1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0140p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

CHERYL PHIPPS; BOBBI MILLNER; SHAWN GIBBONS, 

on behalf of themselves and all others similarly 

situated, 

Plaintiffs-Appellants, 

v. 

WAL-MART STORES, INC., 

Defendant-Appellee. 

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No. 13-6194 

Appeal from the United States District Court 

for the Middle District of Tennessee at Nashville. 

No. 3:12-cv-01009—Aleta Arthur Trauger, District Judge. 

Argued: May 1, 2014 

Decided and Filed: July 7, 2015 

Before: MERRITT, COOK, and STRANCH, Circuit Judges. 

_________________ 

COUNSEL 

ARGUED: Joseph M. Sellers, COHEN MILSTEIN SELLERS & TOLL, PLLC, Washington, 

D.C., for Appellants. Theodore J. Boutrous, Jr., GIBSON, DUNN & CRUTCHER LLP, Los 

Angeles, California, for Appellee. ON BRIEF: Joseph M. Sellers, Christine E. Webber, 

COHEN MILSTEIN SELLERS & TOLL, PLLC, Washington, D.C., George E. Barrett, David 

W. Garrison, Scott P. Tift, Seth M. Hyatt, BARRETT JOHNSTON, LLC, Nashville, Tennessee, 

Jocelyn D. Larkin, THE IMPACT FUND, Berkeley, California, for Appellants. Theodore J. 

Boutrous, Jr., GIBSON, DUNN & CRUTCHER LLP, Los Angeles, California, Rachel S. Brass, 

GIBSON, DUNN & CRUTCHER LLP, San Francisco, California, Mark A. Perry, GIBSON, 

DUNN & CRUTCHER LLP, Washington, D.C., Karl G. Nelson, GIBSON, DUNN & 

CRUTCHER, Dallas, Texas, for Appellee. 

 STRANCH, J., delivered the opinion of the court which MERRITT, J., joined, and 

COOK J., joined in part. COOK, J. (pg. 22), delivered a separate opinion concurring in part and 

dissenting in part. 

>
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 2

_________________ 

OPINION

_________________ 

STRANCH, Circuit Judge. This putative class action lawsuit began after the Supreme 

Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). There the Supreme 

Court rejected certification, under Federal Rule of Civil Procedure 23(b)(2), of a nationwide 

class of current female employees of Wal-Mart Stores, Inc., who alleged that Wal-Mart 

discriminated against them in pay and promotions based on their gender. Plaintiffs Cheryl 

Phipps, Bobbi Millner, and Shawn Gibbons, unnamed class members in Dukes, thereafter filed 

suit against Wal-Mart in federal district court in Tennessee alleging individual and putative class 

claims under Rule 23(b)(2) and Rule 23(b)(3) on behalf of current and former female employees 

in Wal-Mart Region 43. Plaintiffs claim gender discrimination in pay and promotions as the 

result of regional Wal-Mart management policies and decisions. 

Before us for review is the district court’s order granting Wal-Mart’s motion to dismiss 

the class claims as time-barred under the tolling principles of American Pipe & Construction Co. 

v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354 (1983). 

This interlocutory appeal concerns only whether the plaintiffs may initiate this suit. Whether the 

proposed classes are appropriate for certification is not at issue here.

We hold that the putative class claims are not barred by American Pipe or Crown, Cork 

& Seal Co. and that the case before the district court may proceed. Accordingly, we REVERSE 

the district court’s order dismissing the class claims under Federal Rule of Civil 

Procedure 12(b)(6) and we REMAND the case to the district court for further proceedings. 

I. PROCEDURAL HISTORY

Wal-Mart is the country’s largest private employer, operating approximately 3,400 stores 

and employing more than one million people. Dukes, 131 S. Ct. at 2547. Wal-Mart divides its 

stores into nationwide divisions and subdivides the divisions into regions. Id.

On June 8, 2001, six named plaintiffs filed suit under Title VII of the Civil Rights Act of 

1964, as amended, in the Northern District of California on behalf of all former and current 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 3

female employees of Wal-Mart. Id. The suit alleged a company-wide pattern or practice of 

gender discrimination in pay and promotions since December 26, 1998.1 Id. at 2548. The 

plaintiffs also claimed that management decisions concerning pay and promotions 

disproportionately favored men, leading to unlawful disparate impact on female employees. Id. 

The plaintiffs further claimed that, because Wal-Mart knew of this discriminatory effect, its 

refusal to modify the corporate culture amounted to unlawful disparate treatment. Id. The 

plaintiffs sought certification of a nationwide class of current and former female employees 

under Rule 23(b)(2), or alternatively, under Rule 23(b)(3), and requested injunctive and 

declaratory relief, backpay, and punitive damages. Id. at 2548, 2561 n.1 (Ginsburg, J., 

concurring in part and dissenting in part). 

In 2004, following extensive discovery, the district court certified a nationwide class 

under Rule 23(b)(2) for purposes of liability, injunctive and declaratory relief, back pay, and 

punitive damages. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 187–88 (N.D. Cal. June 21, 

2004). In 2007, the Ninth Circuit affirmed, Dukes v. Wal-Mart, Inc., 509 F.3d 1168, 1193 (9th 

Cir. 2007), but on rehearing en banc, the Ninth Circuit affirmed in part and remanded in part. 

Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 628 (9th Cir. 2010). The court affirmed the 

district court’s certification of a nationwide class under Rule 23(b)(2) only for current Wal-Mart 

employees—defined as those employed on the date the complaint was filed—with respect to 

their claims for declaratory and injunctive relief and back pay. Id. at 624. The court remanded 

the case to the district court to consider whether certification under Rule 23(b)(2) or Rule 

23(b)(3) was appropriate for the punitive damages claims of current employees and whether an 

additional class or classes should be certified under Rule 23(b)(3) for former employees—

defined as those no longer employed on the date the complaint was filed. Id. The court reasoned 

that “putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ 

complaint was filed do not have standing to pursue injunctive or declaratory relief,” and it was 

 1

“In a pattern-or-practice case, the plaintiff tries to ‘establish by a preponderance of the evidence that . . . 

discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice.’” 

Dukes, 131 S. Ct. at 2552 n.7 (quoting Teamsters v. United States, 431 U.S. 324, 358 (1977)). If she “succeeds, that 

showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and 

will justify ‘an award of prospective relief,’ such as ‘an injunctive order against the continuation of the 

discriminatory practice.’” Id. (quoting Teamsters, 431 U.S. at 361). 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 4

“difficult to say that monetary relief does not predominate with respect to claims by plaintiffs 

who lack standing to seek injunctive or declaratory relief.” Id. at 623. 

