Cheryl Phipps v. Wal-Mart Stores, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0140p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
CHERYL PHIPPS; BOBBI MILLNER; SHAWN GIBBONS, ┐
on behalf of themselves and all others similarly │
situated, │
│ No. 13-6194
Plaintiffs-Appellants,
│
>
│
v.
│
│
WAL-MART STORES, INC., │
Defendant-Appellee. │
┘
Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:12-cv-01009—Aleta Arthur Trauger, District Judge.
Argued: May 1, 2014
Decided and Filed: July 7, 2015
Before: MERRITT, COOK, and STRANCH, Circuit Judges.
_________________
COUNSEL
ARGUED: Joseph M. Sellers, COHEN MILSTEIN SELLERS & TOLL, PLLC, Washington,
D.C., for Appellants. Theodore J. Boutrous, Jr., GIBSON, DUNN & CRUTCHER LLP, Los
Angeles, California, for Appellee. ON BRIEF: Joseph M. Sellers, Christine E. Webber,
COHEN MILSTEIN SELLERS & TOLL, PLLC, Washington, D.C., George E. Barrett, David
W. Garrison, Scott P. Tift, Seth M. Hyatt, BARRETT JOHNSTON, LLC, Nashville, Tennessee,
Jocelyn D. Larkin, THE IMPACT FUND, Berkeley, California, for Appellants. Theodore J.
Boutrous, Jr., GIBSON, DUNN & CRUTCHER LLP, Los Angeles, California, Rachel S. Brass,
GIBSON, DUNN & CRUTCHER LLP, San Francisco, California, Mark A. Perry, GIBSON,
DUNN & CRUTCHER LLP, Washington, D.C., Karl G. Nelson, GIBSON, DUNN &
CRUTCHER, Dallas, Texas, for Appellee.
STRANCH, J., delivered the opinion of the court which MERRITT, J., joined, and
COOK J., joined in part. COOK, J. (pg. 22), delivered a separate opinion concurring in part and
dissenting in part.
1
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 2
_________________
OPINION
_________________
STRANCH, Circuit Judge. This putative class action lawsuit began after the Supreme
Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). There the Supreme
Court rejected certification, under Federal Rule of Civil Procedure 23(b)(2), of a nationwide
class of current female employees of Wal-Mart Stores, Inc., who alleged that Wal-Mart
discriminated against them in pay and promotions based on their gender. Plaintiffs Cheryl
Phipps, Bobbi Millner, and Shawn Gibbons, unnamed class members in Dukes, thereafter filed
suit against Wal-Mart in federal district court in Tennessee alleging individual and putative class
claims under Rule 23(b)(2) and Rule 23(b)(3) on behalf of current and former female employees
in Wal-Mart Region 43. Plaintiffs claim gender discrimination in pay and promotions as the
result of regional Wal-Mart management policies and decisions.
Before us for review is the district court’s order granting Wal-Mart’s motion to dismiss
the class claims as time-barred under the tolling principles of American Pipe & Construction Co.
v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354 (1983).
This interlocutory appeal concerns only whether the plaintiffs may initiate this suit. Whether the
proposed classes are appropriate for certification is not at issue here.
We hold that the putative class claims are not barred by American Pipe or Crown, Cork
& Seal Co. and that the case before the district court may proceed. Accordingly, we REVERSE
the district court’s order dismissing the class claims under Federal Rule of Civil
Procedure 12(b)(6) and we REMAND the case to the district court for further proceedings.
I. PROCEDURAL HISTORY
Wal-Mart is the country’s largest private employer, operating approximately 3,400 stores
and employing more than one million people. Dukes, 131 S. Ct. at 2547. Wal-Mart divides its
stores into nationwide divisions and subdivides the divisions into regions. Id.On June 8, 2001, six named plaintiffs filed suit under Title VII of the Civil Rights Act of
1964, as amended, in the Northern District of California on behalf of all former and current
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 3
female employees of Wal-Mart. Id. The suit alleged a company-wide pattern or practice of
gender discrimination in pay and promotions since December 26, 1998.1 Id. at 2548. The
plaintiffs also claimed that management decisions concerning pay and promotions
disproportionately favored men, leading to unlawful disparate impact on female employees. Id.The plaintiffs further claimed that, because Wal-Mart knew of this discriminatory effect, its
refusal to modify the corporate culture amounted to unlawful disparate treatment. Id. The
plaintiffs sought certification of a nationwide class of current and former female employees
under Rule 23(b)(2), or alternatively, under Rule 23(b)(3), and requested injunctive and
declaratory relief, backpay, and punitive damages. Id. at 2548, 2561 n.1 (Ginsburg, J.,
concurring in part and dissenting in part).
In 2004, following extensive discovery, the district court certified a nationwide class
under Rule 23(b)(2) for purposes of liability, injunctive and declaratory relief, back pay, and
punitive damages. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 187–88 (N.D. Cal. June 21,
2004). In 2007, the Ninth Circuit affirmed, Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1193 (9th
Cir. 2007), but on rehearing en banc, the Ninth Circuit affirmed in part and remanded in part.
Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 628 (9th Cir. 2010). The court affirmed the
district court’s certification of a nationwide class under Rule 23(b)(2) only for current Wal-Mart
employees—defined as those employed on the date the complaint was filed—with respect to
their claims for declaratory and injunctive relief and back pay. Id. at 624. The court remanded
the case to the district court to consider whether certification under Rule 23(b)(2) or Rule
23(b)(3) was appropriate for the punitive damages claims of current employees and whether an
additional class or classes should be certified under Rule 23(b)(3) for former employees—
defined as those no longer employed on the date the complaint was filed. Id. The court reasoned
that “putative class members who were no longer Wal-Mart employees at the time Plaintiffs’
complaint was filed do not have standing to pursue injunctive or declaratory relief,” and it was
1
“In a pattern-or-practice case, the plaintiff tries to ‘establish by a preponderance of the evidence that . . .
discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice.’”
Dukes, 131 S. Ct. at 2552 n.7 (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)). If she “succeeds, that
showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and
will justify ‘an award of prospective relief,’ such as ‘an injunctive order against the continuation of the
discriminatory practice.’” Id. (quoting Teamsters, 431 U.S. at 361).
