if number thirteen six one nine or are all fit the others are says wal mart wal mart stores incorporated arguments next to the fifteen minutes per side mr rebuttal good morning there are three reasons why the dismissal of the class claims below should be reversed first as this court made clear in its very true decision andrews did not draw the bright line prohibition against american pipe tolly for former class members who bring successive subclass actions that let the district court to dismiss the class claims below the second if andrews does have that application the shady grove and smith against bear decisions supersede any effect that decision may have to deny to the  former members of the class the ability to pursue successive class claims and third andrews turns on its head the merkin pipe tolling doctrine because it creates the very same incentive to file these protective claims class claims while the poor initial class case was pending that american pie polling was intending to discourage so there's no reason why there shouldn't be the same availability american pie polling to members of former plas to permit them to pursue successive subclass claims as it would be to pursue that case didn't proceed to a second class certification ruling in there was another case in texas and nor district of texas where the district court dismissed the class claims relying on a similar case to andrews the salaries are called her own decision and from the fifth circuit regions of it did not did not the case there was a case in miami where likewise the district court then there's a case in wisconsin where the district court actually ruled that the tolling was available to pursue success of class claims based on seventh circuit authority but found that the way the class claims were played in the complaint made it unlikely it would ever be certified and therefore dismissed the class claims and there the claims are proceeding individually and then we have this case was two to sort of occasions observation that there very well may be regional differences between these regions which is one of the reasons it gave for reversing certification an inference is hard to draw that if their certification or denied in one place that it would nestle and deny it anywhere else each of these is all we're seeking to do at this point of course is to have the opportunity to go back before judge stronger and develop the evidence and make a case for class certification and we would get that we want to be able to have that opportunity and we've been stopped at the initial stage because wal mart argued that we don't even get american pie polling and therefore all these claims are untimely had anything been true changes well her true i think is important in this this respect before virtue and certainly at the time the judge trog or issued her decision she didn't have the benefit of this court's decision in for a true and she wrote that she believed that  stood for the stablish a bright line rule prohibiting the availability of american pie polling in successive subclass cases bird true recognize that in fact if this court expressly stated that andrews did not set a bright line rule i think you'd use that language in that case the court said because there was no adjudication on the merits of the class claims previously claims that ha d been dismissed and therefore there had been no the court had not reached class certification american pie polling should continue to be available we contend here that while there was this report obviously reached the issue of class certification it did so on claims that are materially different for purposes of freight the way that the claims are framed the class going into frame and that they're for there has been no determination just in virtue on the susceptibility of these claims to certification and in that respect virtue would support the availably of american pie polling here and the case in california actually go off on american original case dukes versus wal mart it was the case that had been pending there as it is pending in that court then that calliope definition may be redefined by the court actually and continued that's correct the court said we don't have to address the question that we are addressing here because it's a continuation of the same class albeit more narrowly defined and it said therefore those issues are for some other court to address and elastic in the seventh circuit  on the atlas versus sawyer decision to judge easter brooks opinion which i think is instructive here concluded that once a claim if the claim is timely individually then you may be permitted to pursue it  collectively the determination is doesn't turn on whether you can pursue the claims collectively or not and it cites the preclusion issue because there is no other argument and i think inherent in the interest decision is something of a  reasoning which is that if you or a member of a failed class you can't seek to relive a gate class sort of a case of a second time and benefit from american pie polling that seems to be the logic of the andrews decision the seven circuit relying on the seventh circuit relying on the atlas again sawyer decision concluded that once as i said once that you can't be precluded from pursuing a subsume class claim simply because you are a member of a failed class how does your calling or to thread that needle between having adequate notice for the defendant as the underlying policy but still be distinct so that it's not an issue preclusion case so first of all i do think i'm happy to address your question i think judge trog are addressed as very well in her opinion  the grab a minute our claim is still sex discrimination in pay and promotions at wal mart that's the claim that was the crux of the national case which obviously included the claims pending in tennessee  that that is the claim on which wal mart was put on notice has been put on notice since two thousand and one and therefore has had ample opportunity to preserve the evidence indeed for seven of those years the class was certified so it wasn't just a question of whether we were speculating about certification there was a national class certified and affirmed twice by the court of appeals what's different here is that because the supreme court articulated new standards for certification and how it held that the evidence in the record was insufficient to satisfy the requirements or sort of