The California district court did not have an immediate opportunity to consider the issues 

remanded by the Ninth Circuit. The Supreme Court granted certiorari, and in June 2011 reversed 

the certification of the nationwide class of current Wal-Mart employees under Rule 23(b)(2). 

Dukes, 131 S. Ct. at 2561. The Court held that the plaintiffs did not demonstrate questions of 

law or fact common to the class as required by Rule 23(a)(2) to warrant certification of a 

nationwide class of current employees. Id. at 2252–57. The Court reasoned that, because the 

plaintiffs had not provided “significant proof” of a nationwide policy or other “specific 

employment practice” that discriminated against all 1.5 million class members in the same way, 

the case was not suitable for nationwide class treatment. Id.

The Court further concluded that the plaintiffs’ requests for backpay were improperly 

certified under Rule 23(b)(2) because such relief was not incidental to injunctive or declaratory 

relief, and “individualized monetary claims belong in Rule 23(b)(3).” Id. at 2557–58. The Court 

outlined the differences between classes certified under Rule 23(b)(2) and Rule 23(b)(3), noting 

that (b)(3) requires notice to class members and a chance to opt out, while (b)(2) does not. Id. at 

2558. Accordingly, the Supreme Court reversed the Ninth Circuit’s certification of a nationwide 

class of current Wal-Mart employees under Rule 23(b)(2). Id. at 2561. 

 After Dukes, the plaintiffs promptly filed a motion in the California district court to 

extend tolling of the statute of limitations under American Pipe & Constr. Co., 414 U.S. at 553–

54. The district court granted the motion in part, providing that all class members who possessed 

right-to-sue letters from the Equal Employment Opportunity Commission (EEOC) could file suit 

on or before October 28, 2011. Dukes v. Wal-Mart Stores, Inc., No. C 01-02252 CRB, Order at 

*1–2 (N.D. Cal. Aug. 19, 2011). The court further provided that all class members who had not 

filed administrative charges with the EEOC were required to do so on or before January 27, 2012 

in non-deferral states and on or before May 25, 2012 in deferral states. Id.

 The Dukes plaintiffs then amended the complaint in the California case to narrow the 

scope of the proposed class to current and former female Wal-Mart employees who had been 

subjected to gender discrimination within four Wal-Mart regions largely based in California. 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 5

Dukes v. Wal-Mart Stores, Inc., No. C 01-02252 CRB, 2012 WL 4329009, *2 (N.D. Cal. 

Sept. 21, 2012). The California district court denied Wal-Mart’s motion to dismiss, determined 

that this narrowed class action was not barred from proceeding, and set a date for filing of the 

motion for class certification. Id. at *10. The district court ultimately denied class certification. 

Dukes v. Wal-Mart Stores, Inc., 964 F. Supp. 2d 1115 (N.D. Cal. Aug. 2, 2013). 

Four parallel putative class action lawsuits were filed in other jurisdictions to bring 

individual and class claims concerning other Wal-Mart regions, including Tennessee, Phipps v. 

Wal-Mart Stores, Inc., 3:12-cv-1009 (M.D. Tenn. filed Oct. 2, 2012); Texas, Odle v. Wal-Mart 

Stores, Inc., No. 3:11-cv-2954-O (N.D. Tex. filed October 28, 2011); Florida, Love v. Wal-Mart 

Stores, Inc., No. 0:12-cv-61959-RNS (S.D. Fla. filed Oct. 4, 2012); and Wisconsin, Ladik et al., 

v. Wal-Mart Stores, Inc., 291 F.R.D. 263, 264 (W.D. Wisc. filed Feb. 20, 2013). Phipps is 

currently before us. 

Two of the named plaintiffs, Cheryl Phipps and Bobbi Millner, were Wal-Mart 

employees when the Dukes complaint was initially filed; only Gibbons is still employed by WalMart. The plaintiffs alleged individual Title VII disparate treatment claims and, on behalf of a 

class of current and former female Wal-Mart employees in Region 43, they alleged Title VII 

pattern-or-practice and disparate impact claims. The plaintiffs requested class certification under 

Rule 23(b)(2) and Rule 23(b)(3). Specifically, the plaintiffs alleged that policies and 

management decisions in Wal-Mart Region 43 resulted in gender discrimination by denying 

current and former female employees equal pay for hourly positions and salaried management 

positions and by denying female employees equal opportunities for promotion to management 

track positions. Region 43 is centered in middle and western Tennessee, but also includes 

portions of Alabama, Arkansas, Georgia, and Mississippi. R. 1. 

Wal-Mart moved to dismiss the putative class claims under Rule 12(b)(6), arguing that 

Andrews v. Orr, 851 F.2d 146 (6th Cir. 1998), established a bright-line rule prohibiting American 

Pipe tolling for any purported class action brought after a previous denial of class certification. 

The district court concluded that it was bound by that rule and dismissed the class claims with 

prejudice under Rule 12(b)(6), never addressing whether the plaintiffs could satisfy the Rule 23 

standards for class certification. Phipps v. Wal-Mart Stores, Inc., 925 F. Supp. 2d 875, 893 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 6

(M.D. Tenn. Feb. 20, 2013). The court, however, expressed doubt about its decision, suggesting 

that in light of recent cases, Andrews should be reconsidered or at least refined to permit 

American Pipe tolling for a follow-on class action in appropriate circumstances. Id. at 880–81; 

Phipps v. Wal-Mart Stores, Inc., No. 3:12-cv-1009, 2013 WL 2897961, *2–4 (M.D. Tenn. 

June 13, 2013). The court certified its decision for interlocutory appeal under 28 U.S.C. 

§ 1292(b), Phipps, 2013 WL 2897961 at *4, and we granted plaintiffs’ petition for permission to 

appeal. 

II. ANALYSIS

A. Article III Standing

Before turning to the merits, we address Wal-Mart’s threshold argument that the 

plaintiffs lack standing to pursue this appeal. “To have standing, a litigant must seek relief for an 

injury that affects [her] in a ‘personal and individual way.’” Hollingsworth v. Perry, 133 S. Ct. 

