*1 correctly trict court denied Shaw’s motion

to vacate the default judgment.

AFFIRMED.

Betty DUKES; Surgeson; Patricia Cleo

Page; Gunter; Deborah Karen Wil

liamson; Kwapnoski; Christine Edith

Arana, Plaintiffs-Appellees,

WAL-MART, INC., Defendant-

Appellant.

Betty Dukes; Surgeson; Patricia Cleo

Page; Gunter; Deborah Karen Wil

liamson; Kwapnoski; Christine Edith

Arana, Plaintiffs-Appellants,

Wal-Mart, Inc., Defendant-Appellee. 04-16688,

Nos. 04-16720.

United States Court of Appeals,

Ninth Circuit.

Argued Aug. Submitted 2005.

Filed Dec. *6 Boutrous, Jr., (argued &

Theodore J. Crutcher, briefed) Gibson, Los Dunn & CA, defendant-appellant- for the Angeles, cross-appellee. Jocelyn D. (argued), Seligman

Brad CA; Fund, Berkeley, Larkin, Impact The Webber, Sellers, E. Joseph M. Christine Cohen, Milstein, Reiser, Goldsmith Julie D.C.; Toll, Washington, Debra Hausfeld & Baltimore, Center, Gardner, Public Justice Smith, Herrera, A. MD; Debra Irma D. Advocates, Stemer- Steve Rights Equal Davis, Lawrence, Co- man, A. Elizabeth Francisco, CA; LLP, Bowe, San &well Firth, Tinkler, Tinkler & Charles Stephen Firth, Bennett, Bennett, P.C., situated, similarly Merit Merit and all others asserts (briefed) Fe, NM, plaintiffs- Santa for the claims Wal-Mart for sex discrimi- appellees-cross appellants. nation Title under VII of the 1964 Civil

Rights allege Act. Plaintiffs that women (1) employed in Wal-Mart paid stores: are than in comparable positions, less men de- spite having higher performance ratings (2) greater seniority, and receive few- PREGERSON, longer promotions er—and wait to in- Before: HARRY for— KLEINFELD, management positions store than ANDREW J. men. HAWKINS, Judges. Circuit Plaintiffs contend that strong, Wal-Mart’s centralized structure fosters or facilitates Opinion by Judge PREGERSON1 discrimination, gender stereotyping and by Judge Dissent KLEINFELD. policies practices underlying discriminatory this treatment are consis- ORDER AND OPINION stores, throughout tent Wal-Mart and that ORDER this discrimination common to all women who work or have worked in Wal-Mart petition The for panel rehearing is DE- stores. NIED. panel’s

The Opinion and Dissent filed 28, 2003, April On Plaintiffs filed a mo- 6, 2007, February appearing at 474 F.3d certify tion to a nationwide class of women (9th Cir.2007), are withdrawn. The subjected who have been to Wal-Mart’s Opinion new Dissent filed concur- allegedly discriminatory pay pro- rently with this Order. policies. motions proposed The class con- sists of employed range women in a petition rehearing

The en for banc is positions part-time en- parties may DENIED as moot. The file a —from try-level hourly employees petition new to salaried rehearing suggestion for managers for is estimated to rehearing provided en banc as include —and Federal more than Appellate Rule of 1.5 million women. Procedure 40. The class *7 injunctive relief, seeks declaratory and

OPINION pay, punitive damages, back and but does PREGERSON, not seek traditional Judge: “compensatory” Circuit dam- ages. Plaintiffs filed a class action suit alleging Wal-Mart sexual discrimination proposed Plaintiffs the district under Title VII of the 1964 Rights Civil certify following court pursuant Act. The district court certified the class to Federal Rule of Civil Procedure 23:

with minor pro- modifications to Plaintiffs’ All employed any women at Wal-Mart posed jurisdiction class. We have under any domestic retail store at time since 1292(e). § 28 U.S.C. For the reasons set 26, 1998, December who have been or below, court, forth we affirm the district subjected to Wal-Mart’s chal- concluding that it did not abuse its discre- lenged pay management and track pro- when it tion certified the class. policies practices. motions

BACKGROUND (“Dukes Stores, Dukes v. Wal-Mart Inc. I”), 137, (N.D.Cal. Plaintiffs’ Third 222 Complaint, Amended F.R.D. 141-42 2004). brought on behalf of six named

1175 erroneously court 23, 2003, serting that the district parties after the September On discovery many backpay extensive relief for conducted limited the had briefs, court the district copious filed claims. promotion Plaintiffs’ hearing, argument. At oral heard na- the “historic” emphasized DISCUSSION motion, as it inasmuch Plaintiffs’ ture of 1.5 mil- approximately a class concerns Scope of Review I. Standard in one or who work or worked

lion women a district court’s deci review We 3,400 in stores more of Wal-Mart’s for abuse regarding class certification sion The court any time since 1998. regions Co., Boeing See Staton v. of discretion. but concerns acknowledged Wal-Mart’s Cir.2003). (9th The 327 F.3d that, large, the class size was noted while certify to a class is district court’s decision were not unusual. the issues and will be subject “very to limited” review Proceedings I. District Court showing that “only upon strong reversed 21, 2004, court is- the district decision was a clear On June the district court’s granting Davis, eighty-four-page order Armstrong sued an v. discretion.” abuse of motion denying part Plaintiffs’ (9th Cir.2001) (citation part 275 F.3d I, 222 Dukes certification. See for class omitted); Speech v. Free see also Gonzales Plain- respect to F.R.D. at 187-88. With (9th Cir.2005) Coal., 613, 618 pay, the district equal for tiffs’ claims (“Abuse highly is ‘a deferen of discretion motion as to is- granted Plaintiffs’ standard,’ appellate under which the tial and all alleged discrimination sues of substitute its ‘view of what court cannot respect relief. With requested forms of justification for that constitutes substantial claim, the court’s promotion Plaintiffs’ rather, court’; ‘is the review of the district mixed. The court certified finding was that the district court’s assuring limited to respect with to issues proposed class ” (ci has a basis reason.’ determination (including liability alleged discrimination Mancusi, omitted)); Blyden v. tation injunctive well as punitive damages, as (“A (2d Cir.1999) district relief); however, the court declaratory certify a class is re court’s decision respect class with rejected proposed discretion, and ‘[a] for abuse of viewed data request pay for back because great even reviewing court must exercise were challenged promotions to the relating the district court has deference when er Both for all class members. not available declined a class than when it has certified appealed. parties ” (citation omitted)); Doninger to do so.’ Inc., Bell, Pac. Nw. Appeal The II. Cir.1997) trial (“[Jjudgment of the *8 Proce- Federal Rule of Civil Pursuant to greatest respect given the court should 23(f), contending appealed, dure (citation omit and the broadest discretion” (1) by: con- the district court erred ted)). if it its discretion A court abuses 23(a)’s class met Rule cluding that the legal criterion. applies impermissible typicality requirements; commonality and Gleich, 937, 946 318 F.3d Molski v. See (2) ability to re- eliminating Wal-Mart’s (9th Cir.2003). Moreover, the district claims; and individual Plaintiff’s spond to applicabil the findings as to court’s factual (3) Plaintiffs’ recognize that failing to entitled to the 23 criteria are ity of Rule monetary predominated relief claims for to such deter given traditional deference injunctive or declara- claims for over their Local Joint Executive minations. See cross-appealed, as- tory Plaintiffs relief. 1176 Sands, damages 244 tence of issues is a Vegas

