Walmart v. Dukes is one of those landmark decisions that will confuse law students for decades to come, but it was more than an interesting legal citation. The Supreme Court's holding decertified a class of 1.5 million current female employees of the retail giant, shortly after the Ninth Circuit had already removed a separate group, former employees, from the class.
It's this last group, led by named plaintiff Stephanie Odle, which will continue its fight in a district court in Dallas, after the Fifth Circuit revived her putative class action, approximately thirteen years after she first brought suit as part of the larger Dukes class.
Brief Recap of a Long History
Over the last thirteen years or so, there's been a lot of ink spilled on class certification and statute of limitations, but here's the short version:
- The Ninth Circuit, in 2010, ruled that Odle and other similarly situated plaintiffs could not be a part of the class. As former employees, injunctive relief, which was one of the remedies requested in Dukes, would not benefit them. However, the circuit court did remand the case for consideration of whether the former employees could be certified as a separate class under Rule 23(b)(3).
- The Supreme Court, in 2011, decertified the larger, current-employee class, clarifying (and making more strict) the standard of commonality.
- The Dukes plaintiffs, after the Supreme Court nixed their class, were given until October 28, 2011 to file suit by a California District Court.
- Odle filed a separate class action in October 28, 2011.
Got all that? Wal-Mart is arguing that, because Odle wasn't part of the SCOTUS class, that she had 90 days to file her individual lawsuit. The district court agreed, holding:
Once the Ninth Circuit rejected that class and issued its Mandate, it was clear that Odle and other former employees were no longer a part of that class action lawsuit. At that time, the putative class members had "no reason to assume that their rights were being protected" because there was no longer any class of former employees on which they could rely [...] At that point, Odle was required to file a new lawsuit in order to protect her claims, and her failure to do so within the statute of limitations now bars her claims.
Ninth Circuit's Remand Wasn't a 'Final Adverse Determination'
The key to the Fifth Circuit panel's reversal of the district court was a narrow interpretation of finality and timing. Wal-Mart cited Calderon II, where a district court decertified a class at the outset and the statute of limitations was not tolled throughout the appeal. Here, while the Ninth Circuit carved a chunk of former employees out of a class, that court neither denied class certification outright (it remanded for consideration of the issue), nor did it issue a "final adverse determination" that would end the SOL tolling, as the district court in Calderon II did.
That's a heck of a narrow line though, isn't it? The purpose of tolling under American Pipe is to prevent a mad dash to the court, and a clogged docket full of individual lawsuits, when a class action is pending. That would seem to be exactly the case if tolling doesn't apply during an appeal (thanks to Calderon II.) And this decision, while closer to the American Pipe rationale, certainly complicates things.
- Odle v. Wal-Mart (Fifth Circuit Court of Appeals)
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