The Ninth Circuit substantially revamped its opinion in Dukes v. Wal-Mart, the largest class action ever certified. ?While the result is the same – class-certification upheld by a 2-1 vote – there are some significant modifications to the earlier opinion.?? The appellate court made clear that the trial court must consider all evidence relating to Rule 23 even if that evidence overlaps with merits evidence.?? It also held that people who were no longer employees at the time the complaint was filed cannot be part of a class certified under Rule 23(b)(2).? ?The court retreated from its earlier holding that Daubert never applies to expert testimony ?at ?the ?class-certification ?stage.???? The panel ruled that Wal-Mart did not make a proper Daubert? challenge? to? the? expert? testimony submitted because it simply attacked the expert?s conclusions about its culture of bias.? ?Judge Kleinfeld again dissented. ?Dukes v. Wal-Mart, No. 04-16688 (Dec. 11, 2007; Pregerson; Hawkins; Kleinfeld).