court-gavel.jpgBy Gerald L. Maatman, Jr. and Laura J. Maechtlen

As we predicted here and 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). On October 27 and 28, respectively, Plaintiffs filed an amended complaint in the seminal case of Dukes, et al. v. Wal-Mart Stores Inc., No. 3:01-CV-02252 (N.D. Cal.), which reduced plaintiff’s claims to a regional class, and another tag-along lawsuit in Texas entitled Odle, et al. v. Wal-Mart Stores, Inc., No. 3:11-CV -2954 (N.D. Tex.). Both allege Wal-Mart gave female workers fewer promotions and paid those in salaried and hourly positions less than men in comparable positions, but they focused on smaller and regional groups of employees. In addition, as we reported here, plaintiffs also pursued an “attack by a thousand cuts.” By this tactic, the plaintiffs’ bar unbundled their array of claimants by filing multiple EEOC charges in different regions of the country.

Following those “rebooted” claims, additional chapters in the class action playbook stemming from the Dukes litigation continue to be written. On October 2, three named plaintiffs filed a third lawsuit against Wal-Mart entitled Phipps, et al. v. Wal-Mart Stores, Inc., No. 3:12-cv-01009 (W.D. Tenn.) alleging sex discrimination on behalf of a class of present and former female Wal-Mart retail store employees who have been subjected to gender discrimination as a result of regional policies and/or practices in “Region 43” — a region allegedly centered in Middle and Western Tennessee, and including portions of Alabama, Arkansas, Georgia, and Mississippi. Plaintiffs allege (1) denial of equal pay for hourly retail store positions; (2) denial of equal pay for salaried management positions up to, and including, Co-Manager; and (3) denial of equal opportunities for promotion to management track positions up to, and including, Store Manager. 

In addition, on October 4, 2012, eleven named plaintiffs filed a fourth lawsuit entitled Love, et al. v. Wal-Mart Stores, Inc., No. 0:12-cv-61959 (S.D. Fla.) alleging sex discrimination on behalf of three regional classes of present and former female Wal-Mart and Sam’s Club retail store employees. The plaintiffs allege that the members of each class were subjected to gender discrimination as a result of the specific policies and practices in place in their particular region. The three regions at issue in the Love case, all falling within the Southeastern United States, consist of: (1) Wal-Mart Region 10—approximately 88 Wal-Mart retail stores located in Florida; (2) Wal-Mart Region 46—approximately 70 Wal-Mart retail stores, mostly located in Florida, as well as Georgia and South Carolina; and (3) Sam’s Club Region 6—one of only 6 Sam’s Club regions in the United States, consisting of approximately 77 Sam’s Club retail stores in Florida, as well as Georgia, South Carolina, North Carolina, Alabama, Tennessee, and Virginia. Plaintiffs contend that, in each of the above Regions, Wal-Mart maintained a pattern or practice of gender discrimination in compensation and promotion, and that the compensation and promotion policies and practices of Wal-Mart had a disparate impact, not justified by business necessity, on its female employees in the Region. 

While these new actions attempt to meet the U.S. Supreme Court’s requirements set forth in Dukes, it is unclear whether they will be viewed by courts as thinly-veiled attempts to repackage the same theories that doomed the class certification in the first place. The proposed classes in these newly filed complaints continue to include numerous stores, thousands of employees supervised by thousands of separate managers. Because the delegation of decision-making authority to multiple lower-level managers was not an employment practice capable of class-wide resolution in the first instance, plaintiffs will still be required to prove in each of these actions that every decision maker applied the same discriminatory method of decision making. 

We will continue to monitor how these cases unfold.