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 4
“difficult to say that monetary relief does not predominate with respect to claims by plaintiffs
who lack standing to seek injunctive or declaratory relief.” Id. at 623.
The California district court did not have an immediate opportunity to consider the issues
remanded by the Ninth Circuit. The Supreme Court granted certiorari, and in June 2011 reversed
the certification of the nationwide class of current Wal-Mart employees under Rule 23(b)(2).
Dukes, 131 S. Ct. at 2561. The Court held that the plaintiffs did not demonstrate questions of
law or fact common to the class as required by Rule 23(a)(2) to warrant certification of a
nationwide class of current employees. Id. at 2252–57. The Court reasoned that, because the
plaintiffs had not provided “significant proof” of a nationwide policy or other “specific
employment practice” that discriminated against all 1.5 million class members in the same way,
the case was not suitable for nationwide class treatment. Id.The Court further concluded that the plaintiffs’ requests for backpay were improperly
certified under Rule 23(b)(2) because such relief was not incidental to injunctive or declaratory
relief, and “individualized monetary claims belong in Rule 23(b)(3).” Id. at 2557–58. The Court
outlined the differences between classes certified under Rule 23(b)(2) and Rule 23(b)(3), noting
that (b)(3) requires notice to class members and a chance to opt out, while (b)(2) does not. Id. at
2558. Accordingly, the Supreme Court reversed the Ninth Circuit’s certification of a nationwide
class of current Wal-Mart employees under Rule 23(b)(2). Id. at 2561.
After Dukes, the plaintiffs promptly filed a motion in the California district court to
extend tolling of the statute of limitations under American Pipe & Constr. Co., 414 U.S. at 553–
54. The district court granted the motion in part, providing that all class members who possessed
right-to-sue letters from the Equal Employment Opportunity Commission (EEOC) could file suit
on or before October 28, 2011. Dukes v. Wal-Mart Stores, Inc., No. C 01-02252 CRB, Order at
*1–2 (N.D. Cal. Aug. 19, 2011). The court further provided that all class members who had not
filed administrative charges with the EEOC were required to do so on or before January 27, 2012
in non-deferral states and on or before May 25, 2012 in deferral states. Id.The Dukes plaintiffs then amended the complaint in the California case to narrow the
scope of the proposed class to current and former female Wal-Mart employees who had been
subjected to gender discrimination within four Wal-Mart regions largely based in California.
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 5
Dukes v. Wal-Mart Stores, Inc., No. C 01-02252 CRB, 2012 WL 4329009, *2 (N.D. Cal.
Sept. 21, 2012). The California district court denied Wal-Mart’s motion to dismiss, determined
that this narrowed class action was not barred from proceeding, and set a date for filing of the
motion for class certification. Id. at *10. The district court ultimately denied class certification.
Dukes v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115 (N.D. Cal. Aug. 2, 2013).
Four parallel putative class action lawsuits were filed in other jurisdictions to bring
individual and class claims concerning other Wal-Mart regions, including Tennessee, Phipps v.
Wal-Mart Stores, Inc., 3:12-cv-1009 (M.D. Tenn. filed Oct. 2, 2012); Texas, Odle v. Wal-Mart
Stores, Inc., No. 3:11-cv-2954-O (N.D. Tex. filed October 28, 2011); Florida, Love v. Wal-Mart
Stores, Inc., No. 0:12-cv-61959-RNS (S.D. Fla. filed Oct. 4, 2012); and Wisconsin, Ladik et al.,
v. Wal-Mart Stores, Inc., 291 F.R.D. 263, 264 (W.D. Wisc. filed Feb. 20, 2013). Phipps is
currently before us.
Two of the named plaintiffs, Cheryl Phipps and Bobbi Millner, were Wal-Mart
employees when the Dukes complaint was initially filed; only Gibbons is still employed by Wal-
Mart. The plaintiffs alleged individual Title VII disparate treatment claims and, on behalf of a
class of current and former female Wal-Mart employees in Region 43, they alleged Title VII
pattern-or-practice and disparate impact claims. The plaintiffs requested class certification under
Rule 23(b)(2) and Rule 23(b)(3). Specifically, the plaintiffs alleged that policies and
management decisions in Wal-Mart Region 43 resulted in gender discrimination by denying
current and former female employees equal pay for hourly positions and salaried management
positions and by denying female employees equal opportunities for promotion to management
track positions. Region 43 is centered in middle and western Tennessee, but also includes
portions of Alabama, Arkansas, Georgia, and Mississippi. R. 1.
Wal-Mart moved to dismiss the putative class claims under Rule 12(b)(6), arguing that
Andrews v. Orr, 851 F.2d 146 (6th Cir. 1998), established a bright-line rule prohibiting American
Pipe tolling for any purported class action brought after a previous denial of class certification.
The district court concluded that it was bound by that rule and dismissed the class claims with
prejudice under Rule 12(b)(6), never addressing whether the plaintiffs could satisfy the Rule 23
standards for class certification. Phipps v. Wal-Mart Stores, Inc., 925 F. Supp. 2d 875, 893
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 6
(M.D. Tenn. Feb. 20, 2013). The court, however, expressed doubt about its decision, suggesting
that in light of recent cases, Andrews should be reconsidered or at least refined to permit
American Pipe tolling for a follow-on class action in appropriate circumstances. Id. at 880–81;
Phipps v. Wal-Mart Stores, Inc., No. 3:12-cv-1009, 2013 WL 2897961, *2–4 (M.D. Tenn.
June 13, 2013). The court certified its decision for interlocutory appeal under 28 U.S.C.
§ 1292(b), Phipps, 2013 WL 2897961 at *4, and we granted plaintiffs’ petition for permission to
appeal.
II. ANALYSIS
A. Article III Standing
Before turning to the merits, we address Wal-Mart’s threshold argument that the
plaintiffs lack standing to pursue this appeal. “To have standing, a litigant must seek relief for an
injury that affects [her] in a ‘personal and individual way.’” Hollingsworth v. Perry, 133 S. Ct.