2652, 2662 (2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (1992)). We 

have no difficulty concluding that the plaintiffs have standing because they “suffered a concrete 

and particularized injury that is fairly traceable to the challenged conduct, and is likely to be 

redressed by a favorable judicial decision.” Id. at 2661. 

The district court’s decision to dismiss the class allegations with prejudice precludes the 

plaintiffs from pursuing the pattern-or-practice theory of gender discrimination pled in the 

complaint. If the plaintiffs could establish a pattern or practice of gender discrimination, then 

each named plaintiff and each unnamed class member could rely on a presumption that each was 

affected by the allegedly discriminatory policies, placing the burden to prove otherwise on WalMart. See Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875 (1984); Teamsters, 

431 U.S. at 360; Serrano v. Cintas Corp., 699 F.3d 884, 894–95 (6th Cir. 2012). Because the 

pattern-or-practice theory is not available to individual plaintiffs, Bacon v. Honda of Am. Mfg., 

Inc., 370 F.3d 565, 575 (6th Cir. 2004), the named plaintiffs in this case would be unable to 

benefit from the presumption of discrimination arising from the theory in the absence of class 

allegations. This is a significant loss to the plaintiffs’ prosecution of the case and gives them a 

direct stake in the outcome of the appeal. See Hollingsworth, 133 S. Ct. at 2662. In addition, the 

dismissal of the class allegations impairs the plaintiffs’ ability to secure the scope of injunctive 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 7

relief that may be necessary to address region-wide gender discrimination, if plaintiffs ultimately 

prove their claims. Broad injunctive relief to benefit an entire class is “rarely justified” in an 

individual suit. Sharpe v. Cureton, 319 F.3d 259, 273 (6th Cir. 2003). 

For these reasons, we conclude that the named plaintiffs have standing to appeal the 

district court’s interlocutory decision dismissing the class allegations. See Hollingsworth, 133 

S. Ct. at 2662. This brings us to the question whether the district court properly dismissed the 

class allegations under Rule 12(b)(6). Our review of this issue is de novo. In re Vertrue Inc. 

Mktg. & Sales Litig., 719 F.3d 474, 478 (6th Cir. 2013). 

B. American Pipe Tolling 

The timely filing of a class-action complaint commences suit and tolls the statute of 

limitations for all members of the putative class who would have been parties had the suit been 

permitted to continue as a class action. American Pipe & Constr. Co., 414 U.S. at 550, 553–54. 

Tolling continues until a court decides that the suit is not appropriate for class action treatment. 

Id. At that point, the putative class members may protect their rights by moving to intervene as 

plaintiffs in the pending action, id., or they may file their own lawsuits, Crown, Cork & Seal Co. 

v. Parker, 462 U.S. 345, 354 (1983). 

American Pipe tolling of the limitations period guards the principal function of the class 

action suit—the fair and efficient adjudication of common claims aggregated in one suit. 

American Pipe & Constr. Co., 414 U.S. at 551. The policy inherent in Rule 23 to avoid a 

“multiplicity of activity” is protected through American Pipe tolling because class members need 

not take action to protect their individual rights until after a court decides that class action 

treatment is inappropriate. Id. The litigation efficiency and economy of Rule 23 would be lost 

for the parties and the court if class members filed motions to intervene in the suit or filed 

independent protective actions before the court has the opportunity to rule on the viability of a 

putative class action. Id. at 553; Crown, Cork & Seal Co., 462 U.S. at 354. 

In light of these important policy interests, class members who refrain from filing suit 

while the class action is pending “cannot be accused of sleeping on their rights; Rule 23 both 

permits and encourages class members to rely on the named plaintiffs to press their claims.” 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 8

Crown, Cork & Seal Co., 462 U.S. at 352–53. The class action complaint places the defendant 

on notice of the substantive claims brought against it and of the number and generic identities of 

the potential plaintiffs who may participate in a judgment. American Pipe & Constr. Co., 414 

U.S. at 555. “Tolling the statute of limitations thus creates no potential for unfair surprise, 

regardless of the method class members choose to enforce their rights upon denial of class 

certification.”2 Crown, Cork & Seal Co., 462 U.S. at 353. Wal-Mart has been on notice of the 

claims brought against it and the generic identities of the plaintiffs who would potentially 

participate in any judgment since the nationwide class action complaint was filed in Dukes in 

2001. Id.

The named plaintiffs in this action were members of the class when Dukes was initially 

filed, though they were not the named plaintiffs. As permitted by Supreme Court law, they have 

relied on the named plaintiffs in Dukes to “press their claims” since 2001 until the Supreme 

Court rejected the nationwide class. See Crown, Cork & Seal Co., 462 U.S. at 352–53. All three 

plaintiffs then filed administrative charges with the EEOC within the deadline ordered by the 

California district court. The EEOC issued right-to-sue letters, and the plaintiffs timely filed suit 

within the required ninety days. See 42 U.S.C. § 2000e-5(f)(1). Wal-Mart concedes that the 

individual claims of the named plaintiffs are timely brought, but the company urges us to affirm 

the district court’s conclusion that, under Andrews v. Orr, 851 F.2d 146 (6th Cir. 1998), the 

claims of the unnamed class members in Region 43 do not fall within the tolling protection of 

American Pipe. 

Proper application of Andrews and our subsequent case, In re Vertrue, requires close 

attention to the history of this litigation and particularly to the specifics of the class at issue. 

Recall that the Supreme Court addressed in Dukes a nationwide class of current Wal-Mart 

employees that had been certified under Rule 23(b)(2) for the purpose of seeking declaratory and 

 2

Wal-Mart argues that two recent cases, Gabelli v. SEC, 133 S. Ct. 1216 (2013) and Lozano v. Montoya 

Alvarez, 134 S. Ct. 1224 (2014), suggest that tolling is disfavored by the Supreme Court. These cases are inapposite 

because neither involved Rule 23 class actions or American Pipe tolling. Lozano, 134 S. Ct. at 1228 (addressing 

whether equitable tolling was appropriate for a father seeking the return of his child under the Hague Convention); 

Gabelli, 133 S. Ct at 1218–19 (addressing whether the “discovery rule” tolled the statute of limitations in an SEC 

fraud case).
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 9

injunctive relief against Wal-Mart.3 Dukes, 131 S. Ct. at 2546–49, 2550 & n.4. The Court 

expressly recognized that the Ninth Circuit had excluded from the certified class the putative 

class members who—at the time the original complaint was filed—were no longer employed by 

Wal-Mart because former employees, who are no longer subject to Wal-Mart’s employment 

supervision, lack standing to seek Title VII injunctive or declaratory relief against Wal-Mart 

under Rule 23(b)(2). Dukes, 131 S. Ct. at 2547 n.1, 2550 n.4. When the Supreme Court issued 

Dukes, no class of current Wal-Mart employees had been certified under Rule 23(b)(3) for the 

purpose of determining Wal-Mart’s liability for monetary relief. The Supreme Court left that 

question open when it ruled that the certified class could not seek monetary relief under Rule 

23(b)(2), id. at 2557–61, and explicitly stated that the applicability of Rule 23(b)(3) “to the 

plaintiff class is not before us.” Id. at 2549 n.2. 

