Although we’ve covered a number of interlocutory appeals here on the blog recently, this week’s decision by the Sixth Circuit is particularly interesting in that it granted an interlocutory appeal of the dismissal of a class action despite the lack of circuit split or an issue of first impression.

Plaintiffs brought Title VII claims on behalf of a regional class against Wal-Mart.  The regional class action, based in the Middle District of Tennessee, arose out of the Supreme Court’s dismantling of the Dukes v. Wal-Mart class action in 2011.  The district court, in dismissing the class claims as time-barred, held that the Sixth Circuit’s decision in Andrews v. Orr did not allow class members to benefit from the tolling provided to individual claims under the Supreme Court’s ruling in American Pipe & Construction Co. v. Utah.  Nevertheless, the district court certified the issue for appeal, holding that the Sixth Circuit’s recent decision in In re Vertrue Mktg. & Sales Practices Litigationmade the issues presented “important, complex, and merit[ing] clarification by the Sixth Circuit.”

The Sixth Circuit agreed.  Even though the parties had not identified a circuit split or an issue of first impression, U.S. Supreme Court and other circuit developments had raised questions about whether American Pipe allowed the plaintiffs to bring their regional class claims after the dismissal of the broader nationwide class: “[a]lthough our precedent seemingly establishes a bright-line rule barring follow-on subclass actions by former putative class members, subsequent caselaw from this court, the Supreme Court, and other circuit and district courts have established exceptions to the rule that might extend to the present subclass.”