By Gerald R. Maatman, Jr., Laura Maechtlen, and Kathryn “Chris” Palamountain

As discussed here, in the wake of the U.S. Supreme Court’s decertification of a nationwide class in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), former class members have filed a number of follow-on actions against Wal-Mart. We have also explained here and here that a number of district courts have dismissed these class claims as untimely.  Last week, Judge Robert Scola of the U.S. District Court for the Southern District of Florida joined the growing ranks of courts finding that members of the former Dukes class could not “piggyback” the tolling of their class claims onto the decertified Dukes class claims. However, this decision comes with a twist because Judge Scola basically invited the Eleventh Circuit to weigh in on whether the “no piggyback” rule remained valid in the wake of subsequent Supreme Court decisions.

Background Of The Case  

The Florida case, entitled Love v. Wal-Mart Stores, Inc., No. 12-61959-Civ-SCOLA (S.D. Fla.  Sept. 23, 2013), was filed by present and former female Wal-Mart retail store employees who were former members of the Dukes class. Their pay and promotion gender discrimination claims are substantially similar to those being litigated in Dukes, but these plaintiffs narrowed their class claims to three regions located in the Southeastern United States. 

Shortly after the case was filed, Wal-Mart submitted a motion to dismiss the class allegations. Although Wal-Mart agreed that the Dukes case tolled the statute of limitations on individual claims, the company noted that the Eleventh Circuit’s decision in Griffin v. Singletary, 17 F.3d 356 (11th Cir. 1994), precluded similar tolling with respect to the class claims. In Griffin, the Eleventh Circuit adopted a “no-piggyback rule” for class actions, stating that “the pendency of a previously filed class action does not toll the limitations period for additional class actions by putative members of the original class.” Id. at 359 (emphasis in original). 

Plaintiffs attempted to avoid Griffin’s no-piggyback rule with two arguments. First, the plaintiffs attempted to distinguish Griffin by stating that the decision precluded tolling only where the subsequent class claims are identical to those in the original suit, whereas the class claims they pled were different from the Dukes class claims. Second, the plaintiffs argued that the Supreme Court implicitly overruled Eleventh Circuit’s reasoning in Griffin in two subsequent Supreme Court decisions, Shady Grove Orthopedic Associates v. Allstate Ins. Co., 559 U.S. 393 (2009), and Smith v. Bayer Corp., 131 S.Ct. 2368 (2011).  

The Basis Of The Court’s Ruling

The Court rejected both arguments. The Court first observed that the fact that plaintiffs’ Title VII claims were originally raised in Dukes “is precisely the reason why the individual claims get the benefit of tolling.” Love, supra, at 5. Even if the proposed class in Love was narrower than the Dukes class, the Court found that “limiting a class by geographic regions does not transform the class claims into something different from the class claims asserted in Dukes.” Id. at 6. 

Although the Court had little difficulty concluding that the purported Love class fell within the scope of the “no-piggyback” rule, Judge Scola seemed to struggle with the continued validity of the rule in light of subsequent Supreme Court decisions. Perhaps missing the fact that each of the Supreme Court decisions upon which plaintiffs relied involved potentially different class certification standards under state and federal law, the Court observed that “[t]he rational for the no-piggybacking rule is certainly undermined by the Supreme Court’s rulings.” Id. at 8. However, the Court insisted that it was bound to follow the rule because it could not “say that Griffin has been ‘undermined to the point of approbation.’” Id. at 7. Further reflecting its uncertainty, the Court hinted that the “Eleventh Circuit may wish to refine Griffin’s bright-line rule barring successive class actions by former class members.” Id. at 8.

Implications For Employers

The Love decision demonstrates that, even when courts are faced with proposed class claims substantively identical, albeit with a smaller geographic scope, than those the Supreme Court decertified in Wal-Mart Stores, Inc. v. Dukes, some courts are troubled by application of tolling rules that prevent former members of the Dukes class from presenting rebooted class claims. The Court in Love expressly invited appellate review of the “no-piggyback” rule. We will keep you informed of whether the Eleventh Circuit decides to attend the soiree.