On August 2, 2013, Judge Breyer denied the renewed motion for class certification filed in Dukes v. Wal-Mart after remand. Dukes v. Wal-Mart Stores, Inc., 2013 WL 3993000 (N.D. Cal. Aug. 2, 2013).
The renewed motion sought certification of a much smaller class, consisting of employees of stores in Wal-Mart's "California regions." The class of 150,000 proposed members was only 10% the size of the nationwide class of 1.5 million originally certified by Judge Jenkins. But Judge Breyer found that the smaller proposed class "suffers from the same problems identified by the Supreme Court, but on a somewhat smaller scale." Id. at *10.
Interestingly, he said that what the plaintiffs should have done was "identify an employment practice and define a class around it." Id. He was "not impressed" with their effort to connect Wal-Mart's disparate treatment of women (which the statistical evidence appears to establish) with assertedly common practices that they had not identified or advanced in their earlier motion.