Furthermore, at the time the Supreme Court ruled in Dukes, no class of former Wal-Mart 

employees had been certified under Rule 23(b)(3) for the purpose of seeking monetary relief. 

The Ninth Circuit, sitting en banc, preserved the right of the former employees to seek monetary 

relief through class action by instructing the district court on remand to analyze “whether an 

additional class or classes may be appropriate under Rule 23(b)(3) with respect to the claims of 

former employees. The court may, if appropriate, certify an additional class or classes under 

Rule 23(b)(3).” Dukes, 603 F.3d at 624. Wal-Mart did not ask the Supreme Court to decide 

whether the Ninth Circuit erred by remanding the putative class claims of former Wal-Mart 

employees to the district court for consideration of class certification under Rule 23(b)(3). 

Petition for a Writ of Certiorari, Dukes, 131 S. Ct. 2541 (No. 10-277), 2010 WL 3355820 at *9, 

17. In fact, Wal-Mart did not specifically request review on whether the Rule 23(b)(2) class 

demonstrated a question of law or fact common to the class under Rule 23(a), id.; the Supreme 

Court added that issue for briefing when it granted certiorari. Wal-Mart Stores, Inc. v. Dukes, 

131 S. Ct. 795 (2010) (Mem). 

 3

The Dukes opinion referred to the three named plaintiffs as “current or former Wal-Mart employees,” 

Dukes, 131 S. Ct. at 2546, but the Supreme Court explained that two of the named plaintiffs were presently

employed by Wal-Mart and one named plaintiff, Edith Arana, was a Wal-Mart employee at the time the suit was 

filed. Id. at 2548. Arana’s employment ended in 2001 when Wal-Mart fired her. Id. 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 10

1. Rule 23(b)(3) class of current and former employees seeking monetary relief in WalMart Region 43 

With the litigation history of Dukes firmly in mind, we begin with the Rule 23(b)(3) 

class. We conclude that Andrews v. Orr cannot bar the request of the named plaintiffs to certify 

a class of current and former employees seeking monetary relief against Wal-Mart in Region 43 

under Rule 23(b)(3). To explain why, we first explore the Andrews opinion and then our more 

recent case, In re Vertrue. 

Andrews concerned federal employees who wished to bring employment discrimination 

claims against their employing federal agency. Andrews, 851 F.2d at 147. Federal regulations 

required them to submit an administrative charge to the agency’s Equal Employment 

Opportunity Counselor “within 30 calendar days” of the alleged date of discrimination, id.

(quoting 29 C.F.R. § 1613.214), and if they sought class-wide relief, they were required to meet 

a 90-day time limit. Id. (citing 29 C.F.R. § 1613.602(a)). Because the timing and sequence of 

events were “critical to the decision of the appeal,” the Andrews court set forth the facts in detail, 

which we recount below. Id.

Andrews was the third of three class action lawsuits brought to challenge the disparate 

impact of the government’s Professional and Administrative Career Examination (PACE) used 

in hiring and promotion decisions. Id. at 147–48. The first class action was Luevano v. 

Campbell, 93 F.R.D. 68 (D.D.C. 1981), but the Andrews opinion did not discuss the significance 

or outcome of the Luevano case. Id. at 148. The second class action, captioned Brown v. Orr, 

99 F.R.D. 524, 526 (S.D. Ohio 1983), was filed in Ohio by one plaintiff on behalf of all AfricanAmerican employees of the Air Force Logistics Command (AFLC) who were denied promotions 

because of PACE. Id. The district court denied class certification in Brown on March 15, 1983, 

because the plaintiff failed to establish commonality or typicality under Rule 23(a), Brown, 

99 F.R.D. at 528; however, the unnamed class members took no action to protect their rights. 

Andrews, 851 F.2d at 148. The 30-day statute of limitations for filing individual claims with an 

EEO counselor began to run on March 15, when class certification was denied, and expired on 

April 15. Id. at 149. On April 18, the Brown plaintiff filed a second motion to certify a class, 

narrowing the class to employees of Wright-Patterson Air Force Base (WPAFB). Id. Before the 

district court could rule on that motion, the plaintiff settled her individual claim on July 12, 1983, 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 11

and the court dismissed the Brown case with prejudice. Id. at 148. The unnamed class members 

again took no immediate action with regard to the Brown case. Id. Between July 26 and July 28, 

1983, however, the Andrews plaintiffs, who were unnamed members of the Brown class, initiated 

the administrative process by contacting an EEO counselor, and they later filed suit. Id. 

Although the Andrews court did not elaborate on the district court’s analysis, the lower 

court’s opinion establishes that the court applied the 30-day limitations period for filing 

individual claims to the Andrews plaintiffs, even though they sought class-action relief under the 

90-day limitations period. Andrews v. Orr, 614 F. Supp. 689, 691 (S.D. Ohio June 14, 1985). 

The court so held for two reasons. First, a federal regulation implicitly recognized that different 

members of the same putative class of federal employees could not repeatedly initiate class 

actions based on the same conduct. Id. at 691–92 (citing 29 C.F.R. § 1613.604(b)). Second, the 

court pointed to the Supreme Court’s statement in Crown, Cork & Seal that American Pipe

tolling ends when class certification is denied, and thereafter, class members may file their own 

suits or intervene in the pending action. Id. The court looked to district court opinions in two 

other jurisdictions to support its conclusion “that the statute of limitations is not tolled for 

purposes of initiating a new class action.” Id. 

