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Protesters in front of the Supreme Court while the class action lawsuit Dukes v. Wal-Mart is being argued inside. REUTERS Larry Downing

Wisconsin is next Wal-Mart battleground

2/26/2013 COMMENTS (0)

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 stick."

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. 13cv00123.

For plaintiffs: Joseph Sellers of Cohen Milstein Sellers & Toll, James Kaster of Nichols Kaster and Jocelyn Larkin of the Impact Fund.

For the defendants: Not immediately available.


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