Trust Fund v. Las F.3d individual Cir.2001) (citation omitted). (9th 1152, conjecture.”). matter of 1161 provides Rule 23 district courts II. Class Certification and Rule 23 with broad discretion to determine wheth may certify A a only district court class certified, a class should be and to revisit er “(1) join- if: the class is so numerous that throughout legal pro that certification the (2) impracticable; der of all members is Armstrong the court. ceedings before See questions there are of law and fact com- Davis, 849, n. v. 275 F.3d 872 28 (3) class; mon or to the the claims defens- Cir.2001). disproves If later evidence representative parties typical es of the are Plaintiffs’ contentions that common issues class; of the or the claims defenses of the can predominate, district court (4) representative parties fairly the will class, stage modify decertify or the see adequately protect the interests of the Falcon, Tel. Co. Sw. v. 457 Gen. U.S. of 23(a). class.” Fed.R.Civ.P. 147, 160, 2364, 72 L.Ed.2d 740 S.Ct. The district court must also find that at (1982) (“Even after certification order is following least one of the three conditions entered, judge modify the remains free to (1) prosecution sepa- satisfied: the subsequent developments it in in light (a) rate actions would create a risk of: man litigation.”), variety or use a (b) adjudications varying inconsistent or or agement devices to address individual adjudications dispositive individual of the arisen, ized issues that have see In re Visa a party interests of other members not Check/MasterMoney Litig., Antitrust (2) adjudications; party opposing those (2d Cir.2001); 1 Newberg on has acted or to act refused on § Class Actions 4.26 at 4-91 to 4-97.1 class; grounds generally applicable to the Our review is limited whether (3) questions of law or fact common correctly the district court selected predominate to the members of the class applied Bogus Rule 23’s criteria. See any questions affecting only over individu- Ass’n., Speech Hearing Am. & 582 F.2d members, superior al and a class action is (3d Cir.1978); Mgmt. Waste Hold to other available fair methods for the ings, Mowbray, Inc. v. 208 F.3d adjudication efficient controversy. of the (1st Cir.2000) (“An abuse occurs when a 23(b). See Fed.R.Civ.P. court, making discretionary ruling, party seeking The certification factor, upon an improper relies omits con showing bears burden each of sideration of factor entitled to substantial 23(a) requirements the four of Rule and at weight, or mulls the correct mix of factors 23(b) requirement least one of Rule have but makes a clear judgment error them.”). been met. Zinser v. See Research Thus, assaying if Plaintiffs dem Accufix Inst., Inc., 1180, 1186, amended, require onstrate meet Rule 23’s (9th Cir.2001). 273 F.3d 1266 ments, they should be allowed to pursue their action as a class. See Smilow v. Sw. 23(a) A. Rule Inc., (1st Sys., Bell Mobile Cir.2003) (“There even less reason to The class this case is broad and di- decertify possible a class It encompasses approximately where the exis- verse. 1.5 I, acknowledged, authority 1. As the district court Dukes courts retain the to amend or decer- *9 if, although tify 222 F.R.D. federal courts are a class based on information not avail- longer permitted engage anticipated no in “conditional able or circumstances not when certification,'' certified, advisory Fed. R. Civ. Proc. the class was the court finds that (2003 amends.), *10 (2) below, Expert Opinion that it was explained more detail within the district court’s discretion to find presented Plaintiffs evidence from commonality prerequisite to class that the Bielby, sociologist, Dr. a William inter was satisfied. See Fed. certification pret explain suggest that and facts 23(a)(2). R.Civ.P. promotes strong that Wal-Mart has and a corporate may culture —a culture that in a. a “Significant Corporate Proof’ of gender stereotyping. Bielby clude Dr. Policy Discrimination of on, opinion among things, based his other presented categories four Plaintiffs managers’ deposition testimony; Wal-Mart (1) supporting evidence: facts the exis- charts; organizational correspondence, company-wide policies prac- tence of and memos, reports, presentations relating and (2) tices; expert opinions supporting the personnel policy practice, diversity, and company-wide policies existence of and issues; equal and employment opportunity (3) practices; expert and evi- statistical describing documents the culture and his gender disparities dence of class-wide at- tory company; large body of the and a (4) discrimination; tributable to and anec- organizational social science research on dotal evidence from class members around policy practice and on workplace and bias. country discriminatory attitudes Bielby by Dr. a employing testified by management. held or tolerated See analysis,”3 “social framework he examined I, 222 F.R.D. at Dukes 145. Wal-Mart poli- distinctive features of Wal-Mart’s contends that this evidence is not sufficient practices cies and and evaluated them to raise an inference of discrimination.

“against what social science shows to be (1) Factual Evidence factors that create and sustain bias Bielby’s those that minimize bias.” In Dr. (1) presented Plaintiffs evidence uni- of: opinion, “social science research demon- personnel management form structure gender stereotypes strates that are espe- (2) stores; headquar- across Wal-Mart cially likely personnel to influence deci- oversight opera- ters’s extensive of store subjective sions when are based on tions, company-wide policies governing pay factors, substantial because decision-maker decisions, promotion strong, and a people discretion tends to allow to ‘seek (3) culture; corporate centralized consis- out and retain in- stereotyping-confirming gender-related disparities every tent do- ignore formation and or minimize informa- region mestic of the company. Such evi- ” I, stereotypes.’ tion that defies Dukes supports dence Plaintiffs’ contention that Bielby F.R.D. at operates highly a 154. Dr. concluded: centralized (1) company promotes policies common to Wal-Mart’s centralized coordina- tion, all single system strong organizational stores and reinforced maintains culture, oversight. uniformity Wal-Mart does not challenge personnel sustains (2) this evidence. policy practice; there are underlying presented commonality the evidence also relate to the question on the Dataproducts ultimately commonality merits of the case.” Hanon concluded that Falcon, Cir.1992). Corp., prerequisite was satisfied. If See 2364; Hanon, rejected U.S. at the district court had Wal-Mart’s ar- 102 S.Ct. guments regarding commonality solely at 509. be- issues,” they overlapped cause with "merits However, that would have been error. as we description 3. For a "social framework sections, explain following in the analysis,” Lariy the district see John Monahan and Walk- but, instead, er, court did not do this conducted Social Science in the Law: Cases and Ma- (4th ed.1998). "rigorous analysis” conflicting of the evidence terials