The Andrews court approved the district court’s reasoning with little analysis, quoting 

short excerpts from Robbin v. Fluor Corp., 835 F.2d 213, 214 (9th Cir. 1987), Korwek v. Hunt, 

827 F.2d 874, 879 (2d Cir. 1987), and Salazar-Calderon v. Presidio Valley Farmers Ass’n, 

765 F.2d 1334, 1351 (5th Cir. 1985) (Calderon I). Id. at 149. We will say more about these 

three cases later in this opinion. The Andrews court expressed a concern, similar to that voiced 

by Justice Powell in his concurrence in Crown, Cork & Seal, that the American Pipe tolling rule 

“is a generous one, inviting abuse.” Id. (citing 462 U.S. at 354). 

Finally, the Andrews court affirmed the district court’s ruling that the plaintiffs’ 

individual claims were untimely filed, observing that “[e]ven if the Brown plaintiff’s second 

motion for class certification somehow revived or reactivated tolling, it came too late. More than 

thirty days had gone by in which neither a class action nor a motion for class certification was 

pending.” Id. at 150. Under American Pipe and Crown, Cork & Seal, the court emphasized that 

“[i]t is the filing of a class action and the pendency of a motion to certify that suspend the 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 12

running of a limitations period for putative class members, and the period for filing begins to run 

anew when class certification is denied.” Id. Ultimately, the Andrews court extended equitable 

tolling to the plaintiffs on their individual claims, vacated the judgment dismissing the case, and 

remanded for further proceedings on the individual claims. Id. at 150–52. 

Our court recently had an opportunity to interpret the meaning of Andrews. See In re 

Vertrue, 719 F.3d at 478–80. In that case, the success of the purported class action depended on 

whether the plaintiffs were “entitled to tolling during the pendency of a prior putative class 

action suit.” Id. at 477. We observed that an out-of-circuit district court had dismissed a prior, 

related class action lawsuit, Sanford v. West, without ever ruling on a motion for class 

certification. Id. After discussing Andrews at length, we turned to Vertrue’s argument that 

Andrews established a “bright line rule that American Pipe tolling never applies to subsequent 

class actions by putative class members,” and thus the class action subsequent to Sanford was 

time-barred. Id. at 479. 

We rejected Vertrue’s proposed bright-line rule. We reasoned that Andrews concerned a 

situation in which a subsequent class action was brought after class certification already had been 

denied whereas in Vertrue no court had definitively addressed the requested class certification 

because the Sanford court had dismissed the initial suit before ruling on a pending motion for 

class certification. Id. at 479–80. Because no court had denied class certification and “[b]ecause 

the risk motivating our decision in Andrews—namely, repetitive and indefinite class action 

lawsuits addressing the same claims” was “simply not present,” we held that the commencement 

of the Sanford class action tolled the statute of limitations under American Pipe for subsequent 

class claims. Id. at 480. 

Significantly, we observed that “[o]ther courts have followed this same approach when 

faced with a situation in which a previous court has not made a determination as to the ‘validity 

of the class.’” Id. at 480 n.2. In support, we cited Yang v. Odom, 392 F.3d 97, 104, 112 (3d Cir. 

2004), for the proposition “that tolling applies to a subsequent class action when the prior denial 

of class certification was ‘based solely on Rule 23 deficiencies of the putative representative.’” 

Id. We also cited Catholic Social Services, Inc. v. I.N.S., 232 F.3d 1139, 1149 (9th Cir. 2000) 

(en banc), for the holding “that tolling applies to a subsequent class action when class 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 13

certification was granted in a prior case.” Id. We drew further support from Great Plains Trust 

Co. v. Union Pacific Railroad Co., 492 F.3d 986, 997 (8th Cir. 2007), where the Eighth Circuit 

assumed “without deciding that American Pipe analysis applies in cases where one putative class 

action suit was dismissed without prejudice and one was voluntarily dismissed.” Id. We also 

observed that, “[e]ven those circuits that apply a categorical ban against tolling for the benefit of 

subsequent class actions”—and the Vertrue court certainly did not place Andrews in that group—

“have addressed situations in which class certification has been affirmatively denied.” Id. 

(citing Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994); Calderon I, 765 F.2d at 1349–50; 

Basch v. Ground Round, Inc., 139 F.3d 6, 7, 11 (1st Cir. 1998); Korwek, 827 F.2d at 878). The 

Vertrue court held that American Pipe tolling applied to make the class claims timely filed, 

affirmed the district court’s denial of the defendants’ motion to strike the class allegations, and 

allowed the subsequent class action to proceed. Id. at 476, 480. 

The reasoning of Vertrue applies with equal force to the putative Rule 23(b)(3) class 

action brought against Wal-Mart by Phipps, Millner, and Gibbons on behalf of current and 

former female employees in Region 43. The Rule 23(b)(3) class action claims are timely filed 

under American Pipe, Crown, Cork & Seal, and the California district court’s 2011 tolling order 

entered after the Supreme Court announced its decision in Dukes. When the instant complaint 

was filed, no court in any jurisdiction had denied certification of a Rule 23(b)(3) class of current 

and former female employees seeking monetary relief against Wal-Mart under Title VII. Vertrue 

permits the Rule 23(b)(3) class to proceed in Region 43, and Andrews does not bar it. 

We draw further support from the Fifth Circuit’s recent decision reaching an outcome 

similar to ours in class litigation brought subsequent to Dukes in Wal-Mart’s Texas regions. 

Odle v. Wal-Mart Stores, Inc., 747 F.3d 315 (5th Cir. 2014). Stephanie Odle’s Wal-Mart 

employment terminated in late 1998. Id. at 316. In 1999, she filed an administrative charge of 

gender discrimination with the EEOC and received a right-to-sue letter in May 2001. Id. at 317. 

Odle was one of the original named plaintiffs in the Dukes lawsuit filed in the Northern District 

of California. Id. Although the California district court certified a Rule 23(b)(2) nationwide 

class of current and former Wal-Mart employees, the Ninth Circuit pared away the individual 

and class claims of former Wal-Mart employees, including Odle’s, from the Rule 23(b)(2) 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 14

certified class that eventually reached the Supreme Court. Id. at 318–19. After the Supreme 

Court decided Dukes, Odle filed a new action in the Northern District of Texas asserting 

individual and putative class claims on behalf of employees in Wal-Mart’s Texas regions. Id. at 

318. The district court granted Wal-Mart’s motion to dismiss Odle’s individual and putative 

class claims as time-barred, id. at 319, but the Fifth Circuit reversed and remanded for further 

proceedings. Id. at 323. 

