# Cheryl Phipps v. Wal-Mart Stores, Inc.

> Court of Appeals for the Sixth Circuit · July 7, 2015 · 792 F.3d 637

URL: https://www.frixlaw.com/law-library/cases/9864096

## Case

- **Full name:** Cheryl PHIPPS; Bobbi Millner; Shawn Gibbons, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs-Appellants, v. WAL-MART STORES, INC., Defendant-Appellee
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** July 7, 2015
- **Citations:** 792 F.3d 637; 2015 FED App. 0140P; 127 Fair Empl. Prac. Cas. (BNA) 945; 2015 U.S. App. LEXIS 11616; 2015 WL 4079441
- **Precedential status:** Published
- **Opinion:** Concurring in part by Cook
- **Judges:** Merritt, Cook, Stranch
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by China Agritech, Inc. v. Resh, 138 S. Ct. 1800 (2018).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9864096

## How later opinions describe it (automated extraction)

- applying American Pipe tolling to successive class action

## Opinion text

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 *654 Rule 23(b)(3) class. See Maj. Op. at 645-49; 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9864096. Public record. Not legal advice.