As we previously reported, on October 28, 2012, former class members in Dukes, et al. v. Wal-Mart Stores, Inc. filed a lawsuit entitled Odle, et al. v. Wal-Mart Stores, Inc., No. 3:11-CV -2954 (N.D. Tex.), a “tag-along” case to the oft-cited, and still pending, Wal-Mart class action. Plaintiff Stephanie Odle and six other named plaintiffs filed the suit on behalf of themselves and approximately 50,000 female Wal-Mart employees, alleging that they were subjected to gender discrimination as a result of specific policies and practices in Wal-Mart’s regions located in whole or in part in Texas. Specifically, Plaintiffs alleged gender discrimination by denying equal opportunities for promotion to management track positions, and denying equal pay for both hourly retail store positions and for salaried management positions.
On October 15, 2012, U.S. District Judge O’Connor dismissed all class claims, reasoning that the lawsuit was not timely filed, and not protected by tolling principles. Notably, the Court found the named plaintiff Stephanie Odle’s individual claims, and the class claims, could not benefit from the Supreme Court’s 1974 decision in American Pipe & Construction Co. v. Utah, 414 U.S. 538 (1974), which can allow former class members who either intervene or file individual claims in another forum to toll otherwise time-barred claims. In his ruling, Judge O’Connor relied on the Fifth Circuit’s 1985 decision in Salazar-Calderon v. Presidio Valley Farmers Association, 765 F.2d 1334 (5th Cir. 1985), which restricted tolling to subsequent individual lawsuits and not class actions. Judge O’Connor reasoned that he was bound by Salazar-Calderon and, alternatively, and that the cases the plaintiffs cited — including Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 130 S. Ct. 1431 (2010), and Smith v. Bayer Corp., 131 S. Ct. 2368 (2011) — were merely “illuminating.” See Odle, et al., No. 3:11-CV -2954, at 12-16 (N.D. Tex. Oct. 15, 2012). Thus, the plaintiffs’ class claims did not benefit from American Pipe tolling, and the claims filed by Odle and the class were dismissed. Plaintiffs then timely filed a motion requesting that Judge O’Connor certify his October 15 ruling for interlocutory review on the issue of tolling.
Although Judge O’Connor acknowledged that the Fifth Circuit “disfavors” interlocutory appeals and allows certification only in “exceptional” cases, he agreed with plaintiffs in a January 7, 2013 order and certified the case for review. See Odle, et al., No. 3:11-CV -2954 (N.D. Tex. Jan. 7, 2012). The Court determined that a controlling question of law was involved, and an immediate appeal would materially advance the ultimate termination of the litigation. Id. at 4-5. The crux of the January 7 order certifying appellate review, however, centered around whether there was “substantial ground for difference of opinion” on the key issues at hand. Id. at 5. The Court determined that there was such difference of opinion, noting that “while courts do not agree what affect recent Supreme Court precedent has on successor class actions, or more specifically American Pipe tolling with successor class actions, some courts have found that these cases have an affect.” Id. at 5.
The next step is a ruling from the U.S. Court of Appeals for the Fifth Circuit on whether it will accept the issue for review. The stakes are enormous, and we will keep our blog readers updated with further developments.