The Fifth Circuit concluded that American Pipe tolling of Odle’s claims continued after 

Dukes, 131 S. Ct. 2541, because the Ninth Circuit’s en banc opinion had expressly instructed the 

California district court to consider on remand whether to certify a class of former employees 

under Rule 23(b)(3), a form of relief that the Dukes plaintiffs had sought in their initial motion 

for class certification, but never obtained. Id. The Fifth Circuit further concluded that the Ninth 

Circuit’s opinion remanding the case to the California district court did not give Odle notice that 

her claims could not be pursued in a subsequent class action. Id. at 320. 

Opposing Odle’s efforts to certify a Rule 23(b)(3) class, Wal-Mart relied on SalazarCalderon v. Presidio Valley Farmers Ass’n, 863 F.2d 384 (5th Cir. 1989) (per curiam) (Calderon 

II). Id. at 321. The Fifth Circuit distinguished that case “on significant procedural grounds.” Id. 

To explain why, the court began with its previous opinion, Calderon I, 765 F.2d 1334, a case we 

cited in Andrews, 851 F.2d at 149, and Vertrue, 719 F.3d at 480 n.2. The Fifth Circuit wrote: 

In Calderon I, the district court denied class certification. On appeal the first 

time, we affirmed the district court’s refusal to certify the class, but we remanded 

the case on other grounds. We further noted that the district court nevertheless 

could, despite our affirmance, reconsider the class certification issue on remand. 

In the meantime—after the district court denied certification but before the 

Calderon I appeal was decided—the two-year statute of limitations expired. On 

remand, the district court certified the class. 

 We next determined, in Calderon II, that tolling had ceased when the 

district court denied class certification at the outset of the litigation. We held that, 

because the Calderon putative class members had failed to protect their rights by 

either intervening or by filing individual lawsuits after the district court’s initial 

denial of certification and before the two-year statute of limitations had run, the 

district court’s subsequent, post-remand certification order could not resurrect the 

time-barred claims. 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 15

Odle, 747 F.3d at 321. Although Wal-Mart argued that Calderon II controlled Odle, the Fifth 

Circuit distinguished Calderon II: “The Calderon district court initially denied certification, 

whereas the California district court in Dukes certified the class at the outset of the litigation.” 

Id. The Ninth Circuit’s subsequent instruction to the California district court to consider the 

potential for Rule 23(b)(3) certification of a class of former Wal-Mart employees “did not invite 

the California district court to reconsider a denial of class certification; rather, it directed the 

lower court to consider certifying—for the first time—the carved-out class of former employees 

under a different subsection, viz., Rule 23(b)(3).” Id. at 321–22. “The fact that the California 

district court did not consider, much less deny, certification of the class of former employees 

under Rule 23(b)(3) is a crucial distinction that makes Calderon II inapposite.” Id. at 322. 

If Odle and the putative class members were denied the benefit of American Pipe tolling, the 

policy of Rule 23 would be undermined by encouraging the class members to make “repetitious 

and unnecessary filings . . . to prevent their claims from expiring if certification of the class is 

denied.” Id. at 320 (internal quotation marks omitted). Holding that Odle’s claims were timely 

filed, the Fifth Circuit reversed the district court’s dismissal of the suit, and remanded for further 

proceedings. Id. at 323. 

Odle is fully consistent with the analysis in Vertrue and our reasoning in this case. 

Andrews—which precluded a subsequent class action after the district court had already denied

class certification at the outset of the litigation—cannot bar the plaintiffs’ present effort to certify 

for the first time this timely-filed Rule 23(b)(3) class comprised of current and former female 

employees of Wal-Mart in Region 43. See In re Vertrue, 719 F.3d at 479–80; Odle, 747 F.3d at 

321–22. The Andrews court recognized, moreover, that the limitations period is suspended if a 

class action is filed and a motion to certify is pending. Andrews, 851 F.2d at 150. The Dukes

class action complaint and the original motion to certify a Rule 23(b)(3) class remained pending 

in the California district court after the Supreme Court decided Dukes. The limitations period 

was suspended under American Pipe, pursuant to the extension order entered by the California 

district court after Dukes, until May 25, 2012. The plaintiffs timely filed their EEOC charges 

before that date, and they filed suit under Title VII within ninety days of receiving their right-tosue letters. Under these circumstances, the plaintiffs’ claims were timely filed. Wal-Mart’s 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 16

reliance on Andrews does not carry the day, and the company’s motion to strike the 

Rule 23(b)(3) class allegations as time-barred by American Pipe and Andrews must be denied. 

2. The Rule 23(b)(2) class of current female employees seeking declaratory and 

injunctive relief in Wal-Mart Region 43 

A different question is presented by the request of the named plaintiffs to certify a 

Rule 23(b)(2) class of current female employees for the purpose of obtaining declaratory and 

injunctive relief against Wal-Mart in Region 43. Wal-Mart contends that Andrews bars plaintiffs 

from asserting this new class action. We disagree because Andrews does not control, and 

plaintiffs brought the class action in a timely manner. The issue is whether the class action is 

precluded by the Supreme Court’s decision in Dukes, not whether it was timely filed. 

It is important to recall that the Andrews plaintiffs were unnamed members of a preceding 

class action, Brown v. Orr. Andrews, 851 F.2d at 148. When the district court denied class 

certification in Brown, American Pipe tolling ended and the applicable 30-day statute of 

limitations started running. Id. The Andrews plaintiffs took no steps to protect their rights. Id. 

The limitations period expired months before the Andrews plaintiffs filed administrative charges 

with their EEO counselor and later filed the new class action. Id. Because the Andrews

plaintiffs’ individual claims were untimely filed, it is no surprise that the district court and this 

court refused to allow them to proceed with a new class action on behalf of themselves and 

unnamed members of the Brown and Andrews classes. 