occasion for national class the class here is plugged in framed differently still challenging sex discrimination pain promotions but it's based on challenges to a discrete region the company has a number of different regions this focus on a single region the decision makers in this region on particular practices that have been identified on much more refined statistical analysis be clear that e twenty three a failed that is that there were no questions one or more questions of law common to the clause that is correct the court also concluded that it was impaired been improper to certify the klezmer twenty three b two and if it were going to be certified should be certified to rule twenty three b three that doesn't seem to be at issue here but the only aspect rule twenty three a that was that the good morning honors may it please the court i'm theater j butros jr representing wal mart i'd like to begin by addressing the equity and fairness issues in the case because i know in a case like this that something the court is thinking about we're talking about equitable tolling from american pipe  put it in context the when the lawsuit the duke's case was filed in two thousand and one that told the statue limitations for millions of individuals around the country and up until the duke's decision in the supreme court in two thousand and eleven so for almost ten years there was equitable tolling it suspended the stache limitations for all those individuals who were part of that class once the duke's decision came down in two thousand and eleven everybody knew that the clock began to tick for the individual claims and the individuals in the class counsel mr sellers in the website that they had told the class members that they needed to act individually to preserve their claims it's very clear under american pipe in crown court that that's true they went to judge bryer who was presiding over the duke's case and asked for an extension of equitable tolling to allow individuals to preserve their rights under american pipe and crown cork and judge pryor extended the deadline to may twenty fifth two thousand and twelve instant did so in his words in the interests of justice to ensure there was no confusion for class members in terms of what they needed to do and when they needed to do it by filing see charge by that date so everyone knew what needed to happen and there was a fair mechanism set up and wal mart didn't oppose that we wanted to make sure individuals had the chance to assert their claims  what he ordered that extension was that the class members who have never filed before shall foul charges with the e e o c by may twenty five two thousand and twelve and then you've got your time bar red line and you say well the phipps case was filed on ten to twelve so it's time barred i don't understand that because five twenty five twelve was the deadline to file with the to process they processed her client they issued a right to sue letter on nine thirteen twelve now clearly that's beyond the five twenty five deadline but the deadline was only for filing with the c and the e e o c says you have ninety days from your receipt of a right to sue letter to sue and miss phipps filed within that ninety day period which happened was that the individuals they seek to bring into the class the absent class members did not file claims by may twenty five two thousand and twelve so their claims are time barred but she filed as an appropriate lea time told individual on behalf of a client us all of whom wal mart knew had been in the initial class action so i'm looking at american piping you have two issues you have fairness to defendants are they on notice did they collect evidence do they know what the charges are what the claims are the other side of that is judicial efficiency and here you have a of a client appointive who is not time barred merely bringing a representative action on behalf of the individuals that wal mart already knew had been involved in the klein that was being made why i can buy and why can't she not bring that in a representative capacity a couple of reasons your honor first under american pipe once the class was denied and under this court's decision in hand who is to preserve their individual claims that have been suspended for ten years extension limitations before the extension of patients expired individuals must take the action to preserve their own rights that begs the question the question is who may and the supreme court's teaching about the right to act in a representative capacity do we not now have the ability of a timely filed representative plying if for whom the defendant has notice of the claims does that person not have a right to bring a representative action that person does not have a rep a right to bring a representative action for individuals who are absent from the court who did not themselves take action to preserve the timeliness of their claims as judge brierly order even though the way a class action always works is that one person acts on behalf of absent class members and found directly applied here which plaintiffs agreed if it applies and we believe it does means that the first class action there is tolling the second class action the tolling does not carry over to assertions on behalf of absent a class members who were prevented from filing separately a class action but don't we have to make a determination about any tolling to begin with unless this is the same claim that was in duke's the duke's case did not toll the claims of the individual class members in the entire place cases time barred including miss phipps is going to claim same by the supreme court before it can determine whether this is the same playing different claim and how it should be handled if it hear a different client no your honor judge correctly concluded that the broad outlines the theory is exactly the same in this case we have a chart an honor in our our brief that we cite comparing the allegations it's just a geographically smaller claim it's the same policies it's the same practices it's just like the andrews case that this court decided in one nine hundred eighty eight in said there underlying the underlying bases of the klein is different because what the supreme court said in duke's is i'm looking at this national activity by wal mart and there is just not enough commonality in what these national rules are and i think that case even hinted a little bit that that's