Court of Appeals’ Panel Announces New Standards for Certifying Title VII Class Actions in the Ninth Circuit: Revised Decision in Dukes v. Wal-Mart, Inc. Sets Forth Better Standard Governing Class Certification But Still Approves a Grossly Outsized Class

The Ninth Circuit panel that announced permissive standards for class certification of Title VII actions last February in Dukes v. Wal-Mart, Inc., 474 F.3d 1214 (9th Cir. 2007) (Dukes I), now has revised its earlier class certification rulings in a decision that supersedes the February decision. Dukes v. Wal-Mart, Inc., __ F.3d __, Nos. 04-16688 and 04-16720, 2007 WL 4303055 (9th Cir. Dec. 11, 2007) (Dukes II). To view the Morgan Lewis LawFlash summarizing the Ninth Circuit’s February decision, please visit http://www.morganlewis.com/pubs/LEPG_Dukes.v.WalMart_LF_15feb07.pdf.

Several of the Ninth Circuit’s revisions provide more reasonable standards governing class certification: (1) a district court must consider the parties’ class certification evidence even if it overlaps substantially with the merits of the claims; (2) Fed. R. Evid. 702’s reliability and relevance standards for expert testimony apply at the class certification stage; and (3) individuals who were not employed when the operative complaint was filed cannot be part of a class certified under Rule 23(b)(2) because they lack standing to seek injunctive relief.