1179 401), and relevance standard equal Fed.R.Evid. in Wal-Mart’s deficiencies significant (3) one”), testing Bielby’s Dr. and “is a liberal practices; policies employment reliability” testimony for “Daubert policies would personnel that Wal-Mart’s objections. promotion deci- have addressed Wal-Mart’s pay and not practices make simply bias. See id. revealed what Wal- gender to It would have sions vulnerable and courts have Mart itself admitted has Bielby’s third challenges Dr. Wal-Mart analyzed so properly long accepted: because vague imprecise as conclusion data, by like that offered Dr. cial science is “vulnera- that Wal-Mart he concluded Bielby, may plain value to probative add stereotyping but gender to ble” bias Price class action claims. See Water tiffs’ discriminatory identify specific failed to 228, 235-36, 490 Hopkins, house v. U.S. Specifically, Wal- policy at Wal-Mart. (1989) 1775, 255, 109 104 L.Ed.2d 268 S.Ct. Bielby’s testimony that Dr. Mart contends by (considering similar evidence offered expert not the standards does meet expert social psychologist). in Federal Rule of testimony set forth Merrell Dow and Daubert v. Evidence 702 Accordingly, conten Wal-Mart’s 579, (“Daubert ”), Pharm., I 509 U.S. Inc. to required that the court was tion district (1993), 2786, 125 L.Ed.2d 469 113 S.Ct. Bielby’s testimony to the Dau- subject Dr. act as a a trial court must which held that test, he because the simply bert conclusion to determining whether “gatekeeper” unpersuasive cer reached seemed absent expert evidence. admit or exclude evidence, misplaced. is corroborating tain Daubert, 595, 509 U.S. at 113 S.Ct. See argu made identical Wal-Mart (“The focus, course, solely must be 2786 and the district to district court ment methodology, not principles on on rejected it. did properly court they generate.”). While conclusions that not) (and challenge Bielby’s Dr. not does ultimately agree with Wal-Mart jury may findings that his or contend methodology that, specific of a discrimi the absence re not “do[ ] lack relevance because Wal-Mart, it natory promulgated Daubert, policy case,” any late to issue believe, solely Dr. hard to based on 2786, is challenges but 113 S.Ct. U.S. analysis, science that Wal- Bielby’s social can inferences only whether certain gender in actual discrimina engaged Mart his Be drawn from data. persuasively tion, must be left question require a court to Daubert does not cause litigation. At the class stage merits on its admit or exclude evidence based enough Dr. stage, it is rather, certification requires persuasiveness, but Bielby properly-analyzed, scien presented or exclude evidence based court to admit tending to show tifically evidence relevance, reliable reliability and on its scientific i.e., “Does (evidence question of that a common 587-90, id. at 113 S.Ct. fact — “ decentralized, subjec policy Wal-Mart’s ‘any tendency to make relevant if it has making operate decision employment tive any fact that is of conse the existence of employ female to discriminate action determination of the quence to the to all members respect with than it ees?”—exists probable or less probable more ” and, thus, we This he did (citing of the class.4 without the evidence’ would be R.R., (2d II.A.2.b, Commuter Part this North 4. As further discussed infra 1999), grounds by re many held "dele- In others have overruled on other Cir. ’’), pursuant company- (“IPO gation supervisors, Offering Litig. Sec. Initial Public authority discretionary id.; with- policies, See, (2d Cir.2006). wide e.g., 39-42 gives oversight ... to com- rise Co., out sufficient Boeing Staton v. warranting questions of fact certification mon Cir.2003) argument (rejecting that “decision- Caridad v. Metro- proposed class.” Drogin, Dr. Richard Plaintiffs’ accep- find no in the district court’s error *12 statistician, data at a analyzed regional Bielby’s support Dr. evidence to tance of separate regression analy- level. He ran commonality. finding its of forty-one regions5 con ses for each of the taining stores.6 He concluded Wal-Mart (3) Statistical Evidence statistically significant that “there are dis It is well-established that com parities between men and women at Wal- by an monality may raising be established compensation and pro Mart terms of discrimination inference of class-wide motions, disparities these are wide through analysis. the use of statistical See spread regions, across and that can Candad, 292, 191 F.3d at overruled on explained only by gender discrimina IPO, at grounds by other In re 471 F.3d I, 222 F.R.D. at Dr. tion.” Dukes 154. 39-42; Stastny also v. S. Bell Tel. & see Bendick, Marc Plaintiffs’ labor economics (4th Cir.1980) Co., 267, Tel. 628 F.2d 278 expert, a “bench-marking” conducted (recognizing showing that statistical data twenty study comparing Wal-Mart with comparable disparities experienced by pro competitors its and concluded that Wal- employees may tected raise an inference of a promotes percentage Mart smaller discrimination). competitors.7 women than policy practice or its See id. non-discriminatory making Boeing per- independent vant varia- is too decentralized to education, (e.g., experience, perform- mit a class that combines from dis- bles Indus., locales”); ance, parate Shipes Trinity etc.), v. 987 the results will indicate whether 311, Cir.1993) (5th (upholding F.2d com- 316 any salary disparities gen- are attributable to monality finding company’s where all of (thereby raising der an inference of discrimi- plants subjective “utilized the same criteria in nation) disparities or whether the are attribut- decisions”); making personnel v. Am. Cox (and thereby refuting able to other factors Co., 1546, (11th Pipe Cast Iron 784 F.2d 1557 inference). Hammings, such See 285 F.3d Cir.1986) (holding "[ajllegations of simi- 9; at 1183-84 & n. see also EEOC v. Gen. Tel. discriminatory employment practices, lar Nw., Inc., 575, F.2d Co. 577 n. 3 entirely subjective ... such as use of [the] ("A Cir.1989) regression analysis is a com- personnel operated processes that to discrimi- designed mon statistical tool ... to isolate the nate, satisfy commonality typi- would particular [e.g.,] influence of one factor — cality requirements 23(a)”)(quoting of Rule dependent [e.g.,] salary.” sex—on a variable — Univ., Carpenter Stephen v. F. Austin State (citation omitted)). Smith, (5th Cir.1983)); Segar v. (D.C.Cir.1984) (explain- 738 F.2d 7.Specifically, compared, Dr. Bendick or ing "subjective criteria well serve as “benchmarked,” twenty Wal-Mart seeming legitimacy a veil which behind general by other similar merchandise retailers illegal operating”). discrimination is comparing provided by workforce data companies Employment Equal Oppor- to the region approximately 5. Each contains 80 to I, ("EEOC”). tunity Commission Dukes 85 stores. analyzed F.R.D. at 164. Dr. Bendick the data to determine the extent to which women in terms, Regression analyses, general pro sought promotion, the relevant market so that independent vide estimates of effect of roughly an inference could be made that single dependent variables on a variable. See percentage same of women would have Inc., Hemmings Tidyman’s, sought promotion given at Wal-Mart if (9th Cir.2002). purpose 1183-84 & n. 9 The opportunity. See id. As Dr. Bendick ex- methodology of this is to estimate the extent that, plained, benchmarking logic “The if (in particular independent which variable case, comparable to retail chains Wal-Mart are gender) depen this has influenced the rate, successfully employing women at some compensation pro dent variables of available, id.; presumably then women are inter- motion. See see also Rudebusch v. ested, (9th Cir.2002). qualified Hughes, comparable posi- to hold 511-12 long analyses enough As as the include rele- tions at Wal-Mart at similar rate.” See id. Wal-Mart, analysis its was conduct ing to Drogin’s Dr. find challenges However, contrary to store-by-store. his to conduct ed faults his decision ings and level, analysis, rather than characterization of its regional Wal-Mart’s on the research However, was not conducted at the indi store-by-store. its research analyze the data Haworth, workforce sta Dr. test of whether store level. Joan proper vidual (re macro at the conduct a expert, be viewed did not tistics should Wal-Mart’s sub-store) (store level store-by-store analysis; or micro instead she re gional) similarity of the on the depends largely at the level com viewed data sub-store *13 interchange and the employment practices analyze pay dif departments to paring facilities. See at the various employees hourly of between male and female ferential Dept. Corr. Moreover, v. New York State job Kirkland our on this employees.8 of Cir.1975) (2d Servs., to determine whether the district appeal is analysis de that the focus (recognizing that, finding its discretion court abused employ defendant’s on nature of pends presented, all the evidence there on based & 2 Barbara Lindemann practices); ment questions of fact sufficient existed common Grossman, Employment Discrimina Paul Arm justify class certification. See to ed.1996). (3d 1598, 1723 tion Law 867; Speech at Free Co strong, 275 F.3d alition, job Our is not to Here, that a store- Drogin explained Dr. probativeness of re-examine the relative (1) capture: not analysis would by-store ourselves. commonality evidence district, compa- and regional, the effect of find, Thus, to on an even if we were based over uniform ny-wide control Wal-Mart’s record, review of the independent (2) procedures; compensation policies evidence was more statistical Wal-Mart’s uniform of Wal-Mart’s the dissemination Plaintiffs’—which we do than persuasive procedures re- policies and compensation not, alone would not any event—this movement of frequent sulting from the district court allow us to find (3) strong managers; or Wal-Mart’s store Drogin’s Dr. testimo relied on improperly Drogin Dr. culture. Because corporate commonality component a valid its ny as for con- explanation provided a reasonable erred in that the district court analysis or level, regional at the ducting his research that the commonali its ultimate conclusion abuse its discre- court did not the district satisfied. ty prerequisite was Drogin’s analysis Dr. tion when it credited analysis supported that his and concluded reasonably district court Because the cor- Plaintiffs’ contention Wal-Mart’s Drogin’s regional anal- that Dr. concluded “pat- policies led to porate structure and based on well-es- ysis probative was of discrimination. practice” tern or principles, because scientific tablished le- proper little or no provided that the also contends Wal-Mart Wal-Mart it,9 challenge to and because or factual by finding gal not Wal- court erred district was within its discretion the district court probative more evidence Mart’s statistical because, that Dr. Haworth’s evi- when it found accord- than Plaintiffs’ evidence example, although Wal-Mart maintains separate ran 9. For that Dr. Haworth 8. This means (1) spe- analyses requiring each of the regression for: court erred not that the district store, (2) gro- cialty departments in the each test” to deter- Drogin perform a "Chow Dr. store, (3) the cery department in the aggre- properly whether data could mine remaining departments. She did not store’s sug- single case gated, not found a we have pay regression analyses to examine differ- run requiring such a test. gesting or use of salaried em- male and female ential between ployees. discrimination, failing being subjected dence—which was stricken for satisfy the standards of Federal Rules acts. The district various individual sexist 702 and 70310—did not under- Evidence court credited this evidence. Drogin’s Dr. evidence

mine contradict Wal-Mart contends the district (as insisted), district court the 120 declarations court erred because did not abuse its discretion when it relied sufficiently represent a class of 1.5 cannot Drogin’s interpretation on Dr. use and However, authority million. we find no component as a valid of its statistical data requiring suggesting plain- or even that a commonality analysis. statistically significant tiff class submit number of declarations for such evidence (4) Anecdotal Evidence Further, any to have value. the district and anecdotal Circumstantial that this anecdotal evi- court did not state commonly evidence of discrimination is provided proof dence sufficient to establish “pattern practice” in Title used VII itself, commonality by but rather noted proof by bring cases to bolster statistical *14 provides support that such evidence for ing convincingly “the cold numbers to life.” commonality Plaintiffs’ contention that is States, v. Int’l Bhd. Teamsters United of I, present. Dukes 222 F.R.D. at 166 See 324, 339, 431 U.S. 97 S.Ct. (“This evidence, anecdotal in combination Rudebusch, (1977); see L.Ed.2d 396 also previously with the other evidence dis- at 517. that 313 F.3d Wal-Mart contends cussed, supports further an inference that by concluding the district court erred that and policies procedures have [Wal-Mart’s] evidence, presented the anecdotal discriminating effect Plain- the declarations, Plaintiffs in the form of 120 manner.”). in tiffs a common Because the supported finding commonality.11 a declarations raise inference of common maintains that the declarations Wal-Mart discriminatory experiences and are consis- depict “widely divergent” a handful of evidence, tent with Plaintiffs’ statistical the probative events that cannot be deemed not representative pay of discrimination in or district did abuse its discretion management-track promotions. when it credited Plaintiffs’ anecdotal evi- dence. declarations, potential