2652, 2662 (2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). We
have no difficulty concluding that the plaintiffs have standing because they “suffered a concrete
and particularized injury that is fairly traceable to the challenged conduct, and is likely to be
redressed by a favorable judicial decision.” Id. at 2661.
The district court’s decision to dismiss the class allegations with prejudice precludes the
plaintiffs from pursuing the pattern-or-practice theory of gender discrimination pled in the
complaint. If the plaintiffs could establish a pattern or practice of gender discrimination, then
each named plaintiff and each unnamed class member could rely on a presumption that each was
affected by the allegedly discriminatory policies, placing the burden to prove otherwise on Wal-
Mart. See Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875 (1984); Teamsters,
431 U.S. at 360; Serrano v. Cintas Corp., 699 F.3d 884, 894–95 (6th Cir. 2012). Because the
pattern-or-practice theory is not available to individual plaintiffs, Bacon v. Honda of Am. Mfg.,
Inc., 370 F.3d 565, 575 (6th Cir. 2004), the named plaintiffs in this case would be unable to
benefit from the presumption of discrimination arising from the theory in the absence of class
allegations. This is a significant loss to the plaintiffs’ prosecution of the case and gives them a
direct stake in the outcome of the appeal. See Hollingsworth, 133 S. Ct. at 2662. In addition, the
dismissal of the class allegations impairs the plaintiffs’ ability to secure the scope of injunctive
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 7
relief that may be necessary to address region-wide gender discrimination, if plaintiffs ultimately
prove their claims. Broad injunctive relief to benefit an entire class is “rarely justified” in an
individual suit. Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir. 2003).
For these reasons, we conclude that the named plaintiffs have standing to appeal the
district court’s interlocutory decision dismissing the class allegations. See Hollingsworth, 133
S. Ct. at 2662. This brings us to the question whether the district court properly dismissed the
class allegations under Rule 12(b)(6). Our review of this issue is de novo. In re Vertrue Inc.
Mktg. & Sales Litig., 719 F.3d 474, 478 (6th Cir. 2013).
B. American Pipe Tolling
The timely filing of a class-action complaint commences suit and tolls the statute of
limitations for all members of the putative class who would have been parties had the suit been
permitted to continue as a class action. American Pipe & Constr. Co., 414 U.S. at 550, 553–54.
Tolling continues until a court decides that the suit is not appropriate for class action treatment.
Id. At that point, the putative class members may protect their rights by moving to intervene as
plaintiffs in the pending action, id., or they may file their own lawsuits, Crown, Cork & Seal Co.
v. Parker, 462 U.S. 345, 354 (1983).
American Pipe tolling of the limitations period guards the principal function of the class
action suit—the fair and efficient adjudication of common claims aggregated in one suit.
American Pipe & Constr. Co., 414 U.S. at 551. The policy inherent in Rule 23 to avoid a
“multiplicity of activity” is protected through American Pipe tolling because class members need
not take action to protect their individual rights until after a court decides that class action
treatment is inappropriate. Id. The litigation efficiency and economy of Rule 23 would be lost
for the parties and the court if class members filed motions to intervene in the suit or filed
independent protective actions before the court has the opportunity to rule on the viability of a
putative class action. Id. at 553; Crown, Cork & Seal Co., 462 U.S. at 354.
In light of these important policy interests, class members who refrain from filing suit
while the class action is pending “cannot be accused of sleeping on their rights; Rule 23 both
permits and encourages class members to rely on the named plaintiffs to press their claims.”
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 8
Crown, Cork & Seal Co., 462 U.S. at 352–53. The class action complaint places the defendant
on notice of the substantive claims brought against it and of the number and generic identities of
the potential plaintiffs who may participate in a judgment. American Pipe & Constr. Co., 414
U.S. at 555. “Tolling the statute of limitations thus creates no potential for unfair surprise,
regardless of the method class members choose to enforce their rights upon denial of class
certification.”2 Crown, Cork & Seal Co., 462 U.S. at 353. Wal-Mart has been on notice of the
claims brought against it and the generic identities of the plaintiffs who would potentially
participate in any judgment since the nationwide class action complaint was filed in Dukes in
2001. Id.The named plaintiffs in this action were members of the class when Dukes was initially
filed, though they were not the named plaintiffs. As permitted by Supreme Court law, they have
relied on the named plaintiffs in Dukes to “press their claims” since 2001 until the Supreme
Court rejected the nationwide class. See Crown, Cork & Seal Co., 462 U.S. at 352–53. All three
plaintiffs then filed administrative charges with the EEOC within the deadline ordered by the
California district court. The EEOC issued right-to-sue letters, and the plaintiffs timely filed suit
within the required ninety days. See 42 U.S.C. § 2000e-5(f)(1). Wal-Mart concedes that the
individual claims of the named plaintiffs are timely brought, but the company urges us to affirm
the district court’s conclusion that, under Andrews v. Orr, 851 F.2d 146 (6th Cir. 1998), the
claims of the unnamed class members in Region 43 do not fall within the tolling protection of
American Pipe.
Proper application of Andrews and our subsequent case, In re Vertrue, requires close
attention to the history of this litigation and particularly to the specifics of the class at issue.
Recall that the Supreme Court addressed in Dukes a nationwide class of current Wal-Mart
employees that had been certified under Rule 23(b)(2) for the purpose of seeking declaratory and
2
Wal-Mart argues that two recent cases, Gabelli v. SEC, 133 S. Ct. 1216 (2013) and Lozano v. Montoya
Alvarez, 134 S. Ct. 1224 (2014), suggest that tolling is disfavored by the Supreme Court. These cases are inapposite
because neither involved Rule 23 class actions or American Pipe tolling. Lozano, 134 S. Ct. at 1228 (addressing
whether equitable tolling was appropriate for a father seeking the return of his child under the Hague Convention);
Gabelli, 133 S. Ct at 1218–19 (addressing whether the “discovery rule” tolled the statute of limitations in an SEC
fraud case).