In this case, plaintiffs took action to protect their rights and the rights of Wal-Mart 

employees working in Region 43 when they pursued EEOC charges and filed this class action 

during the tolling period set by the California district court. Plaintiffs and the unnamed members 

of the Region 43 class were entitled to rely on the California district court to protect their rights 

on remand from the Supreme Court. This is particularly true because the nationwide Dukes class 

was mandatory under Rule 23(b)(2) and its unnamed members, including plaintiffs and the 

Region 43 current Wal-Mart employees, received neither notice of the pending nationwide class 

nor a right to opt out of that class. Dukes, 131 S. Ct. at 2558. As directed by the California 

district court, plaintiffs timely pursued their own individual claims and those of the unnamed 

members of the Dukes class who work in Region 43. 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 17

Wal-Mart contends that footnote 10 in Smith v. Bayer Corp., 131 S. Ct. 2368 (2011), 

supports an anti-stacking rule, but Wal-Mart misses the Supreme Court’s point. In Smith, Bayer 

Corporation relied on American Pipe and United Airlines, Inc. v. McDonald, 432 U.S. 385 

(1977), in an unsuccessful bid to bind Smith—“an unnamed member of a proposed but 

uncertified class”—as a party to a separate class action suit in which class certification had been 

denied. Id. at 2379–80 & n.10. The Supreme Court rejected Bayer’s attempt, holding instead 

that unnamed members of a class action are not parties to nor bound by a case judgment in which 

certification is denied. See Smith, 131 S. Ct. at 2379–81 & n.11. The Court explained that 

American Pipe and McDonald are “specifically grounded in policies of judicial administration” 

and “demonstrate only that a person not a party to a class suit may receive certain benefits (such 

as the tolling of a limitations period) related to that proceeding. . . . That result is consistent with 

a commonplace of preclusion law—that nonparties sometimes may benefit from, even though 

they cannot be bound by, former litigation.” Id. at 2379 n.10. 

Moreover, the concern that animated Andrews—the abusive use of American Pipe tolling 

to resurrect already time-barred individual and class claims—is not present in this case. The 

three cases cited in Andrews to support the statement “that the pendency of a previously filed 

class action does not toll the limitations period for additional class actions by putative members 

of the original asserted class,” Andrews, 851 F.2d at 149, cannot bear the weight Wal-Mart 

places on them. In Korwek v. Hunt, 827 F.2d at 879, the Second Circuit expressed concern about 

affording “plaintiffs the opportunity to argue and reargue the question of class certification by 

filing new but repetitive complaints.” The court explicitly left open “for another day the 

question of whether the filing of a potentially proper subclass would be entitled to tolling under 

American Pipe.” Id. Thus, Korwek provides support for a “potentially proper subclass” of the 

nationwide Dukes class that current Wal-Mart employees timely filed under American Pipe, as 

directed by the California district court. 

The Fifth Circuit case, Calderon I, also does not support the bright-line rule Wal-Mart 

draws from Andrews, nor does it preclude the instant class claims. The Fifth Circuit recently 

explained in Odle that Calderon I did not bar a subsequent class action. Odle, 747 F.3d at 321. 

Although the Fifth Circuit initially affirmed the district court’s refusal to certify a class, the court 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 18

“further noted that the district court nevertheless could, despite our affirmance, reconsider the 

class certification issue on remand.” Id. at 321 & n.33 (quoting Calderon I (“[W]e in no way 

restrict the court’s discretion to change that decision [to deny class certification] on remand. It is 

well-settled that decisions on class certification are always interlocutory.”). 

The Ninth Circuit case cited in Andrews, Robbin v. Fluor Corp., 835 F.2d at 214, is 

likewise inapposite to both Andrews and this case. The Ninth Circuit has since explained that 

Robbin “interpreted American Pipe not to allow tolling when the district court in the previous 

action had denied class certification, and when the second action sought to relitigate the issue of 

class certification and thereby to circumvent the earlier denial.” Catholic Social Servs. Inc., 

232 F.3d at 1147. The Ninth Circuit permitted tolling for a subsequent class claim where “[t]he 

substantive claims asserted [were] within the scope of those asserted” in the earlier class action, 

satisfying the requirement of notice to the opposing party, but where the plaintiffs were “not 

attempting to relitigate an earlier denial of class certification, or to correct a procedural 

deficiency in an earlier would-be class.” Id. at 1149. The same is true here, where plaintiffs 

represent a class of current Wal-Mart employees in Region 43 who allege that they have been 

subjected to a pattern or practice of gender discrimination resulting from regional company 

policies and practices that were not addressed in Dukes. These substantive claims are within the 

scope of those asserted by the nationwide class in Dukes, and Wal-Mart had notice of them, but 

the class seeks neither relitigation nor correction of the earlier class claims. 

Korwek, Calderon I, and Robbin thus do not support the blanket rule that Wal-Mart seeks 

to draw from Andrews. We have previously rejected the position that Andrews sets a bright-line 

rule, and instead looked to the particular facts of the case to determine that “the risk motivating 

our decision in Andrews—namely, repetitive and indefinite class action lawsuits addressing the 

same claims—is simply not present here.” In re Vertrue, 719 F.3d at 479. Plaintiffs, for 

themselves and all other current Wal-Mart employees in Region 43, seek certification for the 

first time of a regional class under Rule 23(b)(2), seeking declaratory and injunctive relief, but 

not monetary relief, against Wal-Mart. 

Precision in characterizing the central issue is critical. The question is not whether the 

class claims are timely asserted under the statute of limitations. They are. The issue is whether 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 19

plaintiffs may use the class action device to litigate the claims of unnamed class members. See 

Catholic Social Services, Inc., 232 F.3d at 1147. Although the circuits seem to be at odds about 

this, Judge Easterbrook has explained that “[t]here is no conflict” in the circuits “on the question 

whether a second case may proceed as a class action.” Sawyer v. Atlas Heating & Sheet Metal 

Works, Inc., 642 F.3d 560, 563 (7th Cir. 2011) (citing cases). Decisions from various circuits 

“concern, not the statute of limitations or the effects of tolling, but the preclusive effect of a 

judicial decision in the initial suit applying the criteria of Rule 23.” Id. This issue was addressed 

by a Wisconsin district court in Wal-Mart litigation following the Supreme Court decision in 

Dukes. Ladik v. Wal-Mart Stores, Inc., 291 F.R.D. 263 (W.D. Wis. May 24, 2013). There WalMart moved to dismiss the class allegations in the Wal-Mart Region 14 class action. The district 

court allowed the timely new class action to proceed to the question of class certification because 

“once a plaintiff has filed a complaint that is timely under American Pipe, the tolling issue is 

resolved, regardless whether the plaintiff wishes to proceed individually or as a class. Although 

the previous class action that failed may have implications on a new motion for class 

certification, the statute of limitations is not one of them.” Id. at 268. See also Gomez v. St. 

Vincent Health, Inc., 622 F. Supp. 2d 710, 716–23 (S.D. Ind. 2008) (permitting subsequent class 

action to proceed). 