In their the being paid than members testified less Subjective Decision-Making b. men, similarly being situated denied or above, As discussed the district delayed in receiving promotions a dis- suggest court found substantial evidence proportionate compared manner when with men, ing pay promotion policies common and similarly working situated an at- a mosphere strong corporate among many with culture Wal-Mart’s stores. See analysis, yield any meaningful In addition to her sub-store Dr. Wal-Mart results. 10. survey manag- appealed Accordingly, a has not this issue. Haworth conducted of store this reviewing properly survey After the and evidence is not before us. See Kohler ers. its meth- Tech., odology, v. Inter-Tel the 1179 n. 8 district court concluded that (9th Cir.2001) (recognizing appellant manager survey that store was biased both "on its by failing waived a way claim to raise it in her face” and in that it was conducted. briefs). II, (noting at Dukes F.R.D. 196-97 that survey's 'product "are not results methods,’ principles reliable and there- 11. Plaintiffs submitted declarations from each type are not the of evidence representatives, fore that would of the class as well as 114 ” 'reasonably upon by experts’ (quot- putative relied declarations from class members 702, 703)). I, ing country. Fed.R.Evid. Dr. Haworth’s around the See Dukes 222 F.R.D. disaggregated analysis pools created at too small produced Plaintiffs substantial evidence I, 149. The court 222 F.R.D. at Dukes company centralized culture of Wal-Mart’s decision to reasoned Wal-Mart’s also I, 222 F.R.D. at policies, see Dukes subjectivity- to utilize managers its permit 151-54, providing a nexus between thus offers addi policies those interpreting decision-making and the subjective commonality finding. for a support tional statistical evidence demon- considerable v. Relying Sperling on See id. Hoff discriminatory pay strating pattern a Inc., Roche, F.Supp. mann-La see promotions employees, for female (D.N.J.1996), the lat challenges Wal-Mart 154-65; v. see also Reid Lockheed id. conclusion, managers’ contending that ter Co., Aeronautics 205 F.R.D. Martin authority support does not discretionary (N.D.Ga.2001) (recognizing that 670-72 commonality because finding “[decen subjective decision-making give rise tralized, discretionary decisionmaking is an inference of discrimination where discriminatory.” inherently not be- provide there is evidence to nexus It sub is well-established subjective decision-making tween “ready mecha jective decision-making is discrimination). Therefore, for the rea- that courts for discrimination” and nism above, we find that the district sons stated carefully. Sengupta it should scrutinize not abuse its discretion when it court did Co., Morrison-Knudsen subjective decision- held Wal-Mart’s Cir.1986). correct raises an inference of dis- making policy decision-making by discretionary crimination, provides support itself *15 burden of to meet Plaintiffs’ is insufficient commonality contention that ex- Plaintiffs’ this, recognized The district court proof. among class members. possible ists managerial that discretion is but noting c. Conclusion supported factors that

one of several I, 222 commonality. See Dukes finding of evidence, expert factual Plaintiffs’ (“And presence while the F.R.D. at 148-50 evidence, and anecdotal opinions, statistical alone, subjectivity, does not of excessive fe that Wal-Mart’s evidence demonstrate question of necessarily create common subjected nationwide were employees male fact, where, here, subjectivity is as such (not corporate policies set single to corporate policy and part of a consistent independent discrimi merely a number by giving evidence rise to supported other acts) to un natory may have worked discrimination, courts have an inference of against them viola lawfully discriminate commonality to find that is not hesitated Title VII. Evidence of Wal-Mart’s tion of satisfied.”). incorrect, howev making policies provide subjective decision decentralized, er, subjective decision- practice of evidence of a common further to an inference making cannot contribute have Many other courts discrimination. Indeed, courts from discrimination. on sim the same conclusion based reached “[allega Caridad, country See, have found around the 191 F.3d e.g., ilar evidence. discriminatory employment by similar In grounds tions of on other at overruled Staton, entirely IPO, 39-42; sub practices, such as use at re Cox, 316; operate 955; to at jective personnel processes Shipes, at 1557; discriminate, satisfy the F.2d at 1276. Segar, to] F.2d at [sufficient requirements conclude that the district commonality typicality Accordingly, we 23(a).” 316; in hold at its discretion Shipes, 987 F.2d court did not abuse of Rule to “commonality” prerequisite ing 4 and cases cited that the supra see also note certification was satisfied. class therein. Thus, must consider whether we Typicality injury allegedly suffered the named matter, an initial Plaintiffs As and the rest of the class resulted plaintiffs has a chal contend that Wal-Mart waived allegedly discriminatory from the same typicality to the district court’s find lenge practice. agree See id. with the dis We objections by failing specific to offer to ing though trict court that it did. Even indi typicality finding. How the district court’s in different stores with employees vidual refers, ever, because Wal-Mart somewhat may have dif managers received different obliquely, to the factor its typicality pay ferent levels of or have been typicality and because opening brief promotion promoted denied at different commonality are similar and tend to rates, they al because the discrimination Falcon, at 157 n.

merge, see 457 U.S. legedly through suffered occurred an al 102 S.Ct. we conclude that Wal-Mart excessively leged practice-—e.g., common challenge opportunity did not waive its subjective decision-making corporate in a findings regard to the district court’s with uniformity gender culture of stereo Thus, did typicality.12 although Wal-Mart sufficiently typical claims are typing—their specific challenge, not raise a it neverthe 23(a)(3). satisfy Rule general objection raised a to the dis less trict court’s conclusion that Plaintiffs’ evi Representatives b. Plaintiffs’ typicality requirement. dence satisfies the Sufficiently Typical Are below, satisfy typicali As discussed the Class ty prerequisite, Plaintiffs must demon Typicality requires strate that their claims and their class named be members of the class sufficiently typical of representatives are Falcon, they represent. See U.S. the class. dispute 2364. There is no S.Ct. representatives “typical” a. Claims Are that the class Plaintiffs’ members, Sufficiently Typical hourly of the al because *16 representatives most all of the class hold 23(a)(3) requires that “the Rule Instead, hourly positions. Wal-Mart con representative claims or defenses of the representatives tends that the class are parties typical of the claims or defenses be typical managers not of all female in-store 23(a)(3). of the class.” Fed.R.Civ.P. We only representa because one of six class stated in Hanlon that the rule’s “[u]nder management position, tive holds a salaried standards, permissive representative posi and she holds a somewhat low-level ‘typical’ they reasonably claims are are if tion. coextensive with those of absent class members; However, substantially employees need not be all female because discrimination, alleged identical.” 150 F.3d at 1020. Some de the same faced gree individuality of lack of a expected representative is be all class for each cases, specificity management not category but does neces does not undermine Staton, sarily typicality. goal. defeat See 327 Plaintiffs’ certification See Hartman (D.C.Cir. 1459, at Duffey, F.3d 957. v. 19 F.3d Although “commonality typicality legal 12. facts and issues common to class mem- bers, 23(a) requirements merge,” typicality of Rule tend to while focuses on the relation- Falcon, 13, ship see 457 U.S. at 157 n. 102 S.Ct. of facts and issues between the class and purpose. representatives. Newberg each factor serves discrete its See 1 on Class Actions, § Commonality relationship at examines the 3:13 by qualified competent counsel. 1994) an can ed employee (recognizing job Hanlon, 1020; in “different at also discrimination 150 F.3d see challenge See practices primary where the categories Molski, at 955. 318 F.3d cate- in the different discriminate used to court, Before the district Wal- itWhile themselves similar. gories are satisfy that Plaintiffs cannot argued Mart class divided to have the prudent a conflict of interest this factor because of by a named represented into sub-classes are managers female in-store who between differing job each of the plaintiff from plaintiff class members and decision- both necessary to the not be categories, it would Relying on making agents of Wal-Mart. so.”); certification to do validity of the class Staton, recognized that the district court Bank, Nat’l Paxton Union Cir.1982) deny need not certification of (holding “[tjypicali- courts the varied simply because of class because the class ty employment is not defeated issue, at or the opportunities promotional non-supervi supervisory includes both plaintiffs differing qualifications I, Dukes 222 F.R.D. sory employees. See members”). class Staton, 168; at 958- at see also agree. Finally, because Wal- 59. We addition, manag- range In because challenge not the district court’s Mart does is limited to those proposed ers in the stores, representa that Plaintiffs’ class finding it not a working Wal-Mart’s class, plaintiff adequate, a named we need very broad tives and counsel are salaried, lower-level, in-store occupying analyze not this factor. satisfy