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 9
injunctive relief against Wal-Mart.3 Dukes, 131 S. Ct. at 2546–49, 2550 & n.4. The Court
expressly recognized that the Ninth Circuit had excluded from the certified class the putative
class members who—at the time the original complaint was filed—were no longer employed by
Wal-Mart because former employees, who are no longer subject to Wal-Mart’s employment
supervision, lack standing to seek Title VII injunctive or declaratory relief against Wal-Mart
under Rule 23(b)(2). Dukes, 131 S. Ct. at 2547 n.1, 2550 n.4. When the Supreme Court issued
Dukes, no class of current Wal-Mart employees had been certified under Rule 23(b)(3) for the
purpose of determining Wal-Mart’s liability for monetary relief. The Supreme Court left that
question open when it ruled that the certified class could not seek monetary relief under Rule
23(b)(2), id. at 2557–61, and explicitly stated that the applicability of Rule 23(b)(3) “to the
plaintiff class is not before us.” Id. at 2549 n.2.
Furthermore, at the time the Supreme Court ruled in Dukes, no class of former Wal-Mart
employees had been certified under Rule 23(b)(3) for the purpose of seeking monetary relief.
The Ninth Circuit, sitting en banc, preserved the right of the former employees to seek monetary
relief through class action by instructing the district court on remand to analyze “whether an
additional class or classes may be appropriate under Rule 23(b)(3) with respect to the claims of
former employees. The court may, if appropriate, certify an additional class or classes under
Rule 23(b)(3).” Dukes, 603 F.3d at 624. Wal-Mart did not ask the Supreme Court to decide
whether the Ninth Circuit erred by remanding the putative class claims of former Wal-Mart
employees to the district court for consideration of class certification under Rule 23(b)(3).
Petition for a Writ of Certiorari, Dukes, 131 S. Ct. 2541 (No. 10-277), 2010 WL 3355820 at *9,
17. In fact, Wal-Mart did not specifically request review on whether the Rule 23(b)(2) class
demonstrated a question of law or fact common to the class under Rule 23(a), id.; the Supreme
Court added that issue for briefing when it granted certiorari. Wal-Mart Stores, Inc. v. Dukes,
131 S. Ct. 795 (2010) (Mem).
3
The Dukes opinion referred to the three named plaintiffs as “current or former Wal-Mart employees,”
Dukes, 131 S. Ct. at 2546, but the Supreme Court explained that two of the named plaintiffs were presently
employed by Wal-Mart and one named plaintiff, Edith Arana, was a Wal-Mart employee at the time the suit was
filed. Id. at 2548. Arana’s employment ended in 2001 when Wal-Mart fired her. Id.No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 10
1. Rule 23(b)(3) class of current and former employees seeking monetary relief in Wal-
Mart Region 43
With the litigation history of Dukes firmly in mind, we begin with the Rule 23(b)(3)
class. We conclude that Andrews v. Orr cannot bar the request of the named plaintiffs to certify
a class of current and former employees seeking monetary relief against Wal-Mart in Region 43
under Rule 23(b)(3). To explain why, we first explore the Andrews opinion and then our more
recent case, In re Vertrue.
Andrews concerned federal employees who wished to bring employment discrimination
claims against their employing federal agency. Andrews, 851 F.2d at 147. Federal regulations
required them to submit an administrative charge to the agency’s Equal Employment
Opportunity Counselor “within 30 calendar days” of the alleged date of discrimination, id.
(quoting 29 C.F.R. § 1613.214), and if they sought class-wide relief, they were required to meet
a 90-day time limit. Id. (citing 29 C.F.R. § 1613.602(a)). Because the timing and sequence of
events were “critical to the decision of the appeal,” the Andrews court set forth the facts in detail,
which we recount below. Id.Andrews was the third of three class action lawsuits brought to challenge the disparate
impact of the government’s Professional and Administrative Career Examination (PACE) used
in hiring and promotion decisions. Id. at 147–48. The first class action was Luevano v.
Campbell, 93 F.R.D. 68 (D.D.C. 1981), but the Andrews opinion did not discuss the significance
or outcome of the Luevano case. Id. at 148. The second class action, captioned Brown v. Orr,
99 F.R.D. 524, 526 (S.D. Ohio 1983), was filed in Ohio by one plaintiff on behalf of all African-
American employees of the Air Force Logistics Command (AFLC) who were denied promotions
because of PACE. Id. The district court denied class certification in Brown on March 15, 1983,
because the plaintiff failed to establish commonality or typicality under Rule 23(a), Brown,
99 F.R.D. at 528; however, the unnamed class members took no action to protect their rights.
Andrews, 851 F.2d at 148. The 30-day statute of limitations for filing individual claims with an
EEO counselor began to run on March 15, when class certification was denied, and expired on
April 15. Id. at 149. On April 18, the Brown plaintiff filed a second motion to certify a class,
narrowing the class to employees of Wright-Patterson Air Force Base (WPAFB). Id. Before the
district court could rule on that motion, the plaintiff settled her individual claim on July 12, 1983,
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 11
and the court dismissed the Brown case with prejudice. Id. at 148. The unnamed class members
again took no immediate action with regard to the Brown case. Id. Between July 26 and July 28,
1983, however, the Andrews plaintiffs, who were unnamed members of the Brown class, initiated
the administrative process by contacting an EEO counselor, and they later filed suit. Id.
Although the Andrews court did not elaborate on the district court’s analysis, the lower
court’s opinion establishes that the court applied the 30-day limitations period for filing
individual claims to the Andrews plaintiffs, even though they sought class-action relief under the
90-day limitations period. Andrews v. Orr, 614 F. Supp. 689, 691 (S.D. Ohio June 14, 1985).
The court so held for two reasons. First, a federal regulation implicitly recognized that different
members of the same putative class of federal employees could not repeatedly initiate class
actions based on the same conduct. Id. at 691–92 (citing 29 C.F.R. § 1613.604(b)). Second, the
court pointed to the Supreme Court’s statement in Crown, Cork & Seal that American Pipe
tolling ends when class certification is denied, and thereafter, class members may file their own
suits or intervene in the pending action. Id. The court looked to district court opinions in two
other jurisdictions to support its conclusion “that the statute of limitations is not tolled for
purposes of initiating a new class action.” Id.The Andrews court approved the district court’s reasoning with little analysis, quoting
short excerpts from Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987), Korwek v. Hunt,
827 F.2d 874, 879 (2d Cir. 1987), and Salazar-Calderon v. Presidio Valley Farmers Ass’n,
765 F.2d 1334, 1351 (5th Cir. 1985) (Calderon I). Id. at 149. We will say more about these
three cases later in this opinion. The Andrews court expressed a concern, similar to that voiced
by Justice Powell in his concurrence in Crown, Cork & Seal, that the American Pipe tolling rule
“is a generous one, inviting abuse.” Id. (citing 462 U.S. at 354).
