During this time, another major class action for gender discrimination was going on, the Dukes v. Wal-Mart case. Dukes v. Wal-Mart was a class action sex discrimination case brought on behalf of 1.5 MILLION female employees of Wal-Mart. At the time, that case had been reversed in favor of the Plaintiffs by the Ninth Circuit on the class action certification issue, but Wal-Mart took the case to the U.S. Supreme Court for . . . ahem . . . further consideration . . . .
Meanwhile, in the Family Dollar case, the trial court in North Carolina originally denied Family Dollar's motion for judgment against the Plaintiffs. HOWEVER, it appears that Family Dollar succeeded in getting the case transferred to yet another different judge who would . . . ahem . . . maybe see the case differently. And indeed the new judge did. That is because, while the case was being stalled and moved around to different courts and different judges (it appears here that Family Dollar's attorneys may have been stalling for time and awaiting the U.S. Supreme Court's decision in the Wal-Mart case), the Supreme Court reversed that Ninth Circuit's decision in Wal-Mart and threw out the Plaintiff's class action claims.
The Court in Wal-Mart held that the Plaintiffs could not meet the commonality requirement for class action certification where they were all from different districts and the decisions that were allegedly discriminatory were made by different district managers. In other words, as relevant to Family Dollar, if one manager decides to pay you less because you're a woman, and a different manager decides to pay somebody else less because she is a woman, your claim does not have enough in common with the other woman's claim, even though you are working for the same company and have the same claims, because there are different decision makers involved, so you cannot bring the claims together in the same law suit (or at least not as a class action).
Well, the trial court in the Family Dollar case cited the new Wal-Mart decision when it threw out the Plaintiffs' claims by granting Family Dollar's motion for judgment and denying the Plaintiffs' motion to amend their Complaint, thereby axing their entire case. This was despite the fact that the Wal-Mart decision essentially added new and additional requirements to what must be included in the Plaintiffs' original complaint, but the Plaintiffs were not allowed to correct their original Complaint to account for those new requirements. The OTHER Catch-22 of course, was the fact that the Plaintiffs in Family Dollar were alleging that it was the centralized corporate policies of Family Dollar that led to the pay discrimination (the same policies in every district), yet they were never given the chance to pursue that theory or those allegations. The ultimate Catch-22 with these cases (and with all the new and additional pleadings requirements being erected by the courts in recent years, the overall point of which, imho, is just to make it more difficult for individuals to sue big corporations), is that one cannot prove one's theories in the absence of discovery during litigation (the process by which the parties obtain information from the other side to prove their respective theories of the case), yet they are never given the chance to engage in any discovery which they would need to prove their case, because their claims are axed at the outset, based on the fact that they have not put enough established information (a.k.a PROOF that they don't yet have) IN THEIR COMPLAINTS! Argh.
So, on the basis of Wal-Mart, the trial court in Family Dollar finally axed the Plaintiffs' claims.
BUT THEN, in came the Fourth Circuit, which REVERSED the trial court's denial of the Plaintiffs' request to amend their Complaint. As the Fourth Circuit observed, even if lower level managers are making different subjective and discriminatory decisions, they are not the ones setting the policies for the entire corporation, so if the policies themselves are discriminatory, then that equates to commonality for class action purposes. And, as the Court also noted, the Plaintiffs were alleging that higher level managers were also making discriminatory decisions that affected multiple districts and plaintiffs. Again, commonality. The court used these and other facts to distinguish the Wal-Mart case from the Family Dollar case. Simply put, the Plaintiffs should at least get the CHANCE to make the allegations they need to make to satisfy the Wal-Mart class action requirements (which, imho, are now essentially new and additional requirements which are NOT set forth in the federal class action rule), because giving them that chance is "necessary to ensure meaningful review."
The Court also shot down Family Dollar's arguments that allowing the Plaintiffs to amend their complaint would be prejudicial to Family Dollar. The Court pointed out that Family Dollar cannot turn around and claim prejudice now when Family Dollar was the one prolonging the litigation all along. Bam. Eat it and like it, Fortune 500 friends!
So now the Plaintiffs can amend their complaint and revive the class action lawsuit. Thank you, Fourth Circuit! Here is a link the the Fourth Circuit's opinion:
And for point-and-counterpoint purposes, here is a pro-corporate rant about how horrible this decision was:
Supreme Disregard in Scott v. Family Dollar - The Wall Street Journal
Now, we can probably expect Family Dollar to try to take it up with the Supreme Court. . . .
