MD Tennessee.jpgBy Rebecca Bjork and Gerald L. Maatman, Jr.

The class action lawsuits against retailer Wal-Mart alleging discrimination against female employees continue on, even though at one time, many in the plaintiffs’ bar warned that the Supreme Court’s 2011 ruling in its favor could be a death knell for employment class actions. We never subscribed to that view, and, no surprise to us, they did “re-boot” their claims and press ahead. 

A recent ruling in one of the follow-on regional class action suits filed against the employer proves the point. In Phipps, et al. v. Wal-Mart Stores, Inc., No. 12-CV-1009 (M.D. Tenn. June 13, 2013), the court granted the plaintiffs’ motion to certify for interlocutory review under 28 U.S.C. § 1292(b) its prior Order dismissing the plaintiffs’ class claims relating to Region 43 of the company (encompassing Tennessee and other states) as time-barred. We have been following this case, and previously have discussed it here and here. This new development definitely merits some attention. 

In this latest ruling, the court reiterated its prior statement questioning the validity of the Sixth Circuit’s decision in Andrews v. Orr, 851 F.2d 146, 149 (6th Cir. 1988). The court described the Andrews case as stating “categorically, that there was ‘unanimous agreement that the pendency of a previously filed class action does not toll the statute of limitations period for additional class actions by putative members of the original class.’” Phipps, slip op. at 2.

Notwithstanding this categorical and supposed unanimous agreement on tolling, the court quite directly asked the Sixth Circuit to reconsider the rule articulated in Andrews. Id., slip op. at 3. In so doing, the court noted a recent Sixth Circuit decision of In Re Vertrue Mktg. & Sales Pracs. Litig., 2013 WL 1607295 (6th Cir. Apr. 16, 2013), which “found an exception to Andrews” and allowed tolling of the statute of limitations in a follow-on class action under Am. Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554 (1974). 

More strikingly, in our view, is the court’s explicit reliance on notions of “fundamental fairness” and “substantial policy issues” which “flow from the Supreme Court’s landmark Dukes decision” because it could “impact the viability of many . . . putative class action lawsuits going forward.”  Phipps, slip op. at 7. Indeed, the Supreme Court’s interpretation of the commonality requirement of Rule 23(a) was a game-changer. But fairness for whom? And should notions of policy and fairness determine how courts decide legal issues like tolling?

Whether the Sixth Circuit will accept the appeal is unclear. Notably, on March 19, 2013, the Fifth Circuit declined to accept a similar interlocutory review, denying the Texas plaintiffs’ motion to review the adverse tolling decision in that follow-on case in the Northern District of Texas. But there is no mystery over the fact that statutes of limitations defenses are key to employers sued in workplace class actions. They can rule out claims altogether, or reduce the liability exposure figures substantially. Because of the importance of this issue, and the “fairness” factor as perceived by those on the defendants’ side of the “v”, we will continue to follow this case for our readers.