Finally, the Andrews court affirmed the district court’s ruling that the plaintiffs’
individual claims were untimely filed, observing that “[e]ven if the Brown plaintiff’s second
motion for class certification somehow revived or reactivated tolling, it came too late. More than
thirty days had gone by in which neither a class action nor a motion for class certification was
pending.” Id. at 150. Under American Pipe and Crown, Cork & Seal, the court emphasized that
“[i]t is the filing of a class action and the pendency of a motion to certify that suspend the
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 12
running of a limitations period for putative class members, and the period for filing begins to run
anew when class certification is denied.” Id. Ultimately, the Andrews court extended equitable
tolling to the plaintiffs on their individual claims, vacated the judgment dismissing the case, and
remanded for further proceedings on the individual claims. Id. at 150–52.
Our court recently had an opportunity to interpret the meaning of Andrews. See In re
Vertrue, 719 F.3d at 478–80. In that case, the success of the purported class action depended on
whether the plaintiffs were “entitled to tolling during the pendency of a prior putative class
action suit.” Id. at 477. We observed that an out-of-circuit district court had dismissed a prior,
related class action lawsuit, Sanford v. West, without ever ruling on a motion for class
certification. Id. After discussing Andrews at length, we turned to Vertrue’s argument that
Andrews established a “bright line rule that American Pipe tolling never applies to subsequent
class actions by putative class members,” and thus the class action subsequent to Sanford was
time-barred. Id. at 479.
We rejected Vertrue’s proposed bright-line rule. We reasoned that Andrews concerned a
situation in which a subsequent class action was brought after class certification already had been
denied whereas in Vertrue no court had definitively addressed the requested class certification
because the Sanford court had dismissed the initial suit before ruling on a pending motion for
class certification. Id. at 479–80. Because no court had denied class certification and “[b]ecause
the risk motivating our decision in Andrews—namely, repetitive and indefinite class action
lawsuits addressing the same claims” was “simply not present,” we held that the commencement
of the Sanford class action tolled the statute of limitations under American Pipe for subsequent
class claims. Id. at 480.
Significantly, we observed that “[o]ther courts have followed this same approach when
faced with a situation in which a previous court has not made a determination as to the ‘validity
of the class.’” Id. at 480 n.2. In support, we cited Yang v. Odom, 392 F.3d 97, 104, 112 (3d Cir.
2004), for the proposition “that tolling applies to a subsequent class action when the prior denial
of class certification was ‘based solely on Rule 23 deficiencies of the putative representative.’”
Id. We also cited Catholic Social Services, Inc. v. I.N.S., 232 F.3d 1139, 1149 (9th Cir. 2000)
(en banc), for the holding “that tolling applies to a subsequent class action when class
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 13
certification was granted in a prior case.” Id. We drew further support from Great Plains Trust
Co. v. Union Pacific Railroad Co., 492 F.3d 986, 997 (8th Cir. 2007), where the Eighth Circuit
assumed “without deciding that American Pipe analysis applies in cases where one putative class
action suit was dismissed without prejudice and one was voluntarily dismissed.” Id. We also
observed that, “[e]ven those circuits that apply a categorical ban against tolling for the benefit of
subsequent class actions”—and the Vertrue court certainly did not place Andrews in that group—
“have addressed situations in which class certification has been affirmatively denied.” Id.(citing Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994); Calderon I, 765 F.2d at 1349–50;
Basch v. Ground Round, Inc., 139 F.3d 6, 7, 11 (1st Cir. 1998); Korwek, 827 F.2d at 878). The
Vertrue court held that American Pipe tolling applied to make the class claims timely filed,
affirmed the district court’s denial of the defendants’ motion to strike the class allegations, and
allowed the subsequent class action to proceed. Id. at 476, 480.
The reasoning of Vertrue applies with equal force to the putative Rule 23(b)(3) class
action brought against Wal-Mart by Phipps, Millner, and Gibbons on behalf of current and
former female employees in Region 43. The Rule 23(b)(3) class action claims are timely filed
under American Pipe, Crown, Cork & Seal, and the California district court’s 2011 tolling order
entered after the Supreme Court announced its decision in Dukes. When the instant complaint
was filed, no court in any jurisdiction had denied certification of a Rule 23(b)(3) class of current
and former female employees seeking monetary relief against Wal-Mart under Title VII. Vertrue
permits the Rule 23(b)(3) class to proceed in Region 43, and Andrews does not bar it.
We draw further support from the Fifth Circuit’s recent decision reaching an outcome
similar to ours in class litigation brought subsequent to Dukes in Wal-Mart’s Texas regions.
Odle v. Wal-Mart Stores, Inc., 747 F.3d 315 (5th Cir. 2014). Stephanie Odle’s Wal-Mart
employment terminated in late 1998. Id. at 316. In 1999, she filed an administrative charge of
gender discrimination with the EEOC and received a right-to-sue letter in May 2001. Id. at 317.
Odle was one of the original named plaintiffs in the Dukes lawsuit filed in the Northern District
of California. Id. Although the California district court certified a Rule 23(b)(2) nationwide
class of current and former Wal-Mart employees, the Ninth Circuit pared away the individual
and class claims of former Wal-Mart employees, including Odle’s, from the Rule 23(b)(2)
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 14
certified class that eventually reached the Supreme Court. Id. at 318–19. After the Supreme
Court decided Dukes, Odle filed a new action in the Northern District of Texas asserting
individual and putative class claims on behalf of employees in Wal-Mart’s Texas regions. Id. at
318. The district court granted Wal-Mart’s motion to dismiss Odle’s individual and putative
class claims as time-barred, id. at 319, but the Fifth Circuit reversed and remanded for further
proceedings. Id. at 323.