Similarly, the California district court denied Wal-Mart’s motion to dismiss the 

California Regions class and proceeded to the question of class certification. Dukes, 2012 WL 

4329009 at *4. That court relied on In re Initial Public Offering Securities Litigation, 483 F.3d 

70, 73 (2d Cir. 2007), where the Second Circuit’s “earlier order reversing certification of broad 

classes without further instruction did not bar the district court from considering different or 

narrower proposed classes in the same action, because district courts ‘have ample discretion to 

consider (or decline to consider) a revised class certification motion after an initial denial.’” Id. 

The court also looked to Ellis v. Costco Wholesale Corp., 657 F.3d 970, 987–88 (9th Cir. 2011), 

where the Ninth Circuit reversed class certification, but permitted the district court to consider 

whether a different type of class could be certified on remand. But see Love v. Wal-Mart Stores, 

Inc., No. 12-61959, 2013 WL 5434565 (S.D. Fla. Sept. 23, 2013) (holding follow-on class action 

barred under Eleventh Circuit precedent, Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994), 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 20

but questioning whether recent Supreme Court cases undermine the Eleventh Circuit’s “nopiggybacking rule”). 

The principle we draw from Andrews and the current caselaw we have discussed is that 

subsequent class actions timely filed under American Pipe are not barred. Courts may be 

required to decide whether a follow-on class action or particular issues raised within it are 

precluded by earlier litigation, but we would eviscerate Rule 23 if we were to approve the 

blanket rule advocated by Wal-Mart that American Pipe bars all follow-on class actions. See 

Sawyer, 642 F.3d at 564. Rule 23 expressly provides that “[a] class action may be maintained if 

Rule 23(a) is satisfied and if” one of the subsections of Rule 23(b) is also met. Shady Grove 

Orthopedic Assoc. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010). “By its terms this creates a 

categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as 

a class action.” Id. If each unnamed member of a class that is not certified were barred from 

ever again proceeding by class action, each class member would have an incentive to multiply 

litigation by filing protective suits or motions to intervene at the outset of the initial class action 

suit. The weight of individual filings would strain the federal courts. This is precisely the 

scenario that “Rule 23 was designed to avoid” in cases where adjudication of claims by class 

action is a fair and efficient method of resolving a dispute. American Pipe & Constr. Co., 414 

U.S. at 551, 553–54; Wyser-Pratte Mgt. Co. v. Telxon Corp., 413 F.3d 553, 569 (6th Cir. 2005) 

(“The purposes of American Pipe tolling are not furthered when plaintiffs file independent 

actions before decision on the issue of class certification, but are when plaintiffs delay until the 

certification issue has been decided.”). 

Plaintiffs and the current Wal-Mart employees of Region 43 are entitled to seek class 

certification under Rule 23. All of them were unnamed members of the nationwide Dukes class. 

Under American Pipe, the Wal-Mart Region 43 class action brought under Rule 23(b)(2) was 

timely filed, and it is not barred: it may proceed if the Rule 23 class action prerequisites are 

satisfied. Shady Grove Orthopedic Assoc., 559 U.S. at 398. 

Wal-Mart warns us, like Bayer Corporation warned the Supreme Court in Smith, that our 

approach will allow serial class action litigation and force corporate defendants to settle to buy 

peace. See Smith, 131 S. Ct. at 2381. Wal-Mart claims that it is unfair to permit absent class 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 21

members to stack one class action onto another and benefit from the EEOC claims filed by the 

named plaintiffs. But representative claims are the nature of class actions, and the Supreme 

Court rejected similar concerns in Smith—as we do here—because “this form of argument flies 

in the face of the rule against non-party preclusion.” Id. “That rule perforce leads to relitigation 

of many issues, as plaintiff after plaintiff after plaintiff (none precluded by the last judgment 

because none a party to the last suit) tries his hand at establishing some legal principle or 

obtaining some grant of relief.” Id. But that apprehension need not bar legitimate class action 

lawsuits or distort the purposes of American Pipe tolling. Instead, we follow the Supreme 

Court’s lead and trust that existing principles in our legal system, such as stare decisis and 

comity among courts, are suited to and capable of addressing these concerns. 

III. CONCLUSION

For the reasons explained above, we hold, under In re Vertrue, that Andrews does not bar 

the Wal-Mart Region 43 Rule 23(b)(3) putative class action brought by the named plaintiffs for 

themselves and on behalf of all former female Wal-Mart employees. Their action was timely 

filed under American Pipe, and no court has ever ruled on whether certification of the Rule 

23(b)(3) class is appropriate. We further hold that Andrews does not bar the Wal-Mart Region 

43 Rule 23(b)(2) putative class brought by plaintiffs for themselves and on behalf of all current 

female employees of Wal-Mart. Andrews barred a follow-on class action because it was filed 

months after the statute of limitations applicable to the named plaintiffs’ individual claims had 

run. By contrast, plaintiffs timely filed the Rule 23(b)(2) class action under American Pipe. 

Further, the Rule 23(b)(2) putative class may proceed under Smith and Shady Grove if the 

necessary class action prerequisites specified in Rule 23 are met. 

Accordingly, we REVERSE the order of the district court dismissing the class claims 

with prejudice and we REMAND the case for further proceedings consistent with this opinion. 

 
No. 13-6194 Phipps, et al. v Wal-Mart Stores, Inc. Page 22

_____________________________________________________ 

CONCURRING IN PART AND DISSENTING IN PART

_____________________________________________________ 

COOK, Circuit Judge, concurring in part and dissenting in part. I agree with the 

majority that Andrews does not bar consideration of the proposed Rule 23(b)(3) class. See Maj. 

Op. at 9–15; see also In re Vertrue, 719 F.3d at 479–80. I cannot agree, however, that we can 

read Andrews so narrowly as to allow the proposed 23(b)(2) class to go forward. Though the 

plaintiffs and the district court offer persuasive reasons to doubt the wisdom of Andrews, 

I believe it binds us to dismiss the 23(b)(2) claims absent reconsideration by the full court. 

See Grundy Mining Co. v. Flynn, 353 F.3d 467, 479 (6th Cir. 2003) (noting that we do not 

“enjoy greater latitude” in departing from prior published decisions “where our precedents 

purportedly are tainted by analytical flaws”). I would therefore vacate and remand the district 

court’s judgment only as to the putative 23(b)(3) class.