by Art Gutman Ph.D., Professor, Florida Institute of Technology

We analyzed the Supreme Court’s ruling in an Alert posted on June 21, 2011. We then reported that the plaintiffs requested additional time to modify the class and petition for recertification. The new developments are that the plaintiffs modified and reduced the class size, Wal-Mart moved to dismiss, and District Court Judge Charles Breyer rejected Wal-Mart’s motion in an opinion dated September 21, 2012 [2012 U.S. Dist. LEXIS 135554]. It is important to emphasize that Breyer’s ruling in no way implies that the plaintiffs will succeed in certifying the new class; only that it can go forward with the certification process.

This is the fourth time the plaintiffs have amended their complaint, this time reducing the proposed size from 1.5 million to “somewhere between one and several hundred thousand prospective members.” Wal-Mart’s claim is that “the newly proposed class suffers--albeit on a smaller scale--from the same kinds of problems that the Supreme Court said barred nationwide class certification.”

So what’s new here? For one thing, the old class comprised employees from 41 regions, whereas the new class comprises employees from 4 regions, entirely in California. The new complaint also excluded women who are managers and licensed pharmacists. According to Judge Breyer, the basic theory behind the claims has changed little, but for both the pattern or practice and disparate impact claims.” However, Breyer noted further that the original claims were rejected for lack of proof of their theory of discrimination and that the plaintiffs were now offering proof of a “culture and philosophy of gender bias shared by the relevant decisionmakers” In the words of Judge Breyer:

For example, Plaintiffs say that all California store managers are required to attend centralized management training where they are told that the gender disparity in senior management is attributable to men being "more aggressive in achieving those levels of responsibility," and are cautioned that efforts to promote women could lead to the selection of less qualified candidates. Plaintiffs also allege that at a meeting of all District Managers, Wal-Mart's CEO made statements that could be interpreted as communicating that men had traits that were more likely to make them successful.

It should be noted that the standard for dismissal of the claim is relatively stiff in that the plaintiff’s arguments must be accepted as true. Therefore, this is not a ruling on Breyer’s part that the above argument is true, but rather, that the plaintiffs may attempt to prove that it's true.

In short, the Dukes plaintiffs are advancing the same themes as before, but with a reduced class, and with proof there is commonality among the class members that they will now be able to make.

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