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The Ninth Circuit U.S. Court of Appeals is grinding forward in the huge national class action involving sex discrimination at Wal-Mart. A three-judge panel issued a new 2-1 ruling Tuesday in favor of certifying the plaintiff class, similar to an opinion issued in February. Judges Harry Pregerson and Michael Daly Hawkins sided with the plaintiffs, while Judge Andrew Kleinfeld remained in dissent. The largest substantive change involved standing within the class: The panel instructed U.S. District Judge Martin Jenkins to consider dropping class members who were no longer employed by Wal-Mart at the time the complaint was filed. However, the circuit shot down Wal-Mart’s argument that this standing issue should tank the entire class. “We are confident that the primary relief sought by these plaintiffs remains declaratory and injunctive in nature,” Pregerson wrote, “notwithstanding their request to also be ‘made whole’ in a monetary sense.” Once again, Kleinfeld disagreed: “For anyone but the richest people in the world, billions of dollars are going to predominate over words and solemn commands and promises about how to behave in the future.” Plaintiff lawyer Brad Seligman of Berkeley’s The Impact Fund said the revised panel ruling should weaken any application for en banc review, and in any case make that process go faster. Wal-Mart’s lawyer Theodore Boutrous Jr. at Gibson, Dunn & Crutcher said he looks forward to en banc review. “We agree with Judge Kleinfeld’s dissent that the revisions do not cure the problems with the panel’s ruling,” he said.

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