management position is sufficient typicality requirement. “permissive” 5. Conclusion Staton, (recognizing that 327 F.3d at 957 it, before which Based on the evidence “[ujnder standards,” permissive rule’s examined, see rigorously the district court to offer a class required are not Falcon, 2364; 457 U.S. at S.Ct. discrimina- type for each representative Co., 402 F.3d v. Ford Motor Chamberlan Hanlon, (quoting alleged tion claim (9th Cir.2005), conclude that we 1020)). not abuse its discre- the district court did Plaintiffs’ Plaintiffs’ claims and Because 23(a) it found that the Rule tion when sufficiently typical representatives were satisfied. elements class, its court acted within the district sat- it found that Plaintiffs discretion when 23(b) B. Rule typicality prerequisite. isfied the earlier, Plaintiffs As mentioned *17 under Rule certify the class moved 4, Adequate Representation 23(b)(2), that requires which 23(a)(4) certification permits Rule class opposing “the party show that only representative if “the a class action grounds to act on has acted or refused protect fairly adequately parties will class, thereby to the generally applicable of the class.” Fed.R.Civ.P. the interests injunctive relief making appropriate final (1) 23(a)(4). that the requires: This factor a whole.” respect to the class as ... with not Plaintiffs do proposed representative 23(b)(2).13 The district Fed.R.Civ.P. proposed conflicts of interest with have I, 222 (2) See Dukes agreed with Plaintiffs. class, represent- Plaintiffs are Zinser, at 1186. only satisfy one 253 F.3d purported need 13. The 23(b)’s prongs See to be sustainable. of Rule (“Resolution Robinson, quoted F.R.D. at 170 of this issue is 267 F.3d with Gleich, Molski, governed by Molski v. 318 F.3d approval in 318 F.3d at 950 n. 15. (b)(2) (9th Cir.2003), which holds that 1. Wal-Mart’s “Unrebutted” Evidence class actions can include claims for mone- long damages such tary damages so as Does Not Undermine Plaintiffs’ ‘predominant’ sought, Injunctive not the relief but Claim That and Declara- ‘secondary primary instead are to the tory Relief Predominate injunctive declaratory re- claim for or first asserts ”). lief.’ Wal-Mart contends the dis- district court to even “failed evaluate” merely “paid lip trict court service” to 23(b)’s requirement Rule the chal 23(b)(2) in certifying Rule and erred lenged generally applicable conduct be 23(b)(2) class under Rule because claims the class. Wal-Mart maintains that its monetary predominate for relief over “unrebutted” statistics demonstrate that injunctive declaratory claims for relief. pervasive there is no evidence of discrimi 23(b)(2) appropriate Rule is not justify injunctive nation that would relief all classes and “does not extend to that, therefore, “challenged con appropriate cases in which the final relief duct” does not affect all members. How exclusively predominantly relates or ever, per Wal-Mart’s contention is not 23(b)(2), money damages.” Fed.R.Civ.P. above, explained suasive. As Wal-Mart’s amend., Adv. Comm. Notes to 1966 evidence was rebutted Plaintiffs to the 69, 102; Zinser, F.R.D. see also extent that Plaintiffs’ evidence and theo (“Class at 1195 certification under Rule pre-merits ries remain at this viable anal 23(b)(2) only appropriate pri is where the Further, ysis stage. the issue before us mary sought declaratory injunc- relief primary is whether Plaintiffs’ goal tive.”). adopt In Molski we refused to a bringing injunctive this action is to obtain bright-line distinguishing rule between in relief; not whether Plaintiffs will ulti damages cidental and nonincidental for the Molski, mately prevail. See 318 F.3d at purposes determining predominance be Consequently, Wal-Mart cannot de nullify such a rule “would cause the discre support argument. rive from this tion through vested the district courts Molski, Rule 23.” 318 F.3d at 950. In Damages 2. The Size Plaintiffs’ Re- stead, specific we examine the facts and quest Does Not Plain- Undermine case, focusing pre circumstances of each Injunctive tiffs’ Claim That and De- dominantly plaintiffs’ on the intent claratory Relief Predominate id.; bringing the suit. See Kanter v. War Wal-Mart contends that mone Co., (9th ner-Lambert tary necessarily predominate claims be Cir.2001); Linney v. Cellular Alaska cause this case involves claims that P’ship, 151 1240 n. Cir. However, amount to billions of dollars. 1998). minimum, however, At a we must a large principally such amount is a func “(1) satisfy ourselves that: even in the size, tion of predomi Wal-Mart’s and the possible monetary recovery, absence of a *18 nance test on the primary goal turns plaintiffs bring reasonable would the suit litigation the possi theoretical or —not injunctive declaratory to obtain the or re damage ble size of the award. As the (2) sought; injunctive lief or de stated, district court claratory sought relief would be both rea sonably [F]ocusing on necessary appropriate potential were size of a punitive damage to succeed on the merits.” award would have the request pay weighs That a for back making it more diffi- effect perverse 23(b)(2) certification, Rule howev- egregious against the more certify a class cult to er, larger or the does not mean that certification under conduct the defendant’s hardly improper pay a result rule is whenever back is defendant. Such this did, purposes requested. principal the remedial If it then the squares with by the ad- category contemplated Title VIL of cases under visory being committee as certifiable I, 222 F.R.D. at 171. Because Wal- Dukes 23(b)(2) i.e., in the civil- Rule “actions that the size of the — has not shown Mart rights party charged field where a is with undermines Plaintiffs’ monetary request class,” discriminating unlawfully against a declaratory relief injunctive and claim that 23(b)(2), advisory R. Proc. com- Fed. Civ. ar- we find that Wal-Mart’s predominate, longer eligible be mittee’s notes—would no fails. gument (b)(2) the class for certification unless Backpay Request Does Not 3. A for pay agreed forego members the back In- Plaintiffs’ Claim That Undermine remedy Congress specifically made avail- Declaratory junctive Relief Pre- victims under Title able to discrimination dominate This result would not VII. non-sensical Plaintiffs’ re- asserts intent, it would only legislative thwart but against certifica- backpay weighs for quest the Hob- put also discrimination victims to it that claims for mon- proves tion because only for having son’s choice of to settle The district etary predominate. relief remedy proceed in order to as partial backpay “is recovera- court reasoned having action or the enor- bear remedy make-whole equitable, ble as an costs of an individual lawsuit in or- mous notwithstanding class actions employment “injunction to receive the make-whole der I, 222 monetary its nature.” Dukes pay” remedy authorized Title plus back contends that F.R.D. 170. Wal-Mart unlikely Congress ap- It is VII. erroneously deemed the district 23(b)(2) U.S.C. proved both Rule by failing to backpay “equitable” and erred put § discrimination vic- 1981a intended to backpay, “equita- whether recognize a choice. tims such not, monetary ble” or is still a form of relief. Plaintiffs’ re Accordingly, while pay weigh for back does quest court was cor

While the district 23(b)(2), the under Rule class certification labeling pay equitable back as an rect court did not abuse its discretion district VII, remedy under Title see available concluded, many like courts before when it 1981a(a) (referencing § 42 U.S.C. U.S.C. it, action was that this discrimination class 2000e-5(g)), any suggestion § that back 23(b)(2) Rule notwith certifiable under remedy pay’s equitable status as an some pay for back standing prayer Plaintiffs’ being a form of prevents how it from also See, Billington, e.g., Eubanks v. relief. purposes of Rule monetary relief (D.C.Cir.1997) (“[I]t is not 23(b)(2) certainly pay incorrect. Back is employment uncommon in discrimination “injunctive nature or of a corre not of an monetary nature,” ... to seek declaratory Fed. R. cases for the class sponding Civ. notes, pay, or front 28(b)(2), pay in the form of back advisory committee’s relief Proc. declaratory injunctive addition to request pay [in Plaintiffs’ for back and thus relief, Rule and still certified under under Rule weighs against certification 23(b)(2)]”). requires, Molski we 23(b)(2), As equitable its nature notwithstand that, in the absence of satisfied “even ing. *19 1188 1981a(a)(l). Therefore, § we find the pay] recovery, reasonable

possible [back bring the suit to obtain” court acted within its discretion plaintiffs would district discrimina- injunction against Wal-Mart’s it that Plaintiffs’ claims when concluded and that such employment practices tory damages predominate do not punitive for reasonably be both injunctive relief “would injunctive their claims for and declar- over plain- necessary appropriate [if] Molski, at atory relief. See 318 F.3d 947- Molski, merits.” ... on the tiffs succeed Robinson, 50; (recognizing 267 F.3d at 164 n. 15. 318 F.3d may certify un- that a district court class Damages Request A for Punitive 4. (b)(2) if it der finds its discretion that Plaintiffs’ Claim Does Not Undermine injunc- value of the positive weight Declaratory Injunctive Re- That sought predominant tive relief is even lief Predominate claimed). damages are though punitive Plaintiffs do not ask for While addition, In court’s order the district beyond damages in this case compensatory provision to allow Plaintiffs to contains discussed, they pay just do seek the back damages. opt-out punitive of claims for for punitive damages punish to (“Accord- I, 222 Dukes F.R.D. at 173 See allegedly disregard “reckless of the its ingly, opportunity opt-out notice and an to employees equal to rights of its women plaintiff to the class with provided shall be opportunity, and to deter sim employment punitive claim for respect Plaintiffs’ and other ilar misconduct Wal-Mart there is damages.”). Although no absolute I, retailers in the future.” Dukes large 23(b)(2) class, right opt-out in a rule 222 F.R.D. at 170. Wal-Mart contends monetary sought where is “even relief request punitive that Plaintiffs’ for dam available,” recog- made other courts have Rule ages “wholly inconsistent” with nized that district courts should consider 23(b)(2) view, however, certification. This rights. In possibility opt-out re and, if adopted by has not been this circuit Co., 408, 365 F.3d Monumental Ins. Life intent adopted, congressional would thwart (5th Cir.2004); Ingersoll v. Jefferson for the same reasons as discussed with Int’l, Inc., 894, Cir.1999); respect request to Plaintiffs’ for back Co., Brown, see also Ticor Title Ins. Specifically, it would non-sensi pay.14 be 1359, 114 S.Ct. 128 L.Ed.2d U.S. particularly egre prevent cal to victims of (1994) (suggesting provisions allow- gious simultaneously from discrimination damages ing plaintiffs opt-out claims proceeding a class action under Rule as appropriate where move 23(b)(2) specifically designed was —which certify a a claim bringing puni- for class actions— to facilitate discrimination damages). tive note that a district seeking damages provided We punitive opt-out pro- discretion to include an for under Title VII. See U.S.C. court’s cases, request injunctive to two Williams v. relief where re- Wal-Mart cites Owens-Illinois, Inc., 928-29 quested compensatory damages were not Zinser, (9th Cir.1982), 253 F.3d at compatible injunctive clearly with class re- proposition for the that this circuit will not Zinser, lief); (finding 253 F.3d at 1195 certify punitive a class action that involves request monitoring for medical claims However, damages. Williams and Zinser do pacemaker catego- manufacturer of cannot be Rather, support not Wal-Mart’s contention. injunctive per primarily equitable or rized as merely this held that it was not an recognized many have se because state courts deny abuse of discretion to class certification monitoring appropriate that medical relief is specific presented based facts in those on only damages indepen- as an element of after Williams, (holding cases. See 665 F.2d at 929 proof liability). dent damages requests incidental to were not

