Wal-Mart Follow-on Discrimination Suit Gets Another Shot

By Perry Cooper

A group of women in Texas alleging Walmart discriminated against them may see their suit revived after the Fifth Circuit Dec. 1 refused to reconsider its ruling that the lower court has jurisdiction over their case.

The case is one of many suits seeking certification of regional classes after the U.S. Supreme Court’s 2011 decision in Wal-Mart Stores Inc. v. Dukes. There the court reversed the certification of a nationwide class of female Walmart employees claiming sex discrimination.

The lead plaintiffs in the Texas case settled their individual claims with Wal-Mart Stores Inc. and voluntarily dismissed the case. Unnamed members of the would-be class moved to intervene so they could appeal an earlier denial of class certification and continue pursuing their claims.

The district court said it the dismissal closed the case and it no longer had jurisdiction to consider the motion to intervene.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed March 27. It relied on a then-newly issued Fifth Circuit decision that “rejected the suggestion that intervention is always improper after a case has been dismissed.”

Walmart asked the panel or the full Fifth Circuit to reconsider.

No Rehearing

The Fifth Circuit ruled 5–9 not to rehear the case.

Judge James E. Graves Jr., joined by two other judges, concurred in denial of rehearing en banc, arguing the court properly applied its precedent.

Judge Edith H. Jones, joined by four other judges, dissented from denial of rehearing en banc. “The bottom line is that the district court indeed lacked jurisdiction to rule on the would-be intervenors’ attempt to keep alive a dispute that the parties had the unbridled right to settle,” she argued.

The decision threatens “to cause further uncertainty about whether parties may finally dismiss cases voluntarily without risk of further merits litigation,” Jones wrote. “The uncertainty in turn threatens the very possibility of settlements, especially in complex, high-stakes class actions.”

Gillespie Sanford LLP and Cohen Milstein Sellers & Toll PLLC represented the employees.

Gibson, Dunn & Crutcher LLP represented Walmart.

The case is Odle v. Flores , 2017 BL 430935, 5th Cir., No. 16-10347, 12/1/17 .

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com

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