The Fifth Circuit concluded that American Pipe tolling of Odle’s claims continued after
Dukes, 131 S. Ct. 2541, because the Ninth Circuit’s en banc opinion had expressly instructed the
California district court to consider on remand whether to certify a class of former employees
under Rule 23(b)(3), a form of relief that the Dukes plaintiffs had sought in their initial motion
for class certification, but never obtained. Id. The Fifth Circuit further concluded that the Ninth
Circuit’s opinion remanding the case to the California district court did not give Odle notice that
her claims could not be pursued in a subsequent class action. Id. at 320.
Opposing Odle’s efforts to certify a Rule 23(b)(3) class, Wal-Mart relied on Salazar-
Calderon v. Presidio Valley Farmers Ass’n, 863 F.2d 384 (5th Cir. 1989) (per curiam) (Calderon
II). Id. at 321. The Fifth Circuit distinguished that case “on significant procedural grounds.” Id.
To explain why, the court began with its previous opinion, Calderon I, 765 F.2d 1334, a case we
cited in Andrews, 851 F.2d at 149, and Vertrue, 719 F.3d at 480 n.2. The Fifth Circuit wrote:
In Calderon I, the district court denied class certification. On appeal the first
time, we affirmed the district court’s refusal to certify the class, but we remanded
the case on other grounds. We further noted that the district court nevertheless
could, despite our affirmance, reconsider the class certification issue on remand.
In the meantime—after the district court denied certification but before the
Calderon I appeal was decided—the two-year statute of limitations expired. On
remand, the district court certified the class.
We next determined, in Calderon II, that tolling had ceased when the
district court denied class certification at the outset of the litigation. We held that,
because the Calderon putative class members had failed to protect their rights by
either intervening or by filing individual lawsuits after the district court’s initial
denial of certification and before the two-year statute of limitations had run, the
district court’s subsequent, post-remand certification order could not resurrect the
time-barred claims.
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 15
Odle, 747 F.3d at 321. Although Wal-Mart argued that Calderon II controlled Odle, the Fifth
Circuit distinguished Calderon II: “The Calderon district court initially denied certification,
whereas the California district court in Dukes certified the class at the outset of the litigation.”
Id. The Ninth Circuit’s subsequent instruction to the California district court to consider the
potential for Rule 23(b)(3) certification of a class of former Wal-Mart employees “did not invite
the California district court to reconsider a denial of class certification; rather, it directed the
lower court to consider certifying—for the first time—the carved-out class of former employees
under a different subsection, viz., Rule 23(b)(3).” Id. at 321–22. “The fact that the California
district court did not consider, much less deny, certification of the class of former employees
under Rule 23(b)(3) is a crucial distinction that makes Calderon II inapposite.” Id. at 322.
If Odle and the putative class members were denied the benefit of American Pipe tolling, the
policy of Rule 23 would be undermined by encouraging the class members to make “repetitious
and unnecessary filings . . . to prevent their claims from expiring if certification of the class is
denied.” Id. at 320 (internal quotation marks omitted). Holding that Odle’s claims were timely
filed, the Fifth Circuit reversed the district court’s dismissal of the suit, and remanded for further
proceedings. Id. at 323.
Odle is fully consistent with the analysis in Vertrue and our reasoning in this case.
Andrews—which precluded a subsequent class action after the district court had already denied
class certification at the outset of the litigation—cannot bar the plaintiffs’ present effort to certify
for the first time this timely-filed Rule 23(b)(3) class comprised of current and former female
employees of Wal-Mart in Region 43. See In re Vertrue, 719 F.3d at 479–80; Odle, 747 F.3d at
321–22. The Andrews court recognized, moreover, that the limitations period is suspended if a
class action is filed and a motion to certify is pending. Andrews, 851 F.2d at 150. The Dukes
class action complaint and the original motion to certify a Rule 23(b)(3) class remained pending
in the California district court after the Supreme Court decided Dukes. The limitations period
was suspended under American Pipe, pursuant to the extension order entered by the California
district court after Dukes, until May 25, 2012. The plaintiffs timely filed their EEOC charges
before that date, and they filed suit under Title VII within ninety days of receiving their right-to-
sue letters. Under these circumstances, the plaintiffs’ claims were timely filed. Wal-Mart’s
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 16
reliance on Andrews does not carry the day, and the company’s motion to strike the
Rule 23(b)(3) class allegations as time-barred by American Pipe and Andrews must be denied.
2. The Rule 23(b)(2) class of current female employees seeking declaratory and
injunctive relief in Wal-Mart Region 43
A different question is presented by the request of the named plaintiffs to certify a
Rule 23(b)(2) class of current female employees for the purpose of obtaining declaratory and
injunctive relief against Wal-Mart in Region 43. Wal-Mart contends that Andrews bars plaintiffs
from asserting this new class action. We disagree because Andrews does not control, and
plaintiffs brought the class action in a timely manner. The issue is whether the class action is
precluded by the Supreme Court’s decision in Dukes, not whether it was timely filed.
It is important to recall that the Andrews plaintiffs were unnamed members of a preceding
class action, Brown v. Orr. Andrews, 851 F.2d at 148. When the district court denied class
certification in Brown, American Pipe tolling ended and the applicable 30-day statute of
limitations started running. Id. The Andrews plaintiffs took no steps to protect their rights. Id.
The limitations period expired months before the Andrews plaintiffs filed administrative charges
with their EEO counselor and later filed the new class action. Id. Because the Andrews
plaintiffs’ individual claims were untimely filed, it is no surprise that the district court and this
court refused to allow them to proceed with a new class action on behalf of themselves and
unnamed members of the Brown and Andrews classes.
In this case, plaintiffs took action to protect their rights and the rights of Wal-Mart
employees working in Region 43 when they pursued EEOC charges and filed this class action
during the tolling period set by the California district court. Plaintiffs and the unnamed members
of the Region 43 class were entitled to rely on the California district court to protect their rights
on remand from the Supreme Court. This is particularly true because the nationwide Dukes class
was mandatory under Rule 23(b)(2) and its unnamed members, including plaintiffs and the
Region 43 current Wal-Mart employees, received neither notice of the pending nationwide class
nor a right to opt out of that class. Dukes, 131 S. Ct. at 2558. As directed by the California
district court, plaintiffs timely pursued their own individual claims and those of the unnamed
members of the Dukes class who work in Region 43.