1189 See, monetary recovery, possible of a reason- e.g., In re well-established. vision is Co., 417 365 F.3d at Ins. plaintiffs standing Monumental lack to seek [who able Life courts have discretion (noting that district injunctive declaratory or would relief] opt-out rights and when order notice to to obtain the bring suit [nonetheless] th[is] 23(b)(2) Robinson, class); Rule certifying a injunctive declaratory sought.” or relief that notice (recognizing 267 F.3d at 165-67 Molski, (quoting at 950 n. 15 318 F.3d (b)(2) class can be afforded opt-out 164). Robinson, 267 F.3d at respect with to non-incidental members claims); F.3d at Jefferson, 195 not mean that the entire class damage This does 898-99. class members putative must fall. Those May Not be Certification

5. Class employees as of who were still Wal-Mart Proper Members as to Class Who (when 8, complaint 2001 Plaintiffs’ June Employees as of Not Were Wal-Mart filed) standing do have to seek the was Complaint Was the Date Plaintiffs’ injunctive declaratory requested relief Filed Lomax, at complaint, in the see that, final contention is be- Wal-Mart’s 1015, puta- and we are satisfied that these putative of the cause a substantial number reasonably bring tive class members would work for Wal- longer class members no practices they to an end to the put this suit thus, and, longer standing have no Mart — complain of “even in the absence of a injunctive declaratory or relief— to seek recovery.” are also possible monetary We cannot injunctive declaratory relief that, ultimately if satisfied these monetary relief possibly predominate over merits, injunction succeed on certifying class under purposes for this declaratory judgment preventing Wal- 23(b)(2). Rule in unlaw- continuing engage Mart from agree with to this We Wal-Mart gender-based employment ful discrimina- putative those class members who extent: reasonably necessary tion “would be both employees at longer were no Molski, F.3d at 950 appropriate.” filed do complaint the time Plaintiffs’ was 164). Robinson, 267 F.3d at (quoting n. 15 injunctive or standing pursue not have Moreover, in explained the reasons for v. Nev. declaratory relief. See Walsh II.B.1-II.B.4, we are confident Parts Res., Human 471 F.3d 1033 Dep’t of plain- these primary sought relief Cir.2006) (recognizing employ that former declaratory injunctive tiffs remains injunctive standing lack to seek relief ees request notwithstanding nature their they “would not stand to benefit because monetary sense “made whole” in a also be anti-dis injunction requiring from an under Title provided to the full extent criminatory policies [to cease] [their] under work”); Accordingly, class certification Am. Liber VII. place former Civil Lomax, 23(b)(2) appropriate Nev. v. at least as to ties Union Rule was (9th Cir.2006) (“When 1010, evaluat plaintiffs. these standing] elements ing [the whether court for thus remand to the district We look at the facts ‘as present, we must ” scope of a determination of the appropriate complaint was filed.’ exist at the time light of the above observation the class Wildlife, (quoting Lujan v. Defenders of it any presented to light and in evidence n. 504 U.S. S.Ct. members putative class regarding which (internal quotation marks L.Ed.2d 351 as of June employees were still Wal-Mart omitted))). circumstances, it these Under that, say “even the absence is difficult to *21 Way in a and rea responsible oversee this case In a

III. Class Action Can Proceed I, 222 Manageable manner.” Dukes F.R.D. at sonable and In that is Both matters consid “giv[ing] 173. After these Due Process Accordance With deliberation,” dis thought erable the agree that this is the parties The that, trict court concluded with one minor history. certified in The dis largest class size of the not exception,15 “the class would cognizant of this when it trict court was managing” undue obstacles to this present size, although concluded that the class action. Id. class unmanageable. not See Dukes large, was manageability To demonstrate the I, Indeed, the district F.R.D. at 173. action, of the class the district court out that, acknowledged court “while courts based, plan trial in on large part, lined a flexibly respond to possess wide discretion similarly how other courts have handled manageability to issues that arise complex large and class action suits.16 see, action, during a the course of class of amici17 Wal-Mart and number con 891, 906, Barrack, Blackie v. e.g., aspects tend that at least some of this trial (9th Cir.1975), must be n. this Court process rights, their due as plan violate not be of VII,18 confident such issues will 706(g)(2) of well as section Title the Act,19 defy ability Enabling Supreme its to Rules and the magnitude such as to exception related Plaintiffs' class members were victims of this 15. This one to which (and promotion deter- claim. The district court form of how much in discrimination unmanageable owed) mined that it would be to fash- pay back each is to determine a second remedy I, ion a for the subset of the class for "lump sum” owed Wal-Mart. Dukes objective applicant whom data did not exist. separate procedure 222 F.R.D. at 174-186. A I, agree We See Dukes F.R.D. lump would then be used to distribute these analysis with the district court's and resolu- sums to those class members entitled to share tion of this issue. stage in them—a which Wal-Mart would longer no have interest. Id. at 179 n. 49. plan by the 16. The trial described district I, stages. Stage court involved two In Plain- panel 17. The was favored with an extraordi- attempt prove would that Wal-Mart tiffs nary variety of amicus briefs that were both engaged pattern practice in a of discrimi- thoughtful helpful panel to the in its company-wide nation the via class its deliberations. employment policies. If Plaintiffs were suc- regard, they attempt in this would also cessful says 18. This section the "[n]o order of prove punitive damages, an entitlement to require payment [a court shall ... the require proof which would Wal-Mart's person] any pay, back if such ... individual pattern practice of discrimination "was employment was or refused advancement or maliciously recklessly undertaken or in the discharged any suspended was or reason perceived face of a that defendant's ac- risk other than [unlawful] discrimination” I, tions would violate federal law.” Dukes that, a claim in which an individual "[o]n prevailed 222 F.R.D. at 174. If Plaintiffs 2000e-2(m) proves a violation under section I, II, Stage Stage would case move to respondent of this title and demonstrates remedy phase. Stage The first task in II respondent would have taken the injunctive re- would be to fashion class-wide impermissi- same action the absence lief. The second task would be to calculate factor, motivating ... ble court shall not pay and distribute the back award. As to VII, 706(g)(2), § damages.” Title award codi- claim, promotional Plaintiffs' a formula 2000e-5(g)(2). § at 42 U.S.C. "lump would be used to calculate the sum” in fied (a pay back that Wal-Mart owes to the class says 19. This statute that the Federal Rules of procedure employed similar to that in Domin- Procedure, Co., including regarding go England Civil Rule 23 v. New Fish actions, (9th Cir.1984)). abridge, enlarge "shall not 1444-45 As to Plaintiffs' claim, modify any right. equal pay would examine substantive All laws in employment Wal-Mart’s records to determine conflict with such rules shall be of no further randomly selected ... of the 137 sitions v. United in Teamsters decision Court’s claimants.... S.Ct. States, 431 U.S. (1977).

L.Ed.2d 396 ... the claim[s] then reviewed Schreiber of the 6 claims recommended that [and] no stage, express we pre-merits At this found not valid.... sample 137 in the objections regarding Wal-Mart’s opinion *22 plan trial court’s tentative district the to the then Schreiber recommended (or itself), simply note but plan trial to be awarded to the damages amount of range possibil- of that, there are a because .... [remaining] claimants the may not include may or ities—which that 6 of recommendation Based on his action— course of proposed court’s district sample in the random the 137 claims pro- action to this class allow that would (4.37%) invalid, rejected as he recom- be manageable that is both in a manner ceed five-per-cent of a application the mended man- process, with due and in accordance remaining the invalidity rate to class present no bar concerns ageability He the claims.... recommended here. certification by determined award to the class be of valid remain- Fer the number multiplying in v. Estate example, For Hilao of average award Marcos, by ... the ing 782-87 claims dinand By ... the for the claims.... Cir.1996), employed court recommended the district ..., the recommended awards adding to determine the following procedure the at a recommendation damages due Schreiber arrived compensatory of amount damage compensatory action:20 for a total large in a class award.... 10,059 The all, claims received. In were claims ruled 518 of these damages compensatory

district A trial on jury 9,541 invalid, leaving facially testi- to be held.... Dannemiller was [then] these, a of 137 claims From list random claims. of the fied that the selection by computer. randomly selected was of inferential sample met the standards randomly selected of statistics, This number efforts to that the successful of the chosen the basis testimony claims was on from the and obtain locate Dannemiller, an ex- testimony sample of James “were of in the claimants random statistics, that the who testified pert profession, on in his highest standards” the sample of 137 random conformed examination followed procedures that the statistics, percent “a 95 sta- claims would achieve of inferential to the standards per- the same probability that random- injuries tistical of the and that the among to be valid centage determined representative were sample claimants applicable Testimony claims would from the examined the class as a whole. ... filed.” totality the of claims claimants and random-sample the 137 introduced. witnesses was Sol their appointed The district court then (and recommen- as to his Schreiber testified master special as a Schreiber dations, supplied to report his was expert under Rule 706 court-appointed Evidence). jury instructed jury. The the was of the Federal Rules reject Schreib- accept, modify it could taking depo- supervised the Schreiber torture, allegedly victims of were dants who rules have taken or effect after such force execution, "disappearance” at summary § 28 U.S.C. 2072. effect.” Marcos, Philip- hands of Ferdinand E. 10,000+ plaintiff action Hilao was a president. pines’ former descen- by Philippine and their filed nationals conception and that it could technical with a fixed content er’s recommendations time, independently, place on basis the evi- unrelated to and circum claimants, of the random-sample dence stances.” and Restaurant Cafeteria Union, judgment reach its own as to the actual McElroy, Workers Local 473 damages 886, 895, of those claimants and of 81 S.Ct. U.S. (1961).... aggregate damages by suffered the class L.Ed.2d 1230 ...