because there are regional differences that really are out here well are regional differences referenced in the supreme court case and so now the claim is that this is not a claims preclusion type of issue because even though we are also gender discrimination the claim is that you have different policies and procedures within this particular region and it is those policies and procedures that are discriminatory and in and let me just finish the question for the root what i'm struggling with is andrews was exactly the sign klein andrews was the pace test discriminates racially and the brio on the first case than then the brown case then the follow up from the brown case that led you day on to andrew's was all based on the very same test period with the smaller group except for in andrews it ended up that the stable group was exactly the same as the third so how help when your allegation is that we are relying on a different set of policies and procedures and different activities that are what caused the gender discrimination how is that not distinct and wouldn't  sure it's exactly like the andrews case this is the same policies regions don't have different policies we've documented this and they don't argue with it's the same policies in terms of pay and promotion the ratio issue in the supreme court they're arguing that maybe they were applied differently on a regional basis that's exactly what andrews was the argument was that in the first class action there was no commonality because they were going by the test applied it in different areas and different regions the court said that that that there were differences argue were how they were applied so the new class was limited to one air force base that's exactly the circumstance secondly the supreme court directly one air force this these are the same policies your honor there mr sellers cannot stand up and tell you that he's not talking about the same policies exact same policies there were at issue in the duke's case the company had a national policy regarding pay in promotion and there are you mean well let's look at a regional basis in a smaller group they're not arguing they were special policies in this region and that's a very important point a good question yes ask him i  ok definitely just like judge pryor did in the dukes case itself after you were asking about what happened in the duke's case it wasn't a claim preclusion issue judge bryer allowed mr sellers and his team to put on a full blown evidence and they were unable to show  disparities that difference in pay disparities or promotion disparities with any commonality with any statistical significance and he called it the person most familiar with the case the same arguments with new labels  order whether this sort of action as a class action i think and in order to determine whether what kind of case this is to be considered  we've got to get a certification somehow and no your honor we don't think so this is really put aside with this language must determine who put aside rule twenty three rule twelve allows a defendant to move to dismiss when the claims of the parties are not timely here the absent class we've got about rule twenty three i can we forget it i love rule twenty three but what i'm sorry i don't think we can forget about it the supreme court decided duke's on the basis of rule twenty three i guess eight to you but we have not gotten in this case to the certification process i don't see how we can say what the claim is exactly without doing that no i think it's very straightforward here the name plaintiffs who have timely claims are asking the court to revive claims that have expired in title seven has a very short stature limitations to encourage speedy resolution these claims are fourteen years old they were told for to note the problem counsellor is that all of these women one point five million women have been waiting for eight years for an adjudication on the merits all that time they thought they were represented in a class action that would take t now that the time has run for them to do anything else they were told no you don't have a class action and and i'm struggling with hal you can retro actively deprive them of the opportunity of hearing merits you may be right on the merits you may win on the class certification but that's not what you're here i asking for your here asking for a bright line honor this wasn't where women were told to wait and then suddenly their rights were taken away as i started at the outset this process was created where class counsel judge bryer everyone knew the simple process of ios each charge which is an informal process and to speedy resolution so these rights were taken away everyone was told in the ones widely publicized class action in history valerie yossi charge misfits could have filed a claim here that a class action that included individuals who had made timely charges so this is a fair process and here's what i'm trying to i'm looking at the two policies that american pie created fair fair notice to the defendants which if you've gotten on this gender discrimination claim because you say it's exactly the same coin so you're on notice the other side and the very important thing that american part decided was judicial efficiency so what you're saying to me is you want to order from this court that will tell a district court that if a client of one point million women is due start a fight you district courts can expect to get clines filed or needed to get  filed from one point five million women in order for them to have any right to proceed no your honor here and how can hal if they have to do something individually is that not going to require the him to do something before the court well at some point your honor the supreme court decided that the one point six million women had nothing in common other than their gender in the lawsuit once they were the class was decertified under american pipe and andrews they were required to take the action to preserve their claims and in many did two thousand nationwide according to plan of sixty three in this region so there's not some flood of claims in the us yes judge cook  how how long did there what notice out for the extended time to each individual to preserve their their claim how much time did individuals have from the time they got their notice till the oh to better station up their rights to bring their e e o c batter nearly a year your