Securities and Exchange Commission, and in keeping with good disclosure practices around risk factors the company offered an update on the sex discrimination case that has been all over the news.

What follows is Walmart’s official recap of Dukes v. Wal-Mart Stores Inc., that was filed in June 2001 in the United States District Court for the Northern District of California and was heard this week before the U.S. Supreme Court. The company warns that due to uncertainty surrounding a wide range of variables in the case it cannot reasonably estimate possible losses or even provide a range of potential losses but warns such losses could have a material impact on its finances.

According to the filing, “The complaint alleges that the company has engaged in a pattern and practice of discriminating against women in promotions, pay, training and job assignments. The complaint seeks, among other things, injunctive relief, front pay, back pay, punitive damages and attorneys’ fees. On June 21, 2004, the district court issued an order granting in part and denying in part the plaintiffs’ motion for class certification. 

The class, which was certified by the district court for purposes of liability, injunctive and declaratory relief, punitive damages and lost pay, subject to certain exceptions, includes all women employed at any Wal-Mart domestic retail store at any time since Dec. 26, 1998, who have been or may be subjected to the pay and management track promotions policies and practices challenged by the plaintiffs. 

On Aug. 31, 2004, the United States Court of Appeals for the Ninth Circuit granted the company’s petition for discretionary review of the ruling. On Feb. 6, 2007, a divided three-judge panel of the court of appeals issued a decision affirming the district court’s certification order. On Feb. 20, 2007, the company filed a petition asking that the decision be reconsidered by a larger panel of the court. On Dec. 11, 2007, the three-judge panel withdrew its opinion of Feb. 6, 2007, and issued a revised opinion. As a result, the company’s Petition for Rehearing En Banc was denied as moot. The company filed a new Petition for Rehearing En Banc on Jan. 8, 2008. On Feb. 13, 2009, the court of appeals issued an Order granting the Petition. On April 26, 2010, the Ninth Circuit issued a divided (6-5) opinion affirming certain portions of the district court’s ruling and reversing other portions. On Aug. 25, 2010, the company filed a petition for a writ of certiorari to the United States Supreme Court seeking review of the Ninth Circuit’s decision. On Dec. 6, 2010, the Supreme Court granted the Company’s petition for writ of certiorari. The company filed its Brief for Petitioner on January 20, 2011; the Brief for Respondents was filed on Feb. 22; and oral argument was held on March 29. 

If the company is not successful in its appeal of class certification, or an appellate court issues a ruling that allows for the certification of a class or classes with a different size or scope, and if there is a subsequent adverse verdict on the merits from which there is no successful appeal, or in the event of a negotiated settlement of the litigation, the resulting liability could be material to the company’s financial condition or results of operations. 

The plaintiffs also seek punitive damages which, if awarded, could result in the payment of additional amounts material to the company’s financial condition or results of operations. However, because of the uncertainty of the outcome of the appeal, because of the uncertainty of the balance of the proceedings contemplated by the district court, and because the company’s liability, if any, arising from the litigation, including the size of any damages awarded if plaintiffs are successful in the litigation or any negotiated settlement, could vary widely, the company cannot reasonably estimate the possible loss or range of loss that may arise from the litigation.”