aas whole. The interest of [defendant] jury days The deliberated for five before is at affected best interest not reaching Contrary a verdict. to the any paying damages invalid recommendations, jury master’s claims.... The statistical method used against only found two of the claim- obviously presents the district court sample. ants the random As to the greater somewhat risk of error com- *23 claims, sample jury generally the adjudication an parison to adversarial of recommendations, adopted the master’s claim, each since the former method re- it although did not follow his recommen- (albeit quires probabilistic prediction in one) dations 46 instances. As to the claims extremely many accurate of how members, remaining of the the of the total claims are invalid.... Hi- jury adopted the awards recommended in lao’s interest the use of the statistical by the master. The district court subse- method, hand, enormous, on the other is quently judgment entered of the since adversarial resolution of each class in sample 137 claimants the in the pose member’s claim would insurmount- by jury, amounts awarded the and for practical “ancillary” able The hurdles. the remaining plaintiffs ... in the judiciary procedure interest of the in the by jury, amounts awarded the to be substantial, obviously 9,541 also since pro divided rata. individual adversarial determinations of validity claim clog would the docket of Hilao, (footnotes 782-84 omit- years. the district court for the Under ted). balancing test set forth in Mathews [v. appeal, On present- the Hilao court was Eldridge, 424 U.S. 96 S.Ct. objections ed with some of the same to its (1976),] L.Ed.2d 18 and [Connecticut v.] trial plan presents as Wal-Mart here.21 Doehr[, 501 U.S. 111 S.Ct. discussion, however, lengthy After a the (1991)], procedure by L.Ed.2d the used rejected Hilao court these challenges the district court did not violate due approved plan, addressing of the trial process. process due issue as follows: Hilao, (footnote 103 F.3d at 786-87 omit- methodology While the district court’s ted). unorthodox, determining valid claims is justified by extraordinarily why it can be Because we see no reason a similar “ procedure unusual nature this pro- case. ‘Due to that used in Hilao could not cess,’ rules, legal case,22 unlike some employed is not be in this we conclude cases,” example, randomly "sample For the defendant in Hilao ar- selected thus gued plan rights revealing approximate percentage that the trial "violated its of class process questions ap- due unequal pay because ‘individual non-pro- members whose claims, i.e., ply to each subset of whether the something gen- due motion was other than justified, degree injury, action was der discrimination. The "invalid claim rate” ” cause, would, proximate etc.’ 103 F.3d at 785. process revealed this as it did in Hilao, very come close to the invalid claim procedure 22. We expect among note that this would allow rate one would to find present Wal-Mart individual defenses in entire class. and inter- proof qualification for whom one method at least there exists that, Finally, al- must reiterate class action exists. we large this est managing pro- nonetheless action imperfect, only to class findings beit somewhat our relate involved of all rights process the due analyze tects questions; we neither procedural man- find no Accordingly, we parties.23 allega- of Plaintiffs’ nor reach the merits this other- to find reason ageability-based gender discrimination. tions of cer- to class class unsuited wise-certifiable AFFIRMED. tification. KLEINFELD, Judge, Circuit CONCLUSION dissenting: above, we hold set forth

For the reasons its majority’s acted within The I dissent. respectfully the district it concluding discretion problems broad not solve the opinion new does case as a to handle this would better action certifi- previous opinion. Class its federal clogging the instead of class action 23, likely deprives violates Rule cation still suits innumerable individual with courts who have been discriminated many women The repeatedly. the same issues litigating to, money they are entitled against of the did not abuse its discretion district court of its constitution- deprives *24 of Rule requirements finding pleading the of jury process to trial and due rights al Plaintiffs satisfied, as to those at least law. on employees who were still brought in may actions not be Class point to failed to 2001. Wal-Mart June they satisfy, among unless federal court that problems management any specific Rule the criteria of Federal things, other impracticable action render would 23(a): of Civil Procedure case, has the the district court in this and (1) decertify joinder the class that modify or so numerous to the class is discretion (2) Al- unmanageable. impracticable, it become should of all members is large, class action is the size of this though or fact com- questions are of law there unman- a case (3) does not render mere size class, or de- the claims mon to the ageable. parties are representative fenses of the of the the claims or defenses typical of cross-appeal, because deny Plaintiffs We (4) class, parties representative and the its discre- did not abuse the district court the adequately protect fairly and will pro- for pay that back it found tion when class.1 interests of the Plaintiffs may limited to those motions be 706(g)(2) VII and comment only § of Title violate suggest this is the We do not that, victims of ing effective relief for the way "[i]f class action in which this conceivable Indeed, necessarily the risk that district entails lawfully progress. the discrimination could the might whether a more also benefit from may want to consider few nonvictims court relief, procedure proven to that discri employer, case” similar as a limited "test then the risk”); Litig. minator, Consol. Proceed- employed in In re TMI see also must bear (M.D.Pa. 316-19; ings, F.Supp. 837 & n. 5 v. Mo. Catlett Shipes, 987 F.2d 1996), evaluating parties Comm'n, the aid the in would Transp. Highway & strength respective 1987). claims. of their point to the Hi- Cir. We 1266-67 course, And, solely cir proposed by the because this option procedure above of lao indeed, viable; approved of already remain considered also cuit has district have to of circuits we are bound appears procedure that a number in a decision it plans in discrimina- approved similar trial follow. See, e.g., Segar, F.2d at 1291 tion cases. 23(a). 1. Fed.R.Civ.P. plan did not (explaining why a similar trial (1) called, sociologist These criteria are for short: terminations. Plaintiffs’ claims (2) (3) numerosity; commonality; typicali- merely subjective system that a is “vulner- (4) ty; adequacy representation.2 able” to sex discrimination. But the Su- analogous In the somewhat ease Gener- in preme recognized Court Watson v. Fort Telephone al Co. the Southwest v. Fal- that, although dispa- Worth Bank & Trust con,3 Supreme Court held that class impact analysis may rate usable sub- inappropriate, certification had been where cases, jective criteria “leaving promotion promot- Mexican-American who was not decisions to the unchecked discretion of ed had been allowed to sue on of all behalf lower supervisors level should itself raise applicants employ- Mexican-American discriminatory no inference of conduct”7 ment. The Court held that the Rule 23 many jobs “[i]t because is self-evident that requirements fully apply to Title VII class “ require ... personal qualities that have actions, rejected ‘tacit assump- never been considered to amenable stan- underlying [rejected] tion’ across-the- testing.”8 “Vulnerability” dardized to sex surely board rule that ‘all will be well for discrimination is not sex discrimination. plaintiff will and manna fall win will on ”4 all members of the class.’ only Plaintiffs’ evidence of sex discrimi- case, only In this one of the four nation is that around of Wal-Mart em- % requirements Rule 23 is satisfied is female, ployees only ]é but about of its “numerosity.” seeking represent In as managers are female. But as the Su- large a imaginable, plaintiffs class as have Watson, preme recognized Court “[i]t is destroyed commonality, their typicality, entirely unrealistic to assume that unlaw- adequacy representation, as ful discrimination is the sole peo- cause of many attempted other class certifications ple failing gravitate jobs employ- that have over-reached.5 *25 in ers accord with the laws of chance.”9 “commonality” This class lacks because everybody Not wants to be a Wal-Mart questions “common to the class”6 are manager. Those women who want to be only insubstantial. The question common managers may find better opportunities plaintiffs identify any precision with elsewhere. Plaintiffs’ pur- statistics do not promotion whether Wal-Mart’s criteria are port to compare women who want to be “excessively subjective.” This is not a managers at commonality Wal-Mart with men any with clear who relationship to pay, sex discrimination in promotions Wal-Mart, or to managers just want be at Prods., Windsor, locations, 2. Amchem Inc. v. geographic 521 U.S. facilities and courts 591, 613, 2231, frequently classes.”) 117 S.Ct. 138 certify L.Ed.2d 689 have declined to (1997); Co., 938, (citations omitted); Boeing Staton v. 327 F.3d see also Bacon v. Honda (9th Cir.2003). Inc., (6th Cir.2004); 953 Mfg., Am. 370 F.3d 565 Co., Stastny v. So. Bell Tel. & Tel. 628 F.2d 147, 2364, 3. 457 U.S. (4th 102 S.Ct. 72 L.Ed.2d Cir.1980). 267 (1982). 740 23(a)(2). 6. Fed.R.Civ.P. 161, (quoting 4. Id. at 102 S.Ct. 2364 Johnson Inc., Georgia Highway 990, v. Express, 977, 2777, 7. 487 U.S. 108 S.Ct. 1122, (5th Cir.1969) (Godbold, J., (1988). spe- L.Ed.2d 827 cially concurring)). 8. Id. at 108 S.Ct. 2777. Co., Cooper 5. v. S. Cir.2004) ("Where, here, Trust, as class certification Watson Fort Worth Bank & 977, 992, sought by employees working widely was U.S. 108 S.Ct. 101 L.Ed.2d (1988). job types, spread throughout diverse different Sought management Kwapnoski they Chris employees, whether male female qualified men. given to less positions jobs or not. management want made sexist remarks. Manager “the because “typicality” lacks This class Sought management Gunter Deborah representative defenses or claims experienced to less positions given of the claims “typical not parties” pro- she trained were males. Males must Plaintiffs of the class.”10 defenses got her. Never instead of moted of persons a class “the existence of show Fired after position. management injury” as the same who have suffered discrimination complaining about named seven There are themselves.11 hours. a reduction her are, gist they Here with plaintiffs.12 management Sought Karen Williamson complaint: make in the claims even promoted, position but was never American female Dukes African Betty got pro- Males though “qualified.” manager, then demoted promoted not ed. motions that were com- in retaliation discrimination American woman. Arana African Edith for several apply Did not plaints. nev- management position but Sought American fe- slots filled African told her manager promoted. er Store males, His- males, American African af- Fired he “did not want women.” male, and female, Filipino panic ” ‘stealing time’ “falsely ter accused dis- she was male because Caucasian discrimination for her retaliation by discrimination couraged complaints. women. harassed, Sexually re- Surgeson

