The district court certified a sprawling nationwide class consisting of all current and former female employees of Wal-Mart Stores, Inc., estimated at the time to comprise at least 1.5 million women. The Ninth Circuit's 6-5 en banc decision ... adopts standards that violate the rights of both defendants and absent class members and contradicts decisions of this Court and other circuits The Ninth Circuit created an acknowledged three-way circuit split on the standard for determining when claims for monetary relief can be certified as a class action. ... The majority expressly rejected both of the standards previously articulated in the circuits (one of which had been applied by the district court) and announced a new standard, thus exacerbating the long-standing conflict and confusion on this issue in the lower courts.

The case was filed in 2001 by female Wal-Mart employees [class website] who contend that Wal-Mart's nationwide policies result in lower pay for women than men in comparable positions and longer waits for management promotions than men. The Ninth Circuit granted an en banc rehearing [JURIST report] to Wal-Mart last year. According to the order, a majority of the Ninth Circuit judges, excluding the three judges who heard an earlier appeal [JURIST report] in which class certification was upheld, voted in favor of an en banc hearing. A three-judge panel of the Ninth Circuit originally ruled against Wal-Mart's appeal of the class certification in February 2007, then issued a new opinion [text, PDF] in conjunction with its decision in December 2007. Wal-Mart appealed [JURIST report] to the Ninth Circuit in 2005, arguing that the six lead plaintiffs were not typical or common of the class. Wal-Mart also objected to the size of the class certified, which it said violates its due process rights. Wal-Mart argued that its stores operate independently and should be sued individually, while plaintiffs' lawyers countered that individual lawsuits would be impractical. The district court also rejected Wal-Mart's claim that the class size was "impractical on its face" and approved a statistical formula for paying damages if discrimination is proven.