On December 10, 2012, the California District Court denied Wal-Mart’s motion for an interlocutory appeal in a putative class action filed in the wake of the Supreme Court’s decision not permitting certification of a nationwide class.  Dukes v. Wal-Mart, No. C01-02252 CRB, slip op. (N.D. Cal. Dec. 10, 2012).  In September, the district court had denied Wal-Mart’s Motion to dismiss the case based on tolling arguments and commonality grounds. (See our September 27, 2012 blog.)

Wal-Mart then requested certification of that Order for interlocutory appeal under 28 U.S.C. § 1292(b). The court, however, denied the request, ruling that “(1) immediate appeal would not, at this time, materially advance the ultimate termination of the litigation in light of the impending class certification motion, and (2) no substantial grounds for difference of opinion exist regarding the commonality issue.”  Among other things, the court held that: “[a]t this point in the litigation, an interlocutory appeal could dispose of Plaintiffs’ class claims—but so could the class certification motion set to be submitted in January, which would have the added benefit of developing the record on the Rule 23 commonality issue.”

Wal-Mart’s strategy of obtaining an early dismissal may not have been successful, but its efforts in educating the court early on about the evidentiary hurdles that plaintiffs will face on its commonality burden, may ultimately inform the court as it determines the propriety of class certification.