Last week, the U.S. Supreme Court denied Family Dollar Stores, Inc.’s petition for writ of certiorari seeking review of the Fourth Circuit’s decision in Scott, et. al. v. Family Dollar Stores, Inc., No. 12-1610 (4th Cir. Oct., 16, 2013). The Fourth Circuit had overturned the District Court’s decision to deny plaintiff’s motion to amend its employment discrimination-based class action complaint on the grounds that “as a matter of law plaintiffs cannot satisfy the Rule 23(a) commonality requirement because the alleged gender discrimination was a result of 'subjective decisions made at the local store levels.'” The Fourth Circuit ruled that the District Court’s decision was based “on a misapprehension of the applicable law,” including Wal-Mart Stores v. Dukes, 131 S. Ct. 2541 (2011). The Fourth Circuit held that Wal-Mart did not set out a per se rule against class certification where subjective decision-making or discretion is alleged, and Wal-Mart is limited to the exercise of discretion by lower-level employees, as opposed to upper-level, top-management personnel. The Court held that plaintiffs should have been allowed to file the amended complaint which “clearly specifies” four company-wide practices that were allegedly discriminatory and allegations of high-level decision-making authority by regional managers and vice presidents at corporate headquarters which are distinct from the allegations of nearly absolute discretion exercised by local supervisors in Wal-Mart. The Supreme Court has passed on the opportunity to address this question again, as it denied cert. in a similar case a couple of years ago. See McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482, 489 (7th Cir. 2012) cert. denied, 133 S. Ct. 338 (U.S. 2012). You can read our previous Family Dollar post for additional details.
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