Chеryl PHIPPS; Bobbi Millner; Shawn Gibbons, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. WAL-MART STORES, INC., Defendant-Appellee.
No. 13-6194
United States Court of Appeals, Sixth Circuit
July 7, 2015
Rehearing En Banc Denied Aug. 10, 2015
792 F.3d 637
Before: MERRITT, COOK, and STRANCH, Circuit Judges.
Argued: May 1, 2014.
Neither the FCC‘s Palm Beach letter nor its regulations explain why the FCC has attached direct liability to the “telemarketer” that actually places a voice call while requiring proof of vicarious liability for the “seller” on whose behalf the call was made, yet has attached direct liability to the “sender” on whose behalf a fax advertisement was sent by a third party. Nonetheless, though Alfoccino questioned the reasoning of the FCC‘s letter brief and its application to this case, it has not directly challenged the legitimacy of the FCC‘s definition of sender in § 64.1200(f)(10). Nor is such a challenge likely to be viable because the Hobbs Act confers jurisdiction on Courts of Appeal to review FCC regulations only by direct appeal from the FCC.
The pertinent FCC regulations are explicit that the party whose goods or services are advertised—and not the fax broadcaster—is the sender. We therefore find that Alfoccino is a party subject to direct liability for the unsolicited Alfoccino advertisements B2B transmitted to Avio in violation of the TCPA.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s grant of summary judgment to Alfoccino and REMAND the case to the district court for further proceedings in accordance with this opinion.
OPINION
STRANCH, Circuit Judge.
This putative class action lawsuit began after the Supreme Court‘s decision in Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011). There the Supreme Court rejected certification, under
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, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 354, 103 S.Ct. 2392, 76 L.Ed.2d 628 (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
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 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 promоtions 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
In 2004, following extensive discovery, the district court certified a nationwide class under
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
The Court further concluded that the plaintiffs’ requests for backpay were improperly certified under
After Dukes, the plaintiffs promptly filed a motion in the California district court to extend tolling of the statute of limitations under American Pipe, 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 be-
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. 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 regiоns, including Tennessee, Phipps v. Wal-Mart Stores, Inc., 3:12-cv-1009, 2012 WL 4896677 (M.D.Tenn. filed Oct. 2, 2012); Texas, Odle v. Wal-Mart Stores, Inc., No. 3:11-cv-2954-O, 2011 WL 5119693 (N.D.Tex. filed October 28, 2011); Florida, Love v. Wal-Mart Stores, Inc., No. 0:12-cv-61959-RNS, 2012 WL 4739296 (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.Wis.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 Wal-Mart. 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
Wal-Mart moved to dismiss the putative class claims under
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, --- U.S. ---, 133 S.Ct. 2652, 2662, 186 L.Ed.2d 768 (2013) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n. 1, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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 affectеd by the allegedly discriminatory policies, placing the burden to prove otherwise on Wal-Mart. See Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 875, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Teamsters, 431 U.S. at 360, 97 S.Ct. 1843; 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 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 thаt 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
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. v. Utah, 414 U.S. 538, 550, 553-54, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). 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, 103 S.Ct. 2392, 76 L.Ed.2d 628 (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
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.” 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 thе 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
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
Furthermore, at the time the Supreme Court ruled in Dukes, no class of former Wal-Mart employees had been certified under
1. Rule 23(b)(3) class of current and former employees seeking monetary relief in Wal-Mart Region 43.
With the litigation history of Dukes firmly in mind, we begin with the
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
Andrews was the third of three class action lawsuits brought to challenge the disparate impact of the government‘s Prо-
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 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
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). Andrews, 851 F.2d 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, 103 S.Ct. 2392).
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
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,” 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 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 aрplied 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.
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 administrаtive 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
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
Opposing Odle‘s efforts to certify a
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.
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
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
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 filеd 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
Wal-Mart contends that footnote 10 in Smith v. Bayer Corp., --- U.S. ---, 131 S.Ct. 2368, 180 L.Ed.2d 341 (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, 97 S.Ct. 2464, 53 L.Ed.2d 423 (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 limitatiоns period for additional class actions by putative members of the original asserted class,” Andrews, 851 F.2d at 149, cannot bear the
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 “further noted that the district court nevertheless could, despite our affirmancе, 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 213 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. v. INS, 232 F.3d 1139, 1147 (9th Cir.2000). 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 оur 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
Precision in characterizing the central issue is critical. The question is not whether the 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
Similarly, the California district court denied Wal-Mart‘s motion to dismiss the California Regions class and prоceeded 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), but questioning whether recent Supreme Court cases undermine the Eleventh Circuit‘s “no-piggybacking 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.
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
Wal-Mart warns us, like Bayer Corporation warned the Supreme Court in Smith, that оur 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 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
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.
COOK, Circuit Judge, concurring in part and dissenting in part.
CONCURRING IN PART AND DISSENTING IN PART
I agree with the majority that Andrews does not bar consideration of the proposed