Today, the Ninth Circuit granted en banc rehearing in Dukes v. Wal-Mart, Inc., in which the three-judge panel (with one judge dissenting) affirmed an order granting class certification of plaintiffs' gender discrimination claims under Title VII. Dukes v. Wal-Mart, Inc., 509 F.3d 1168 (9th Cir. 2007). The order granting rehearing reads:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
Judges McKeown, Rawlinson and Bybee did not participate in the deliberations or vote in this case.