In an unusual twist, the Seventh Circuit relied upon the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), to reverse the denial of class certification in an employment case.  In McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012) (No. 11-3639), the district court denied class certification in 2010.  Plaintiffs did not appeal.  Plaintiffs renewed their motion for certification in 2011, which the district court again denied.  Plaintiff sought review, which the Seventh Circuit accepted.  The court engaged in a lengthy analysis of whether the 14-day limitation for seeking interlocutory appeal under Rule 23(f) was jurisdictional, and if so, whether the failure to appeal the first denial foreclosed review of the second.  The court found Rule 23(f) does not bar an appellate court from hearing an appeal of the denial of a renewed motion for class certification where the renewed motion addresses a substantial issue.  The court concluded that the renewed motion, which was based on Wal-Mart, was worthy of review.  The court then distinguished the alleged discrimination at issue in McReynolds from that in Wal-Mart.  Unlike in Wal-Mart, in which the store managers had total discretion, the policy challenged in McReynolds involved only a limited exercise of discretion.  First, the policy permitted employees to select teams.  Plaintiffs argued the teams were drawn on racial lines, which was alleged to have the effect of excluding minority brokers from the best opportunities.  Second, the policy redistributed accounts of a departed broker based on the success of the remaining brokers, which could perpetuate inequality.  Whether these two aspects of Merrill Lynch’s employment policies created a disparate impact could be tried in a common case.  Other issues – such as whether individual brokers were victims of these policies and what damages, if any, resulted – would need to be decided individually.