Dukes

Theodore J. Boutrous, Jr., (argued & briefed) Gibson, Dunn & Crutcher, Los Angeles, CA, for the defendant-appellant-cross-appellee.

Brad Seligman (argued), Jocelyn D. Larkin, The Impact Fund, Berkeley, CA; Joseph M. Sellers, Christine E. Webber, Julie Goldsmith Reiser, Cohen, Milstein, Hausfeld & Toll, Washington, D.C.; Debra Gardner, Public Justice Center, Baltimore, MD; Irma D. Herrera, Debra A. Smith, Equal Rights Advocates, Steve Stemerman, Elizabeth A. Lawrence, Davis, Cowell & Bowe, LLP, San Francisco, CA; Stephen Tinkler, Charles Firth, Tinkler & Firth, Merit Bennett, Merit Bennett, P.C., Santa Fe, NM, (briefed) for the plaintiffs-appellees-cross appellants.

Before: HARRY PREGERSON, ANDREW J. KLEINFELD, and HAWKINS, Circuit Judges.

Opinion by Judge PREGERSONI Dissent by Judge KLEINFELD.

The petition for panel rehearing is DENIED.

The panel's Opinion and Dissent filed February 6, 2007, appearing at 474 F.3d 1214 (9th Cir.2007), are withdrawn. The new Opinion and Dissent are filed concurrently with this Order.

The petition for rehearing en banc is DENIED as moot. The parties may file a new petition for rehearing or suggestion for rehearing en banc as provided for by…

Opinion by Judge PREGERSON1 Dissent by Judge KLEINFELD.

ORDER AND OPINION

ORDER

The petition for panel rehearing is DENIED.

The panel’s Opinion and Dissent filed February 6, 2007, appearing at 474 F.3d 1214 (9th Cir.2007), are withdrawn. The new Opinion and Dissent are filed concurrently with this Order.

The petition for rehearing en banc is DENIED as moot. The parties may file a new petition for rehearing or suggestion for rehearing en banc as provided for by Federal Rule of Appellate Procedure 40.

OPINION

Plaintiffs filed a class action suit against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act. The district court certified the class with minor modifications to Plaintiffs’ proposed class. We have jurisdiction under 28 U.S.C. § 1292 (e). For the reasons set forth below, we affirm the district court, concluding that it did not abuse its discretion when it certified the class.

BACKGROUND

Plaintiffs’ Third Amended Complaint, brought on behalf of six named plaintiffs and all others similarly situated, asserts claims against Wal-Mart for sex discrimination under Title VII of the 1964 Civil Rights Act. Plaintiffs allege that women…

dissenting:

I respectfully dissent. The majority’s new opinion does not solve the problems of its previous opinion. Class action certification still violates Rule 23, likely deprives many women who have been discriminated against of the money they are entitled to, and deprives Wal-Mart of its constitutional rights to jury trial and due process of law.

Class actions may not be brought in federal court unless they satisfy, among other things, the criteria of Federal Rule of Civil Procedure 23(a):

*1194 These criteria are called, for short: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. 2 In the somewhat analogous ease of General Telephone Co. of the Southwest v. Falcon, 3 the Supreme Court held that class certification had been inappropriate, where a Mexican-American who was not promoted had been allowed to sue on behalf of all Mexican-American applicants for employment. The Court held that the Rule 23 requirements apply fully to Title VII class actions, and rejected the “ ‘tacit assumption’ underlying the [rejected] across-the-board rule that ‘all will be well for surely the plaintiff will win and manna will fall on all members of the…