學(xué)生復(fù)印用沃爾瑪集團(tuán)訴訟案

1、1. class actionA class action, class suit, or representative action is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member of that group. The class action originated in the United States and is still predominantly a U.S. phenomenon, but severa

2、l European countries with civil law, have made changes in recent years to allow consumer organizations to bring claims on behalf of consumers.Modern class actions in the United States訴訟1: Federal courtsIn the United States federal courts, class actions are governed by Federal Rules of Civil Procedur

3、e Rule 23 and 28 U.S.C.A. § 1332(d). Cases in federal courts are only allowed to proceed as class actions if the court has jurisdiction to hear the case, and if the case meets the criteria set out in Rule 23. In the vast majority of federal class actions, the class is acting as the plainti

4、ff. However, Rule 23 also provides for defendant class actions.Typically, federal courts are thought to be more favorable for defendants, and state courts more favorable for plaintiffs. Many class actions are filed initially in state court. The defendant will frequently try to remove the case to fed

5、eral court. The Class Action Fairness Act of 2005 increases defendants' ability to remove state cases to federal court by giving federal courts original jurisdiction for all class actions with damages exceeding $5,000,000 exclusive of interest and costs. It should be noted, however, that the Cla

6、ss Action Fairness Act contains carve-outs for "inter alia", shareholder class actions covered by the Private Securities Litigation Reform Act of 1995 and those concerning internal corporate governance issues (the latter typically being brought as shareholder derivative actions in the stat

7、e courts of Delaware, the state of incorporation of most large corporations).JurisdictionClass actions may be brought in federal court if the claim arises under federal law or if the claim falls under 28 USCA § 1332(d). Under § 1332(d) (2) the federal district courts have original jur

8、isdiction over any civil action where the amount in controversy exceeds $5,000,000 and· any member of a class of plaintiffs is a citizen of a State different from any defendant; or· any member of a class of plaintiffs is a foreign state or a citizen or subject of a foreign state and any de

9、fendant is a citizen of a State; or· any member of a class of plaintiffs is a citizen of a State and any defendant is a foreign state or a citizen or subject of a foreign state.Nationwide plaintiff classes are possible, but such suits must have a commonality of issues across state lines. This m

10、ay be difficult if the civil law in the various states lack significant commonalities. Large class actions brought in federal court frequently are consolidated for pre-trial purposes through the device of multidistrict litigation (MDL). It is also possible to bring class actions under state law, and

11、 in some cases the court may extend its jurisdiction to all the members of the class, including out of state (or even internationally) as the key element is the jurisdiction that the court has over the defendant.訴訟2 State courtsSince 1938, many states have adopted rules similar to the FRCP. However,

12、 some states, like California, have civil procedure systems, which deviate significantly from the federal rules; the California Codes provide for four separate types of class actions. As a result, there are two separate treatises devoted solely to the complex topic of California class actions. Some

13、states, such as Virginia, do not provide for any class actions, while others, such as New York, limit the types of claims that may be brought as class actions. In 2013, several class action lawsuits have been filed under both the federal Fair Debt Collection Practices Act and similar Michigan state

14、laws against some of Michigan's largest medical providers and collection agencies which may have a dramatic impact on the collection of unpaid medical bills and the collection industry as a whole. AdvantagesClass actions may offer a number of advantages because they aggregate a large number of i

15、ndividualized claims into one representational lawsuit.First, aggregation can increase the efficiency of the legal process, and lower the costs of litigation. In cases with common questions of law and fact, aggregation of claims into a class action may avoid the necessity of repeating "days of

16、the same witnesses, exhibits and issues from trial to trial." Second, a class action may overcome "the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights." "A class action solves this problem by aggre

17、gating the relatively paltry potential recoveries into something worth someones (usually an attorneys) labor." In other words, a class action ensures that a defendant who engages in widespread harm  but does so minimally against each individual plaintiff  must compensate those individ

18、uals for their injuries. For example, thousands of shareholders of a public company may have losses too small to justify separate lawsuits, but a class action can be brought efficiently on behalf of all shareholders. Perhaps even more important than compensation is that class treatment of claims may

19、 be the only way to impose the costs of wrongdoing on the wrongdoer, thus deterring future wrongdoing.Third, class action cases may be brought to purposely change behavior of a class of which the defendant is a member. Landeros v. Flood was a landmark case used to purposefully change the behavior of

20、 doctors, and encourage them to report suspected child abuse. Otherwise, they would face the threat of civil action for damages in tort proximately flowing from the failure to report the suspected injuries. Previously, many physicians had remained reluctant to report cases of apparent child abuse, d

