As we reported here, following their stinging defeat before the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), plaintiffs rebooted their claims in a fourth amended complaint alleging class-based gender discrimination claims with very important changes aimed to address deficiencies identified by the U.S. Supreme Court as barriers to class certification. The plaintiffs in Dukes moved again for class certification, relying on their “repackaged” theories focused on a smaller class of current and former female employees who worked in Wal-Mart regions centered in California and allegations of bias by a “discrete” group of California District and Regional Managers. However, plaintiffs were not successful. Noting that “[p]laintiffs’ proposed class suffers from the same problems identified by the Supreme Court, but on a somewhat smaller scale,” Judge Charles Breyer of the U.S. District Court for the Northern District of California denied the motion in August 2013 in a thorough order, finding that that the commonality issue was “dispositive.” That order, however, was not the final chapter in the twelve year old class action. Plaintiffs filed a request to appeal the order under Rule 23(f), which was immediately granted by the Court.
Unfortunately for Plaintiffs, the final chapter of the class claims may finally be here. On November 18, 2013, the U.S. Court of Appeals for the Ninth Circuit (Justices Silverman, Bybee and Christen) denied plaintiffs’ appeal in a one line opinion stating: “The court, in its discretion, denies the petition for permission to appeal the district court’s August 2, 2013 order denying class action certification.”
The reversal of fortune for the plaintiffs in Dukes continues, with the Ninth Circuit’s order being one of the final decisions to preclude class claims filed against Wal-Mart in the Northern District of California.