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 17
Wal-Mart contends that footnote 10 in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011),
supports an anti-stacking rule, but Wal-Mart misses the Supreme Court’s point. In Smith, Bayer
Corporation relied on American Pipe and United Airlines, Inc. v. McDonald, 432 U.S. 385(1977), in an unsuccessful bid to bind Smith—“an unnamed member of a proposed but
uncertified class”—as a party to a separate class action suit in which class certification had been
denied. Id. at 2379–80 & n.10. The Supreme Court rejected Bayer’s attempt, holding instead
that unnamed members of a class action are not parties to nor bound by a case judgment in which
certification is denied. See Smith, 131 S. Ct. at 2379–81 & n.11. The Court explained that
American Pipe and McDonald are “specifically grounded in policies of judicial administration”
and “demonstrate only that a person not a party to a class suit may receive certain benefits (such
as the tolling of a limitations period) related to that proceeding. . . . That result is consistent with
a commonplace of preclusion law—that nonparties sometimes may benefit from, even though
they cannot be bound by, former litigation.” Id. at 2379 n.10.
Moreover, the concern that animated Andrews—the abusive use of American Pipe tolling
to resurrect already time-barred individual and class claims—is not present in this case. The
three cases cited in Andrews to support the statement “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 asserted class,” Andrews, 851 F.2d at 149, cannot bear the weight Wal-Mart
places on them. In Korwek v. Hunt, 827 F.2d at 879, the Second Circuit expressed concern about
affording “plaintiffs the opportunity to argue and reargue the question of class certification by
filing new but repetitive complaints.” The court explicitly left open “for another day the
question of whether the filing of a potentially proper subclass would be entitled to tolling under
American Pipe.” Id. Thus, Korwek provides support for a “potentially proper subclass” of the
nationwide Dukes class that current Wal-Mart employees timely filed under American Pipe, as
directed by the California district court.
The Fifth Circuit case, Calderon I, also does not support the bright-line rule Wal-Mart
draws from Andrews, nor does it preclude the instant class claims. The Fifth Circuit recently
explained in Odle that Calderon I did not bar a subsequent class action. Odle, 747 F.3d at 321.
Although the Fifth Circuit initially affirmed the district court’s refusal to certify a class, the court
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 18
“further noted that the district court nevertheless could, despite our affirmance, reconsider the
class certification issue on remand.” Id. at 321 & n.33 (quoting Calderon I (“[W]e in no way
restrict the court’s discretion to change that decision [to deny class certification] on remand. It is
well-settled that decisions on class certification are always interlocutory.”).
The Ninth Circuit case cited in Andrews, Robbin v. Fluor Corp., 835 F.2d at 214, is
likewise inapposite to both Andrews and this case. The Ninth Circuit has since explained that
Robbin “interpreted American Pipe not to allow tolling when the district court in the previous
action had denied class certification, and when the second action sought to relitigate the issue of
class certification and thereby to circumvent the earlier denial.” Catholic Social Servs. Inc.,
232 F.3d at 1147. The Ninth Circuit permitted tolling for a subsequent class claim where “[t]he
substantive claims asserted [were] within the scope of those asserted” in the earlier class action,
satisfying the requirement of notice to the opposing party, but where the plaintiffs were “not
attempting to relitigate an earlier denial of class certification, or to correct a procedural
deficiency in an earlier would-be class.” Id. at 1149. The same is true here, where plaintiffs
represent a class of current Wal-Mart employees in Region 43 who allege that they have been
subjected to a pattern or practice of gender discrimination resulting from regional company
policies and practices that were not addressed in Dukes. These substantive claims are within the
scope of those asserted by the nationwide class in Dukes, and Wal-Mart had notice of them, but
the class seeks neither relitigation nor correction of the earlier class claims.
Korwek, Calderon I, and Robbin thus do not support the blanket rule that Wal-Mart seeks
to draw from Andrews. We have previously rejected the position that Andrews sets a bright-line
rule, and instead looked to the particular facts of the case to determine that “the risk motivating
our decision in Andrews—namely, repetitive and indefinite class action lawsuits addressing the
same claims—is simply not present here.” In re Vertrue, 719 F.3d at 479. Plaintiffs, for
themselves and all other current Wal-Mart employees in Region 43, seek certification for the
first time of a regional class under Rule 23(b)(2), seeking declaratory and injunctive relief, but
not monetary relief, against Wal-Mart.
Precision in characterizing the central issue is critical. The question is not whether the
class claims are timely asserted under the statute of limitations. They are. The issue is whether
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 19
plaintiffs may use the class action device to litigate the claims of unnamed class members. See
Catholic Social Services, Inc., 232 F.3d at 1147. Although the circuits seem to be at odds about
this, Judge Easterbrook has explained that “[t]here is no conflict” in the circuits “on the question
whether a second case may proceed as a class action.” Sawyer v. Atlas Heating & Sheet Metal
Works, Inc., 642 F.3d 560, 563 (7th Cir. 2011) (citing cases). Decisions from various circuits
“concern, not the statute of limitations or the effects of tolling, but the preclusive effect of a
judicial decision in the initial suit applying the criteria of Rule 23.” Id. This issue was addressed
by a Wisconsin district court in Wal-Mart litigation following the Supreme Court decision in
Dukes. Ladik v. Wal-Mart Stores, Inc., 291 F.R.D. 263 (W.D. Wis. May 24, 2013). There Wal-
Mart moved to dismiss the class allegations in the Wal-Mart Region 14 class action. The district
court allowed the timely new class action to proceed to the question of class certification because
“once a plaintiff has filed a complaint that is timely under American Pipe, the tolling issue is
resolved, regardless whether the plaintiff wishes to proceed individually or as a class. Although
the previous class action that failed may have implications on a new motion for class
certification, the statute of limitations is not one of them.” Id. at 268. See also Gomez v. St.