21、espite existing law that required it.Fourth, in "limited fund" cases, a class action ensures that all plaintiffs receive relief and that early-filing plaintiffs do not raid the fund (i.e., the defendant) of all its assets before other plaintiffs may be compensated. SeeOrtiz v. Fibreboard C

22、orp., 527 U.S. 815 (1999). A class action in such a situation centralizes all claims into one venue where a court can equitably divide the assets amongst all the plaintiffs if they win the case.Finally, a class action avoids the situation where different court rulings could create "incompatible

23、 standards" of conduct for the defendant to follow. See Fed. R. Civ. P. 23(b)(1)(A). For example, a court might certify a case for class treatment where a number of individual bond-holders sue to determine whether they may convert their bonds to common stock. Refusing to litigate the case in on

24、e trial could result in different outcomes and inconsistent standards of conduct for the defendantcorporation. Thus, courts will generally allow a class action in such a situation. Whether a class action is superior to individual litigation depends on the case and is determined by the judge's ru

25、ling on a motion for class certification. The Advisory Committee Note to Rule 23, for example, states that mass torts are ordinarily "not appropriate" for class treatment. Class treatment may not improve the efficiency of a mass tort because the claims frequently involve individualized iss

26、ues of law and fact that will have to be re-tried on an individual basis. See Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (rejecting nationwide class action against tobacco companies). Mass torts also involve high individual damage awards; thus, the absence of class treatment will not im

27、pede the ability of individual claimants to seek justice. See id. Other cases, however, may be more conducive to class treatment.The preamble to the Class Action Fairness Act of 2005, passed by the United States Congress, found:Class-action lawsuits are an important and valuable part of the legal sy

28、stem when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.CriticismsThere are several criticisms of class actions. The preamble to the Class Action F

29、airness Act stated that some abusive class actions harmed class members with legitimate claims and defendants that have acted responsibly, adversely affected interstate commerce, and undermined public respect for the country's judicial system.Class members often receive little or no benefit from

30、 class actions. Examples cited for this include large fees for the attorneys, while leaving class members with coupons or other awards of little or no value; unjustified awards are made to certain plaintiffs at the expense of other class members; and confusing notices are published that prevent clas

31、s members from being able to fully understand and effectively exercise their rights.For example, in the United States, class lawsuits sometimes bind all class members with a low settlement. These "coupon settlements" (which usually allow the plaintiffs to receive a small benefit such as a

32、small check or a coupon for future services or products with the defendant company) are a way for a defendant to forestall major liability by precluding a large number of people from litigating their claims separately, to recover reasonable compensation for the damages. However, existing law require

33、s judicial approval of all class action settlements, and in most cases class members are given a chance to opt out of class settlement, though class members, despite opt-out notices, may be unaware of their right to opt out because they did not receive the notice, did not read it, or did not underst

34、and it.The Class Action Fairness Act of 2005 addresses these concerns. Coupon settlements may be scrutinized by an independent expert before judicial approval in order to ensure that the settlement will be of value to the class members. Further, if the action provides for settlement in coupons, &quo

35、t;the portion of any attorneys fee award to class counsel that is attributable to the award of the coupons shall be based on the value to class members of the coupons that are redeemed." Mass actionsIn a class action, the plaintiff seeks court approval to litigate on behalf of a group of simila

36、rly-situated persons. Not every plaintiff looks for, or could obtain, such approval. As a procedural alternative, plaintiff's counsel may attempt to sign up every similarly-situated person that counsel can find as a client. Plaintiff's counsel can then join the claims of all of these persons

37、 in one complaint, a so-called "mass action," hoping to have the same efficiencies and economic leverage as if a class had been certified.Because mass actions operate outside the detailed procedures laid out for class actions, they can pose special difficulties for both plaintiffs, defenda

38、nts, and the court. For example, settlement of class actions follows a predictable path of negotiation with class counsel and representatives, court scrutiny, and notice. There may not be a way to uniformly settle all of the many claims brought via a mass action. Some states permit plaintiff's c

39、ounsel to settle for all the mass action plaintiffs according to a majority vote, for example. Other states, such as New Jersey, require each plaintiff to approve the settlement of that plaintiff's own individual claims.2. 性別歧視Sexism or gender discrimination is prejudice or discrimination based

40、on a person's sex or gender. Sexism can affect any gender, but it is particularly documented as affecting women and girls. It has been linked to stereotypes and gender roles, and may include the belief that one sex or gender is intrinsically superior to another. Extreme sexism may foster sexual

41、harassment, rape and other forms of sexual violence. Occupational sexismMain articles: Occupational sexism and Second-generation gender biasOccupational sexism refers to discriminatory practices, statements or actions, based on a person's sex, occurring in the workplace. One form of occupational

