Last fall, we asked if time was on Wal-Mart’s side as it battles the spate of regional sex discrimination class actions that were filed in the wake of the U.S. Supreme Court’s decision in Wal-Mart v. Dukes. The company and its lawyers at Gibson, Dunn & Crutcher certainly think it is, and now they’ve gotten a second judge handling one of the mini-Dukes cases to agree. On Wednesday U.S. District Judge Aleta Trauger in Nashville, Tenn., dismissed class claims brought by three former female Wal-Mart employees, concluding that they didn’t survive the statute of limitations. The plaintiffs had previously been members of the original nationwide Dukes class, which the Supreme Court threw out in its landmark June 2011 decision tightening the requirements for class standing. The lawyers who spearheaded the Dukes litigation at Cohen Milstein Sellers & Toll and the Impact Fund filed the Tennessee case in October 2012, rehashing their original allegations of discrimination in pay and promotions and also adding claims specific to a Wal-Mart retail region that encompasses Tennessee and parts of Alabama, Arkansas, Georgia, and Mississippi. In order to defeat Wal-Mart’s arguments that their class claims were time-barred, the Tennessee plaintiffs cited American Pipe & Construction Co. v. Utah, the Supreme Court’s 1974 decision allowing class action litigation to toll the statute of limitations. Under American Pipe, they claimed, the clock was stopped while the original Dukes class action was pending, allowing them to re-file once that class was decertified without running afoul of statutory time limits for their claims. Wal-Mart also relied on American Pipe in it’s motion to dismiss. But the company’s lawyers cited a 1988 ruling by the U.S. Court of Appeals of the Sixth Circuit, Andrews v. Orr, to argue that American Pipe tolling only applies to future individual claims, not to class claims. Wal-Mart also asserted that the Tennessee plaintiffs’ class claims were essentially identical to those that failed the commonality test in Dukes. Judge Trauger never ruled on the commonality question, since she agreed with Wal-Mart that the class claims were too stale. "The Sixth Circuit has not squarely revisited its holding in Andrews and the plaintiffs here appear to concede that, unless the court finds that Andrews is no longer good law, it bars the class claims here," wrote Trauger. The judge did note, however, that several courts in the Sixth Circuit have limited or restricted the application of the Andrews decision in subsequent cases, and she wrote that Andrews "merits refinement" so that plaintiffs don’t lose the right to sue on behalf of a subclass that the original court did not address. As we reported, Gibson Dunn scored a parallel victory in October in another Dukes-progeny case, when a federal judge in Dallas dismissed class claims from a proposed class of approximately 50,000 Wal-Mart employees, finding them to be time-barred. In September, however, a U.S. district judge in San Francisco refused to dismiss a purported class action brought by former Wal-Mart employees in California, including named plaintiff Betty Dukes herself. A fourth purported class action is pending in U.S. district court in Florida, and a fifth was filed just Wednesday in U.S. district court in Madison, Wisc. Gibson Dunn’s Theodore Boutrous Jr., who argued the Dukes appeal at the Supreme Court, was predictably happy with Wednesday’s ruling. "We’re very pleased that the judge, like the judge in Texas, held that American Pipe tolling doesn’t apply to subsequent class actions. That’s the universal view," said Boutrous, who is also representing Wal-Mart in the other various mini-Dukes cases. Plaintiffs’ lawyer Joseph Sellers of Cohen Milstein told us he planned to file an appeal in the hopes of getting the Sixth Circuit to reevaluate Andrews. "The court expressed an appreciation and some agreement with our position, but felt constrained and bound by the Sixth Circuit authority," said Sellers. "This creates an opportunity for us to take the matter directly to the Sixth Circuit." After trips to the Ninth Circuit, the Supreme Court, and now district courts around the country, the Dukes plaintiffs may be down, but they’re still not out.
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