Vincent Health, Inc., 622 F. Supp. 2d 710, 716–23 (S.D. Ind. 2008) (permitting subsequent class
action to proceed).
Similarly, the California district court denied Wal-Mart’s motion to dismiss the
California Regions class and proceeded to the question of class certification. Dukes, 2012 WL
4329009 at *4. That court relied on In re Initial Public Offering Securities Litigation, 483 F.3d
70, 73 (2d Cir. 2007), where the Second Circuit’s “earlier order reversing certification of broad
classes without further instruction did not bar the district court from considering different or
narrower proposed classes in the same action, because district courts ‘have ample discretion to
consider (or decline to consider) a revised class certification motion after an initial denial.’” Id.The court also looked to Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987–88 (9th Cir. 2011),
where the Ninth Circuit reversed class certification, but permitted the district court to consider
whether a different type of class could be certified on remand. But see Love v. Wal-Mart Stores,
Inc., No. 12-61959, 2013 WL 5434565 (S.D. Fla. Sept. 23, 2013) (holding follow-on class action
barred under Eleventh Circuit precedent, Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994),
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 20
but questioning whether recent Supreme Court cases undermine the Eleventh Circuit’s “no-
piggybacking rule”).
The principle we draw from Andrews and the current caselaw we have discussed is that
subsequent class actions timely filed under American Pipe are not barred. Courts may be
required to decide whether a follow-on class action or particular issues raised within it are
precluded by earlier litigation, but we would eviscerate Rule 23 if we were to approve the
blanket rule advocated by Wal-Mart that American Pipe bars all follow-on class actions. See
Sawyer, 642 F.3d at 564. Rule 23 expressly provides that “[a] class action may be maintained if
Rule 23(a) is satisfied and if” one of the subsections of Rule 23(b) is also met. Shady Grove
Orthopedic Assoc. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). “By its terms this creates a
categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as
a class action.” Id. If each unnamed member of a class that is not certified were barred from
ever again proceeding by class action, each class member would have an incentive to multiply
litigation by filing protective suits or motions to intervene at the outset of the initial class action
suit. The weight of individual filings would strain the federal courts. This is precisely the
scenario that “Rule 23 was designed to avoid” in cases where adjudication of claims by class
action is a fair and efficient method of resolving a dispute. American Pipe & Constr. Co., 414
U.S. at 551, 553–54; Wyser-Pratte Mgt. Co. v. Telxon Corp., 413 F.3d 553, 569 (6th Cir. 2005)
(“The purposes of American Pipe tolling are not furthered when plaintiffs file independent
actions before decision on the issue of class certification, but are when plaintiffs delay until the
certification issue has been decided.”).
Plaintiffs and the current Wal-Mart employees of Region 43 are entitled to seek class
certification under Rule 23. All of them were unnamed members of the nationwide Dukes class.
Under American Pipe, the Wal-Mart Region 43 class action brought under Rule 23(b)(2) was
timely filed, and it is not barred: it may proceed if the Rule 23 class action prerequisites are
satisfied. Shady Grove Orthopedic Assoc., 559 U.S. at 398.
Wal-Mart warns us, like Bayer Corporation warned the Supreme Court in Smith, that our
approach will allow serial class action litigation and force corporate defendants to settle to buy
peace. See Smith, 131 S. Ct. at 2381. Wal-Mart claims that it is unfair to permit absent class
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 21
members to stack one class action onto another and benefit from the EEOC claims filed by the
named plaintiffs. But representative claims are the nature of class actions, and the Supreme
Court rejected similar concerns in Smith—as we do here—because “this form of argument flies
in the face of the rule against non-party preclusion.” Id. “That rule perforce leads to relitigation
of many issues, as plaintiff after plaintiff after plaintiff (none precluded by the last judgment
because none a party to the last suit) tries his hand at establishing some legal principle or
obtaining some grant of relief.” Id. But that apprehension need not bar legitimate class action
lawsuits or distort the purposes of American Pipe tolling. Instead, we follow the Supreme
Court’s lead and trust that existing principles in our legal system, such as stare decisis and
comity among courts, are suited to and capable of addressing these concerns.
III. CONCLUSION
For the reasons explained above, we hold, under In re Vertrue, that Andrews does not bar
the Wal-Mart Region 43 Rule 23(b)(3) putative class action brought by the named plaintiffs for
themselves and on behalf of all former female Wal-Mart employees. Their action was timely
filed under American Pipe, and no court has ever ruled on whether certification of the Rule
23(b)(3) class is appropriate. We further hold that Andrews does not bar the Wal-Mart Region
43 Rule 23(b)(2) putative class brought by plaintiffs for themselves and on behalf of all current
female employees of Wal-Mart. Andrews barred a follow-on class action because it was filed
months after the statute of limitations applicable to the named plaintiffs’ individual claims had
run. By contrast, plaintiffs timely filed the Rule 23(b)(2) class action under American Pipe.
Further, the Rule 23(b)(2) putative class may proceed under Smith and Shady Grove if the
necessary class action prerequisites specified in Rule 23 are met.
Accordingly, we REVERSE the order of the district court dismissing the class claims
with prejudice and we REMAND the case for further proceedings consistent with this opinion.
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 22
_____________________________________________________
CONCURRING IN PART AND DISSENTING IN PART
_____________________________________________________
COOK, Circuit Judge, concurring in part and dissenting in part. I agree with the
majority that Andrews does not bar consideration of the proposed Rule 23(b)(3) class. See Maj.
Op. at 9–15; see also In re Vertrue, 719 F.3d at 479–80. I cannot agree, however, that we can
read Andrews so narrowly as to allow the proposed 23(b)(2) class to go forward. Though the
plaintiffs and the district court offer persuasive reasons to doubt the wisdom of Andrews,
I believe it binds us to dismiss the 23(b)(2) claims absent reconsideration by the full court.
See Grundy Mining Co. v. Flynn, 353 F.3d 467, 479 (6th Cir. 2003) (noting that we do not
“enjoy greater latitude” in departing from prior published decisions “where our precedents
purportedly are tainted by analytical flaws”). I would therefore vacate and remand the district
court’s judgment only as to the putative 23(b)(3) class.