Fourth Circuit Argues With Itself Over Dukes' Application

by BakerHostetler

While commentators can, and often do, debate fine points regarding the technical elements of a class action claim, the result in a given case is often dictated by a more fundamental concern. That issue is whether the judge views class action treatment as an exception to the general rule or, instead, as a fundamental right.

Just two years ago, in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct 2541 (2011), a majority of the Supreme Court came down on the side of viewing the class action requirements more strictly, and class action treatment to be the exception rather than the rule. But even the opinions in that case reflected this divide, with the dissent largely taking the view that courts should enforce Rule 23’s requirements more leniently to allow more and greater class action claims.

A recent Fourth Circuit case reflects that this unspoken debate continues and also raises troubling issues regarding a court’s candor over whether and why a particular case should be afforded class action treatment. Scott v. Family Dollar Stores, Inc., Case No. 12-1610 (4th Cir. Oct. 16, 2013).

It is more difficult than it should be to piece together the facts in Scott because the majority and dissent vary so widely in their description of the case they are reviewing, but at its core the case concerned class-wide claims against the Family Dollar Stores chain alleging that it discriminated against women in compensation nationwide. So far, the case looks like Dukes, right?

That was probably deliberate. The action was originally filed in 2008, at a time when the Ninth Circuit had already held that the Dukes case could proceed as a class. Emboldened by that ruling, the plaintiffs apparently patterned their complaint based on the claims in Dukes and claimed that the company’s decentralized practices and reliance on subjective criteria ultimately discriminated against women. In pleadings filed before the Supreme Court announced its Dukes decision, the plaintiffs even described their claims as being “virtually identical” to those in Dukes. The plaintiffs certainly cannot be faulted for doing so, assuming the allegations were true, and followed the logical course of patterning their case after one that had, at least as of then, proven successful.

But, of course, the Supreme Court reversed in Dukes in 2011 and the plaintiffs were then saddled with their own complaint patterned after now unsuccessful claims. Without explanation, the plaintiffs reversed course and sought to recast their complaint completely to disavow their prior allegations and to aver the types of centralized decisions that a post-Dukes class action would require.

The District Court found that the initial complaint could not survive post-Dukes scrutiny and also rejected the plaintiffs’ change of course and refused to allow the proposed amended pleading. The plaintiffs appealed.

The court of appeals was deeply divided. A 3-judge panel of the Fourth Circuit issued a 30-page majority opinion, 2-page concurrence, and a 32-page dissent. The language used by both sides was so strong that at least one judge had to comment about his respect and admiration for the others notwithstanding their disputes over the merits of the case before them. The two sides agreed that the initial complaint could not be certified as a class – which was to be expected as it was based on the complaint adjudicated in Dukes. Where they departed was whether the district court erred in denying leave to file the requested amendment.

The majority downplayed the allegations of the initial complaint and largely characterized the proposed amendment as a mere change in theory. It found that the district court should have permitted the amendment, permitted the parties to develop a fuller record, and then later reviewed the factual allegations more closely once it had that record.

Unless the dissent manufactured the quotes it cited from the initial complaint, however, the majority, to put it politely, was fudging. The dissent quoted and cited at length passages in which the plaintiffs stressed the issues of decentralized control and subjective decision making in their initial complaint. The dissent made the compelling case that the plaintiffs were abandoning their prior allegations and proposing entirely new and different factual allegations to fit within the requirements of Dukes. The dissent pointed out that even the new allegations were problematic and reflected little more than the fact that the defendant was a nationwide employer that, like virtually every other nationwide employer, used salary bands for various positions.

It’s hard to square the majority’s analysis with the facts. It may be that the majority was giving the plaintiffs a judicial Mulligan. It may have decided the case based on a view that the putative class should not be penalized for cleverly pleading a class based on another case, only to have it whisked away by an intervening Supreme Court decision. It is troubling, however, for a court to take such a cynical view or to gloss over the plaintiffs’ abrupt change of position on factual issues for purely tactical reasons. As even the majority opinion states, however, its decision will not be the last in the case, and the district court may very well deny certification once the record is more fully developed. The problem with that view is that the litigation, already in its sixth year, will continue with likely difficult and expensive discovery along the way.

The Bottom Line: Courts continue to grapple with Dukes issues and basic disagreements over whether a class action is (a) a right or (b) an exception to the general rule that individual cases are to be resolved on their own merits.


Written by:


BakerHostetler on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.