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Divided 9th Circuit Allows Gender Bias Class To Proceed

SAN FRANCISCO - (Mealey's) In a 6-5 vote, the Ninth Circuit U.S. Court of Appeals on April 26 allowed claims that the nation's largest retailer discriminated against female employees solely based on their gender to proceed as a class action lawsuit (Betty Dukes, et al. v. Wal-Mart Stores Inc., Nos. 04-16688, 04-16720, 9th Cir.).

The class action is estimated to include more than 1.6 million current and former Wal-Mart Stores Inc. female employees and is believed to be the largest class action ever to be certified.  The en banc ruling affirms a Ninth Circuit panel's Dec. 11, 2007, ruling that U.S. Judge Martin Jenkins of the Northern District of California did not abuse his discretion by granting the plaintiffs class certification in their suit against the retailer.  With respect to the plaintiffs' claims for punitive damages, the majority remanded so that the District Court may consider whether to certify the class under Federal Rule of Civil Procedure 23(b)(2) or 23(b)(3).  The majority also remanded so that the District Court may consider whether the claims of class members who were no longer employed by Wal-Mart when the initial complaint was filed may be certified as part of an additional class under Rule 23(b)(3).

Although the size of this class action is large, mere size does not render a case unmanageable," Judge Michael Daly Hawkins wrote for the majority.  "[W]e hold the District Court acted within its broad discretion in concluding that it would be better to handle some parts of this case as a class action instead of clogging the federal courts with innumerable individual suits litigating the same issues repeatedly."

Judge Hawkins was joined by Judges Stephen Reinhardt, Susan P. Graber, Raymond C. Fisher, Richard A. Paez and Marsha S. Berzon.  Judge Sandra Ikuta wrote a dissenting opinion and was joined by Chief Judge Alex Kozinski and Judges Pamela A. Rymer, Carlos T. Bea and Barry G. Silverman.

The plaintiffs claim that the Bentonville, Ark.-based company made discriminatory decisions based on gender in determining female employees' pay and eligibility for promotions, resulting in billions of dollars in damages.  On June 22, 2004, Judge Jenkins certified a class of all current and former employees of Wal-Mart who worked at its U.S. stores anytime since Dec. 26, 1998.  In its 2007 ruling, the Ninth Circuit panel asked that Judge Jenkins limit the class to exclude workers who were not employed by Wal-Mart at the time the plaintiffs filed their initial class action complaint on June 19, 2001.

[Editor's Note:  Full coverage will be in the May 6 issue of Mealey's Litigation Report:  Class Actions.  In the meantime, the opinion is available at or by calling the Customer Support Department at 1-800-833-9844.  Document #43-100506-023Z.  For all of your legal news needs, please visit]

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For more information, call editor David Eldreth at 610-205-1118, or e-mail him at