By Carlyn Kolker
Feb 26 (Reuters) - Last week, a group of plaintiffs suing
Wal-Mart for alleged discrimination of women across its stores
were dealt a blow: A federal judge in Nashville, Tennessee,
threw out the plaintiffs' proposed class action.
U.S. District Judge Aleta Trauger ruled that any class
action claims cases stemming from the Dukes v. Wal-Mart
litigation, which was dismantled by the U.S. Supreme Court in
2011, were barred by the statute of limitations.
The same day as that ruling, plaintiffs' lawyers filed a
similar case against Wal-Mart alleging discrimination against
women, also seeking class action status, this time in the U.S.
District Court for the Western District of Wisconsin.
That filing is a signal that plaintiffs' lawyers are not
giving up their fight against Wal-Mart as district and circuit
court judges grapple with how to interpret the Dukes decision.
After the Supreme Court ruled that the nationwide class of
women in the Dukes case could not sue as a group, plaintiffs
tried to tailor cases to smaller, regional classes of women.
They filed sex-discrimination cases in California, Tennessee,
Texas and Florida.
Judges in Tennessee and Texas rejected the plaintiffs'
claims on the statute of limitations grounds. In California,
U.S. District Judge Charles Breyer allowed the plaintiffs' case
to proceed but said he would rule later about whether the case
could be certified as a class action. In Florida, a judge has
yet to rule on Wal-Mart's motion to dismiss.
According to Gerald Maatman of Seyfarth Shaw, it's no
surprise that plaintiffs' lawyers selected Wisconsin as their
next battleground in the post-Dukes war.
The 7th Circuit Court of Appeals, which encompasses
Wisconsin, Illinois and Indiana, has developed some of the most
plaintiff-friendly law post-Dukes, according to Maatman, who
represents employers in litigation and writes an annual report
chronicling employment class action cases.
In the 2012 decision in McReynolds v. Merrill Lynch, which
reversed a district court's decision to deny class
certification, the 7th Circuit paved the way for class actions
alleging that a small group of centralized managers perpetrated
policies that discriminated against certain groups of employees,
according to Maatman.
"McReynolds is the key case - the reason why they filed in
Wisconsin," he said. For plaintiffs' lawyers, "it's about where
do we have a chance to certify our class and make our theory
Joseph Sellers, the Washington lawyer who represents the
plaintiffs in the Wisconsin case, said the timing of the filing,
coming on the same day as the negative ruling from Tennessee,
was pure coincidence.
His clients and the evidence they had about treatment at
Wal-Mart stores in the region were the "primary driving force"
for filing in Wisconsin, according to Sellers. But he noted that
post-Dukes case law in the 7th Circuit is "the most developed."
While the McReynolds case was more plaintiff-friendly, another
case from the circuit is less favorable to plaintiffs, he said.
Sellers also said the 7th circuit has developed case law that's
more favorable to the plaintiffs on whether they can continue
their claims under the statute of limitations issue.
Ted Boutrous, an attorney at Gibson, Dunn & Crutcher who
represents Wal-Mart, said plaintiffs' lawyers are
misinterpreting 7th Circuit holdings on the statute of
limitations, and are better served pursuing each individual
plaintiff's case separately, rather than "re-litigating" the
issues in the original Dukes case.
The Wisconsin case is Ladik v. Wal-Mart Stores Inc, U.S.
District Court for the Western District of Wisconsin, No.
For plaintiffs: Joseph Sellers of Cohen Milstein Sellers &
Toll, James Kaster of Nichols Kaster and Jocelyn Larkin of the
For the defendants: Not immediately available.