hon from the day of judge briars order and class counsels notice so there was nearly a year as long in just my role of the clock back so it wasn't just where how much time was left on with not time that i'm interested in it's the judicial efficiency and i efficiency this is the most inefficient use of the class action procedure in world history it's been pending for fourteen years they're making the exact same arguments the us supreme court rejected i know it's hard to say be fair to a big company wal mart litigated this case for ten years in prevail in this report on the exact issue that it was they're now making again now they want to stack the statue imitations tolling again upon the ten year tolling and pulled everybody in it's not good for to have some uncertain rule individuals need to know go protect your rights keep keeping them in cisco but not efficient yet if if if your rule applies and and you're sitting as a plaintive in a gender discrimination client and you're in a client's and the statute of limitations is nearing and you don't have it you have a class certified but it's on appeal what do you have to do to protect your rights nothing until the class is decertified and it's not my rule your honor it's this court's rule in andrew's to rule against us to reverse you will have to reject your fellow panelists in submit to the e e o c and or under title seven which is meant to to out quick resolution of individual claims efficient resolution i don't think a fourteen year process where everybody is held in limbo and no one's getting any relief is good for plaintiffs or wal mart or the judicial system so the policies of title seven including the statue limitations in the supreme court in the gabelli case it wasn't a case as you look at the policies in the statute on tolling two or class actions class action efficiency has been but i can't remember whether there was any discussion in the group opinion about equitable nature of towing and so on and that but i can't was there any andrews discussed american pipe in the unanimous agreement of other pipe doctrine is a form of equitable tolling there is no other form of tolling courts have the equitable power to be fair to suspend the running the statue limitations before it it expires to achieve other objectives like efficiency that's twelve decision by briar by judge pryor in do a lie all of the case to reach the commonality question and it did it because it was the court overseeing the class action and it was able then to alter the class definition which is standard under rule twenty three so my question to you is if there is a class action filed anywhere in the nation that extends across the nation and there is after the time period has run there is a reversal of a grant for example the n r one can end up with the rights of individuals depending on where they live because if you live in the jurisdiction where the case was originally filed then the class action the class definition may be altered by the judge and that one goes on it's a class action but if you happen to live in tennessee in this case because you're not in the jurisdiction that initially had the class action you're out of luck  you specific provisions that are based on jurisdiction so venue is important in these cases but you don't dispute that it's a difference if you're in the jurisdiction where the class was originally filed your case may go forward in a representative capacity there are we actually disagree with respectfully with judge bryer on that point that's what he held that's what he held that's what he had let you go forward in our particular situation the people the women in representative capacity you've helped him with a get to a point i really wanted to get to because it's a premise of the argument on the other side that unnamed plaintiff has in amps and class members have a right to a class proceeding e in any way undermine in the least this court's decision in the end shady grove go said that winter in federal court rule twenty three applies to herman whether a clash be certified as opposed to state court rules that's not the issue in this case shady grove did not mention tolling and it's a in shady grove said substance still matters so under shady grove and rule twenty three you could never certify a class where the name plaintiff's claim is timely and the unnamed plaintiff the absent class members claims ar timely shady grove supports us we judge marriage point rule twenty three is rule twenty three it's an important rule and that's all shady grove sat as with respect to smith smith says issue preclusion doesn't bar  unnamed individuals who weren't parties we agree with that smith includes a footnote ten on tolling that says once the class is decertified individuals may go forward and file their own suit so smith supports on its lawyer latics and the seventh circuit comes in and see this is not this is not an american telling issue this is an issue preclusion sawyer judge easterbrook got it wrong he predicted that smith which was pending at the time would find issue i think he thought they would so he found there was an issue preclusion that would bar an absent class member from a subsequent class smith ruled the opposite way so sawyer is not good law but the result there would support our it that if that given the supreme court's ruling if they wish to proceed they ought to proceed individual to bring their claims virtually every one of them filed charges alleging a pattern of practice of discrimination when they file charges with the of c so there was no formal notice of the sort that perhaps will support you if you think of notice in the form that mr bush is referring to rule twenty three notice there was no such notice this wasn't an announcement to the world go file your claims the best we could do because we didn't have a note form of this provision just put something on a website and mr boutros keeps referring it to his notice it was notice to make sure women who are not knowledgeable about the law understood what happened and there had never been a class t had never been a class no dissent absolutely because the ruling the class sort of occasion was up on appeal before twenty three notice ever was issued to begin with so there was a lot of confusion there was certified was upheld by the court of appeal supreme court reverse we were just trying to make some clarity so that women who wanted to proceed could do so and as i