Robert Lisk of Alabama was building a fence. So he bought some fence lumber from Lumber One. Three years later (he alleged) he discovered that his lumber was rotting prematurely. He filed a class action against Lumber One, asserting, among other claims, that it had violated Alabama’s Deceptive Trade Practices Act (the ADTPA).

Lumber One moved to dismiss the ADTPA claim, arguing that the statute specifically prohibited class actions. A court in the Northern District of Alabama agreed, and dismissed the case in Lisk v. Lumber One Wood Preserving, LLC, No. 3:13-cv–01402-AKK, 2014 U.S. Dist. LEXIS 1784 (N.D. Ala. Jan. 8, 2014).

But wait. Didn’t the Supreme Court hold that Rule 23 trumped state law in situations like this in Shady Grove?

As it turns out, not really.

The court pointed out that the portions of the Shady Grove opinion that found that Rule 23 always falls within the authorization of the Rules Enabling Act were backed by a four-justice plurality, as opposed to a majority. The opinion itself was controlled by Justice Stevens’s concurrence, which did not adopt that holding. Instead, as the court held

Since the Supreme Court decided Shady Grove, a number of district courts have considered cases that roughly raised the same question this court now faces: does Shady Grove require a federal court sitting in diversity to apply Rule 23 rather than a state law that either explicitly or effectively limits a plaintiff’s ability to bring a class action? Generally, these courts have concluded that if the limiting provision is found within the text of a state statute that confers a substantive right and applies only to cases brought under the statute, it is so intertwined with a state’s substantive remedies that applying Rule 23 in its stead would abridge, enlarge, or modify a substantive state-created right, and consequently violate the Rules Enabling Act.

The ADTPA’s bar on private class actions is precisely the type of provision described in the above cases.

(Emphasis added, internal citations omitted.) The takeaway for defendants here should be pretty clear. Make sure you examine the text of consumer-protection statutes: those prohibitions on class actions are likely still kosher.