By Phillip Bantz
The Daily Record Newswire
RALEIGH, NC — A couple of months ago just about everyone who was watching the case predicted that the U.S. Supreme Court would grant Family Dollar’s petition for certiorari.,Well, everyone was wrong.
“We received the Supreme Court’s ruling with real disappointment,” Family Dollar’s attorney, John Wester of Robinson, Bradshaw & Hinson in Charlotte, said the morning of June 30, shortly after the court rejected his client’s petition.
“When you get this close your heart pounds. And mine really was pounding. Denied has such a thud to it,” Wester added.
Many had thought that the petition was a shoo-in, especially after one of the justices requested that the company’s opposition — female employees who allege that they are underpaid because of their gender — respond to the petition and also after the court pushed back its ruling date on the petition.
That, coupled with the fact that the company had strong amicus backing from a group that represents some of the largest retail companies in the country, led many to believe that Family Dollar would reach the judiciary’s highest peak.
SCOTUSBlog, a website that reports on the Supreme Court but is not affiliated with the court, had named Family Dollar Stores, Inc. v. Scott as “Petition of the Day” and also included it in a list of petitions to watch because the cases had a “reasonable chance of being granted.” That was on June 17 – 13 days before the petition was denied.
“We’re gratified that the Supreme Court denied the case,” said Scott Michelman, a staff attorney for the Public Citizen Litigation Group in Washington, D.C., a nonprofit group that took the lead in opposing Family Dollar’s petition.
“Class actions, while they have been cabined in certain ways, are still a viable and important tool in our legal system to enable people who are alleged to have been wronged to band together and bring cases they might not be able to bring on their own,” he added.
Family Dollar, a Matthews-based discount stores chain, was appealing a ruling from the 4th U.S. Circuit Court of Appeals that allowed the plaintiffs to have a second whack at class certification after being denied by the trial court.
The company had urged the Supreme Court to settle what it described as “several deep and persisting circuit conflicts regarding the doctrine of pendent appellate jurisdiction.” It also wanted the court to clarify confusion surrounding the commonality requirements for class certification.
Still no class certification
The case now returns to U.S. District Court in Charlotte, where both sides will argue over whether the plaintiffs can sue Family Dollar as a class or as individuals. The 4th Circuit never reached that issue — the court’s majority only determined that the plaintiffs could amend their original complaint.
They sought to alter their complaint after the U.S. Supreme Court pulled the rug out from under them with its decision in Wal-Mart v. Dukes, which reversed lower court rulings certifying a class of plaintiffs in an employment and gender discrimination suit. The Family Dollar plaintiffs had anchored their complaint to those erroneous lower court rulings.
The trial court denied the plaintiff’s motion to amend their complaint, but the 4th Circuit’s majority reversed, despite Family Dollar’s assertion that class certification was the sole issue on appeal. The company argued that the 4th Circuit overreached when it used pendent appellate jurisdiction to consider whether the plaintiffs could tweak their complaint.
In a dissent, 4th Circuit Judge Harvie Wilkinson warned that the majority had set a dangerous precedent by allowing the plaintiffs to perform an about-face. He also contended that the plaintiffs’ amended complaint still failed to satisfy the commonality requirements outlined in Wal-Mart.
Disagreeing with Wilkinson, Michelman said the plaintiffs did not change their overall position, only their emphasis.
“It’s important to recognize, as the court did in Wal-Mart, that a corporate policy that is alleged to be unlawful remains a viable basis for a class action,” he added. “That’s because the policy provides a common question that is apt to yield a common answer that will drive the outcome of the litigation.”
Public Citizen has backed away from the case now that Family Dollar’s petition is dead. The plaintiffs’ lead attorney, Robert L. Wiggins Jr. of Wiggins, Childs, Quinn & Pantazis in Alabama, did not respond to a message seeking comment.
He said in a prior interview that his case differs from Wal-Mart because that ruling decertifying a class “applied only to a massive 3,500 stores in which all decisions were made at the store level and there was no centralized criteria.”
He also said his clients decided to amend their claim after discovering additional details about Family Dollar’s confidential decision-making process regarding employee salaries.
“As the plaintiffs learned more as the case went on they quite naturally amended the complaint,” he said. “That’s why the rules for amending exist.”
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