In McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., ___ F.3d ___ (7th Cir. Feb. 24, 2012), the Seventh Circuit (Judge Posner) reversed an order denying class certification of Title VII race discrimination claims under Rules 23(b)(2) and (c)(4). (The latter provision allows class treatment of "particular issues.")
The opinion is worth reading for its discussion of Dukes, which begins:
The basis of the plaintiffs’ renewed motion for class certification in the present case was the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), handed down a month earlier. That was an important development in the law governing class certification in employment discrimination cases—possibly a milestone. It may seem a perverse basis for a renewed motion for class certification, since the Supreme Court reversed a grant of certification in what the defendant in our case insists is a case just like this one. But the district judge, though he again denied certification, didn’t think the plaintiffs were perverse in basing their new motion on Wal-Mart. .... The judge was right.
Slip op. at 11-12.