After suffering defeat in the United States Supreme Court, Plaintiffs in Dukes et al. v. Wal-Mart Stores, Inc. returned to court in California in an attempt to certify a newly defined and smaller class of 150,000 current and former female employees. On August 2, 2013, Judge Charles R. Breyer of the United States District Court for the Northern District of California denied Plaintiffs’ Motion for Class Certification, which leaves each member of the proposed class to pursue her claims individually against Wal-Mart. Dukes v. Wal-Mart Stores, Inc., No. 3:10-CV-03005-CRB, Slip Op. at 2 (N.D. Cal. Aug. 2, 2013).

Following the Supreme Court’s decision reversing certification of a class of 1.5 million members, Plaintiffs amended their complaint in the narrow the scope of the proposed class to Wal-Mart’s California regions. Plaintiffs assert Title VII disparate treatment and disparate impact claims, alleging that Wal-Mart discriminated against women in making pay decisions and promotion decisions.

Analyzing the Plaintiff’s latest attempt at certification, Judge Breyer recognized that Plaintiffs had significantly cut down the “raw number” of proposed class members. Nonetheless, the court held that Plaintiffs continue to challenge different kinds of decisions across hundreds of decision makers. The court rejected Plaintiffs’ claim that they were presenting a different case, instead finding that Plaintiffs presented “essentially a scaled-down version of the same case with new labels on old arguments.”

With regard to Plaintiffs’ disparate impact claim, the court rejected Plaintiffs’ reliance on employment practices guiding local managers’ discretion. The court found that the alleged practices either did not apply across the proposed class for the proposed class period or boiled down to delegating discretion, which the district court noted the Supreme Court previously held insufficient to meet the commonality requirement of class certification.

The district court concluded the opinion by noting that it was “revealing” that Plaintiffs had no particular logic in scaling down the proposed class. Indeed, the court observed that, while smaller in size, Plaintiffs have no evidence that the regions included in the narrowed class are unique from other Wal-Mart regions. Accordingly, the district denied class certification.

The court’s emphasis on the issue that “Plaintiffs’ proposed class suffers from the same problems identified by the Supreme Court” dealt a blow to Plaintiffs’ strategy to litigate their claims on a smaller scale focused on regions, and suggests Plaintiffs must seriously consider the details of the high court’s ruling denying class certification before attempting to revive or reformulate the same claims against Wal-Mart.