Wal-Mart's effort to kill the new iteration of the long-running Dukes gender discrimination suit with an early trip to the Ninth Circuit was rebuffed Monday.
U.S. District Judge Charles Breyer of San Francisco wrote in a nine-page order denying Wal-Mart's request for an interlocutory appeal that early review wouldn't "materially advance" the litigation and that there is "no substantial grounds for difference of opinion" on whether the plaintiffs have yet demonstrated a sufficient commonality of discrimination against female employees on a corporation-wide basis.
In September Breyer rejected Wal-Mart's bid to dismiss the claims of a smaller proposed class of women in Dukes v. Wal-Mart, 01-02252. A year earlier, the U.S. Supreme Court ruled that a nationwide class was too big to pursue similar gender discrimination claims. In the new version of the suit, the same lead named plaintiff alleges that Wal-Mart managers deliberately discriminate against female employees in select regions of Wal-Mart stores based on their sex, denying them promotions and pay increases.
In his order, Breyer wrote that Wal-Mart, in moving for the interlocutory appeal before he rules on class certification, "now doubles down on its position that plaintiff's motion for class certification does not deserve to see the light of day." To Wal-Mart's point that there is a lack of detail regarding a "common mode of exercising discretion," Breyer counters that, the "record is devoid of evidence and detail on that point on account of Wal-Mart's insistence on litigating (and relitigating) class certification prior to a motion for class certification."
While Breyer acknowledged that the case raises a novel question about statute of limitations, he said the case would benefit from developing a record.
"At this point in the litigation, an interlocutory appeal could dispose of plaintiffs' class claimsbut so could the class certification motion set to be submitted in January, which would have the added benefit of developing the record on the Rule 23 commonality issue," he wrote.
Theodore Boutrous Jr. of Gibson, Dunn & Crutcher, who represents Wal-Mart, did not respond to a request for comment.
Brad Seligman, of Berkeley's The Impact Fund, said he tentatively expects to file a motion for class certification on April 13.
Cynthia Foster writes for The Recorder, a Daily Report affiliate in San Francisco.