Family Dollar Files Petition for Writ of Certiorari

Family Dollar, a national discount store retailer based in Charlotte, was sued by a putative class of female store managers alleging gender discrimination in pay in the Western District of North Carolina. In January 2012, Judge Cogburn dismissed the class claims, holding that they weren’t viable under Dukes v. Wal-Mart Stores, Inc., 131 S. Ct. 2541 (2011). His ruling was consistent with plaintiffs’ own declaration earlier in the case: they said their claims were “virtually identical” to those in the Wal-Mart case after the Ninth Circuit’s favorable decision (but before the Supreme Court’s unfavorable decision). The plaintiffs appealed Judge Cogburn’s ruling under Rule 23(f), and a panel of the Fourth Circuit upheld the district court’s decision to dismiss the class claims pleaded in the original complaint. But in a 2-1 decision, over a 43-page dissent by Judge Wilkinson, the panel majority remanded for the district court to consider whether class claims might be stated in a proposed amended complaint that that district court had denied leave to file. Judge Wilkinson concluded that the majority had “subverted a Supreme Court decision.” The majority sought to distinguish Wal-Mart on grounds that it purportedly involved “lower-level” decision-makers, but Judge Wilkinson found that distinction untenable and said that “the majority fails to address even the rudimentary managerial realities of modern national corporations.” Family Dollar has filed a petition for writ of certiorari with the Supreme Court, contending that the majority did not follow the Wal-Mart decision, and that it had no jurisdiction to decide the propriety of the amended complaint under the principles of “pendent appellate jurisdiction.” The Supreme Court recently requested a response to the petition, perhaps indicating that at least one justice is interested in hearing the appeal, but the Court has not yet decided whether to grant certiorari. Stay tuned.

(John Wester, David Wright and Adam Doerr serve as co-counsel for Family Dollar in this case).