said the two thousand plus women who filed charges around the country about one hundred of whom filed in within the tennessee region all alleged pattern or practice claims they all to challenge the with respect to the regions where they brought their claims not nationally so i think that's how does this work in the judicial efficiency argue it just appears to me that that is i understand that justice pale filed a concurrence that's if there's a danger of abuse here but the majority say judicial efficiency is the deal that we're concerned about the consequence here of being allowed to stand in this case is it will lead people in the future when there's a class case pending in their absent members of the proposed class and if it's a title seven case and a hundred eighty days are coming up and most class certification decisions are not made the hundred eighty days they're going to have to think about whether they need to file their own separate action alleging a pattern or practice of discrimination just to be sure they don't lose american pie polling in the event certification tonight or it's granted in ten years later there's multiple appellate review we will have that we will have the very multiplicity of cases filed that merck comply poling crown cork we were intending to  the protective filings would have to go in the jurisdiction that the individual lived right so we have is so if you have a case if the if a national case is brought in tennessee and i'm in wisconsin i'll have to my national case in wisconsin and somebody else will have to file in miami and somebody else out file in florida you're not just a matter of finally this national cases are these these regional patent practice cases but i have to file them all over the country the one single national case could spawn a whole host of subsidiary class cases where that the only way to retiring the ability to move forward is a client us under the enders under the way that that  that wal mart would like this court to interpret the entrance decision that's correct let me address also a question which i think you want me to address which has to do with what we know about the claims mr boutros made this assertion that the claim that the  policies at issue here are the same throughout the country which of course is quite interesting because they argued strenuously to the supreme court otherwise the we don't know frankly what the policies are in tennessee we haven't done discovery here the discovery in the national case was focused on the extent of any national policies or evidence obviously didn't persuade the supreme court to uphold commonality even though it did the lower courts so we are simply seeking the opportunity to come back to the district court conduct the discovery that we were allowed to conduct in california to see i can tell you the informal information that provided our by our clients is there are some variations in the way that some of these policies were ministered in tennessee from california the supreme court you are correct in your recollection judge strange supreme court said there are regional variations it was one of the reasons it cited for why the national case couldn't or didn't say what they are would be helpful but well we didn't really know at the time because done of us had done a regional regional scupper what they were looking at i think was they were variations by region in  overcome that problem well as i said before judge merit we haven't had discovery so what we found when we filed a complaint we need the same type of practices that were being challenged we supplied some additional evidence more refined  statistical evidence to show disparities at the regional level rather than nationally we're not suggesting that we're we're challenging we're not challenging the pay practices the promotion practices the supreme court made clear and i think judge briar got it right in this respect  that what we had was a failure of the evidence to support a finding of commonality it was not a finding that we could never show these kinds of practices were common it was the evidence we supplied failed the the pay and promotion practices operated we learn for instance in california whether we're going to find it here but just alleging how they operate but create a principle of conduct that will but the what we're challenging are the factors that the company provides to the managers to guide their discretion in determining the pay and promotion decisions and whether those factors are the same in tennessee as they were in california or elsewhere we don't know what we do know is that challenging that i can take them with reynolds decision from the seventh circuit makes clear for instance on class sort of occasion not on on you asking a question going to whether we could ultimately get a class certified that challenging discrete factors that you could you could have a practice that has discretion and it's challenged in susceptible to class certification with reynolds in the seventh circuit makes that clear factor is that illegal your honor i don't i didn't identify oh i don't know in tennessee i haven't been given the discover us before the question of whether we can have that opportunity i can't name the particular factors without doing some discovery i was only able to name factors in california when we did the discovery we never had the regional discovery to be able to name that now we have a den of fide area of about if you have a well look know i believe there are based on what our clients have told us but i can't tell you because we haven't done the kind of discovery i think we'd be asked to good to be alleging practices that would ordinarily depend on discovery before we have the discovery what you're looking what you're looking for here is the opportunity to try to do that yesterday's your best argument under is it under virtue route or are you also suggesting that your honor i think there are several options we provided you i think the simplest most straightforward is to follow the virtue of model recognize as virtue did that there are certain exceptions to andrews that where you are not seeking to adjudicate the same type of class claims that were presented before it doesn't create the problem that enters was addressing and as a result we can proceed with american pie polling here because this was a sphere significant change the law that led to a significant change in the way the plans claims