On Tuesday, the Ninth Circuit denied rehearing of its earlier ruling permitting certification of a class of approximately 1.5 million women. See Dukes v. Wal-Mart, Inc., No. 04-16688, __ F.3d __ , 2007 WL 4303055 (9th Cir. 2007), available here. The certified class includes women across the country who have been subjected to Wal-Mart's allegedly discriminatory pay and promotions policies.
In addition to denying rehearing, the panel took the unusual step of replacing its original opinion, 474 F.3d 1214 (9th Cir. 2007), with Tuesday's revised opinion. The new opinion addressed issues raised in Wal-Mart's brief (which is available, along with other key filings, here), and found that former employees who could not benefit from declaratory or injunctive relief should be excluded from the class.
Judge Kleinfeld dissented, stating that the majority's new opinion "does not solve the problems of its previous opinion," and stated that only the numerosity requirement of Fed. R. Civ. P. 23(a) had been met, but that there was insufficient commonality, typicality, and adequacy of representation, and that injunctive and declaratory relief did not predominate, as required by Fed. R. Civ. P. 23(b).
It was reported that Wal-Mart intends to seek rehearing en banc.
The Dukes lawsuit is one of over 70 labor lawsuits that Wal-Mart is facing, and was listed in this article as one of Inside Counsel's top 20 stories of 2007, which we mentioned in this earlier post. Dukes is the largest civil rights class action in history, and could be worth billions of dollars if the class prevails. It is the subject of at least one book.