December 12, 2007

The Ninth Circuit, ten months after its 2-1 decision in Dukes v. Wal-Mart, withdraws its old opinion and has issued a new 2-1 decision that comes to the same result in response to the motion for rehearing. The new opinion is four pages shorter than the old opinion, and the new dissent is three pages longer than the old dissent. I haven't yet made a page by page comparison, but the main change appears to be punting on the question of the due process violation of the certification where the old opinion expressly denied the claim of a violation. Judge Kleinfeld's dissent is once again persuasive. Wal-Mart will surely file a new motion for en banc rehearing, and the loser of the proceedings (if any) resulting from that motion will surely file a cert petition.