42、 sexism is wage discrimination.In 2008, the Organisation for Economic Co-operation and Development (OECD) found that while female employment rates have expanded and gender employment and wage gaps have narrowed nearly everywhere, on average women still have 20 percent less chance to have a job and a

43、re paid 17 percent less than men. The report stated:In many countries, labour market discriminationi.e. the unequal treatment of equally productive individuals only because they belong to a specific groupis still a crucial factor inflating disparities in employment and the quality of job opportuniti

44、es . Evidence presented in this edition of the Employment Outlook suggests that about 8 percent of the variation in gender employment gaps and 30 percent of the variation in gender wage gaps across OECD countries can be explained by discriminatory practices in the labour market. It also found that d

45、espite the fact that almost all OECD countries, including the U.S., have established anti-discrimination laws, these laws are difficult to enforce. A 2014 study by Wendy M. Williams and Stephen J. Ceci found that female applicants are preferred 2:1 over identically qualified male applicants in acade

46、mic hiring. Women who enter predominantly male work groups can experience the negative consequences of tokenism: performance pressures, social isolation, and role encapsulation. Tokenism could be used to camouflage sexism, to preserve male worker's advantage in the workplace. No link exists betw

47、een the proportion of women working in an organization/company and the improvement of their working conditions. Ignoring sexist issues may exacerbate womens occupational problems. Wage gapMain article: Gender pay gapGender pay gap in average gross hourly earnings according to Eurostat 2008Eurostat f

48、ound a persistent, average gender pay gap of 17.5 percent in the 27 EU member states in 2008. Similarly, the OECD found that female full-time employees earned 17 percent less than their male counterparts in OECD countries in 2009. Studies have concluded that on average women earn lower wages than me

49、n worldwide. Some economists and feminists argue that this is the result of widespread gender discrimination in the workplace. Others argue that the wage gap is a result of different choices by men and women, such as women placing more value than men on having children, and men being more likely tha

50、n women to choose careers in high paying fields such as business, engineering and technology. The prevailing view among economists is that the wage gap is the result of a combination of both of these factors.In the United States, the female-to-male earnings ratio was 0.77 in 2009; female full-time,

51、year-round (FTYR) workers earned 77 percent as much as male FTYR workers. Women's earnings relative to men's fell from 1960 to 1980 (60.7 percent to 60.2 percent), rose rapidly from 1980 to 1990 (60.2 to 71.6 percent), leveled off from 1990 to 2000 (71.6 to 73.7 percent) and rose from 2000 t

52、o 2009 (73.7 to 77.0 percent). When the first Equal Pay Act was passed in 1963, female full-time workers earned 58.9 percent as much as male full-time workers. Research conducted in the Czech and Slovak Republics shows that, even after the governments passed anti-discrimination legislation, two thir

53、ds of the gender gap in wages remained unexplained and segregation continued to "represent a major source of the gap".The gender gap can also vary across-occupation and within occupation. In Taiwan, for example, studies show how the bulk of gender wage discrepancies occur within-occupation

54、. In Russia, research shows that the gender wage gap is distributed unevenly across income levels, and that it mainly occurs at the lower end of income distribution. The research also found that "wage arrears and payment in-kind attenuated wage discrimination, particularly amongst the lowest pa

55、id workers, suggesting that Russian enterprise managers assigned lowest importance to equity considerations when allocating these forms of payment." The gender pay gap has been attributed to differences in personal and workplace characteristics between men and women (such as education, hours wo

56、rked and occupation), innate behavioral and biological differences between men and women and discrimination in the labor market (such as gender stereotypes and customer and employer bias). Women currently take significantly more time off to raise children than men. In certain countries such as South

57、 Korea, it has also been a long-established practice to lay-off female employees upon marriage. A study by professor Linda Babcock in her book Women Don't Ask shows that men are eight times more likely to ask for a pay raise, suggesting that pay inequality may be partly a result of behavioral di

58、fferences between the sexes. However, studies generally find that a portion of the gender pay gap remains unexplained after accounting for factors assumed to influence earnings; the unexplained portion of the wage gap is attributed to gender discrimination. Estimates of the discriminatory component

59、of the gender pay gap vary. The OECD estimated that approximately 30 percent of the gender pay gap across OECD countries is due to discrimination. Australian research shows that discrimination accounts for approximately 60 percent of the wage differential between men and women. Studies examining the

60、 gender pay gap in the United States show that a large portion of the wage differential remains unexplained, after controlling for factors affecting pay. One study of college graduates found that the portion of the pay gap unexplained after all other factors are taken into account is five percent one year after graduating and twelve percent a decade after graduation. A study by the American Association of University W