The case is Love v. Wal-Mart, decided on 9/4/13 by District Court Judge Robert N. Scolar, Jr. of the Southern District of Florida. The class is yet another subclass of plaintiffs from the original Dukes v. Wal-Mart class. This is fifth rejected attempt by Dukes subclass members to file new class action claims. The ruling may be viewed  here.

The headline ruling is that the filing by the Love plaintiffs was untimely in accordance with the 11th Circuit’s “No-Piggybacking” rule from Griffin v. Singletary (1994) [17 F.3d 556], a rule adopted in other circuit courts. In the words of Judge Scolar:

Plaintiffs’ class claims run afoul of the no-piggybacking rule. Plaintiffs were members of the original Dukes class. And Plaintiffs now assert class claims for a regional subclass that was part of the nationwide class certified, and then decertified, in Dukes. Plaintiffs’ class claims are time-barred – the limitations period for class claims was not tolled, and Plaintiffs cannot assert class claims that were previously asserted and rejected in Dukes.

The plaintiffs argued that the Griffin rule applies only to issues that are “identical to those asserted in the initial lawsuit” and that their claims are different that those originally asserted in Dukes, to which Judge Scolar replied:

Nothing in Griffin restricted the “no piggyback rule” to identical class claims. The Eleventh Circuit’s rationale for adopting the “no piggybacking rule” was to prevent prolonged and successive class-action litigation. It prevents previous class members from pursuing their claims as class claims, regardless of whether the class is framed in a different manner or the class itself  is different.

The plaintiffs also argued that more recent Supreme Court rulings in Shady Grove v. Allstate (2009) [559 U.S. 393] and Smith v. Bayer (2011) [131 S. Ct. 2368] implies a “bright-line” rule that class actions may proceed if individual actions are allowed to proceed, but Judge Scolar ruled that both cases addressed rules of Federalism, and neither case undermines the Griffin ruling.

At this point, one would have to say that the attempt at “sub-classing” Dukes v. Wal-Mart has been made and has failed in several venues with various lines of reasoning and is likely a dead issue going forward.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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