Patricia if only these seven “Typicality” exists a better title got a male placed by who claims “typical of the claims are women’s management money, denied and more They are not of the or defenses class.”13 quit. other, opportunities, to each let respect typical with even of “[a]ll the class respect with manag- alone Quickly promoted Page Cleo any at domes- employed manager er, department women denied but since December any time “a man’s tic retail store told it’s being after position subject- have been or 1998 who got female” A “Caucasian world.” man- challenged pay and to Wal-Mart’s position. Page ed manager department *26 and policies promotions agement man- track department a different got later the seven named Some practices.” a But “Caucasian ager position. putative of the “Latina,” and members male,” plaintiffs a “Caucasian a and Wal-Mart, quit, have some for work management posi- got other female” claim sex Some have been fired. got paid less sought she some tions she and motive discrimination, claim mixed some with less se- male” than “Caucasian discrimination, appear some and race sex niority. Prods., and the 23(a)(3); Kwapnoski, Cleo. The district Inc. Amchem 10. Fed.R.Civ.P. 2231, Windsor, plaintiffs. say six named majority 117 S.Ct. there are 521 U.S. v. (1997). justice L.Ed.2d 689 individual 138 not concerned with One less, more or woman may care about one not Falcon, 457 U.S. v. Tel. Co. the Sw. 11. Gen. of S.Ct. and do. system we in our must but 147, 157, 72 L.Ed.2d (1982). Prods., 23(a)(3); Inc. Amchem 13. Fed.R.Civ.P. 591, 613, Windsor, 117 S.Ct. U.S. up add to seven: plaintiffs' names 12. The (1997). Williamson, Gunter, Arana, Dukes, L.Ed.2d 689 Surgeson, only other, claim to race discrimination. Some as will the interests of other mem- retaliation, appear claim and some to claim bers of the class. Women who still work but not discrimination. promotions unfairness Some Wal-Mart and who want case, plead prima injunc- of the seven facie some have an interest in the terms of an injunction declaratory do not. tion. But an and judgment cannot benefit women who have likely Nor are the defenses to the claims quit or been fired and do not want seven, common even as to be these let them, compensatory return. For pu- and employees. alone all female Some are damages nitive are what matter. Those likely to be vulnerable to defenses such as who managers, many and Wal-Marts misconduct, not. example, some are For have managers, female store have inter- claim might Wal-Mart’s defense Arana’s in preserving managerial ests their own time, really be that she did that steal flexibility injunction may under whatever manager Wal-Mart fired her because the issue, while those who are not and do not faith good concluded after reasonable want to managers may not share this investigation that she stole time. For defenses, strong concern. Those who face Dukes, potential the obvious defense is if they such as did indeed steal time or they promote manager did her to and money, have a considerable interest in a best, hoped for the but she did not do well. fast, settlement, mass while those who For Kwapnoski, defense be no impressive performance have records have all, just money defense at and settlement in pushing interest their individual promotion. We cannot know how the indi- cases to trial. vidual may proceed, cases but canwe easi- ly complaint they tell from the will be The class certification we are reviewing different from each other to both the pursuant as to Federal Rule of Civil Proce- 23(b)(2). claims and the defenses. Whatever the dure That is error because 23(b)(2) “vulnerability” to sex discrimination of the only certification is available when “corporate injunctive culture” of this national corpo- declaratory “predomi- relief system ration with no centralized pro- Injunctive for nate.” declaratory relief motion, the various Plaintiffs’ possibly “predominate” claims and cannot neither, Wal-Mart’s defenses them do not women who will benefit from be- resemble one another.14 they longer cause no work at Wal-Mart majori- have no desire to return. The requirement The fourth under Rule 23 is ty now acknowledges that these class fairly the seven named “will members lack standing to sue for declara- and adequately protect the interests of the tory relief, injunctive yet leaves it to majority class.”15 The opinion and the the district court to decide whether give attention, district court this little no stay class, can in the class. For the whole everyone doubt because knows complaint punitive damages, seeks lawyers, being without real clients who can *27 a big, for class this one expect would the certified, instruct them if a class is will run dollars, claim to inbe the billions of like a they the case as choose. Based on their spill tobacco or oil case. descriptions own of the wrongs done to them in complaint, the the say injunctive interests of the It is risible to seven named diverge declaratory “predominate,” from each relief even for Inc., Gleich, 937, Mfg., E.g., 14. See Bacon v. Honda Am. 370 16. v. Molski 949- of 565, (6th Cir.2004). F.3d (9th 572-73 Cir.2003); Citgo 50 v. Allison Petroleum 402, (5th Cir.1998). Corp., 151 F.3d 411 23(a)(4). 15. Fed.R.Civ.P.

1197 unspecified generally the basis of some on standing to seek such do have who those formula.17 applicable dam- punitive majority says The relief. it would because predominate not

ages do plan are constitu- phases of this Both if a defen- intent” congressional inade- “thwart tionally defective because discrimination There will never egregious sex individualized.18 guilty quately dant so, adjudica- adjudication, but it let alone an That be an punished. not were jury, and a to judge Article III claim an tion to do with whether nothing has any owes whether Wal-Mart determine injunctive pre- relief declaratory and for money it will be particular woman the richest anyone but For dominates. any particular will pay, to nor required world, dollars are in the billions people how get a trial to establish woman ever and sol- words predominate over going to will never she is owed. much Wal-Mart how to about promises commands emn chance, to a example, prove for to get a Wal-Mart in the future. What behave manager as a that Dukes was tried jury much about would care or stocker cashier well, Arana or that perform did not to told Wal-Mart district court how that after time or at least did indeed steal enough cash getting after run its business fired investigation faith Wal-Mart good a to quit? reason. Under nonpretextual her for that violations, 23 Amendment19 and the than Rule Even worse both the Seventh damages in punitive for to management plan applicable court’s statute the district cases,20 is entitled Wal-Mart con- Title VII Wal-Mart’s action violates this class by jury of these issues. trial jury process due rights to stitutional order establishes The district court trial. for the legitimate way Nor is there a jury a in which phase a of the case first upon punitive a jury or court to decide liability liability (including will determine award, jury never will damages since injunction) on damages punitive for It damages award. compensatory amake basis, adjudicating the without the Due a class-wide firmly now established Then claim. dam- any punitive class merits member’s Process Clause constrains damages to punitive master” will ratio of phase, “special ages to a in a second ra- and that the damages,21 compensatory front and back total Wal-Mart’s determine to one ratio.22 rarely exceed, nine can tio discriminated pay for the women 1981a(c)(1). Stores, Inc., § 20. 42 U.S.C. 222 F.R.D. 17. Dukes v. 137, (D.Cal.2004). 180 Co. v. Auto. Ins. 21. See State Farm Mut. 1513, 408, Television, 123 S.Ct. 155 Campbell, 538 U.S. Pictures Columbia 18. See Feltner v. Indus., 1279, (2003); Cooper Inc. v. 340, 355, Inc., 585 140 L.Ed.2d S.Ct 523 U.S. 118 424, Inc., 532 U.S. (1998) ("[W]e Group, Tool Leatherman hold that the Sev 438 L.Ed.2d (2001); 1678, L.Ed.2d 674 jury S.Ct. 149 right 121 provides a Amendment enth Gore, Am., U.S. Inc. 517 BMW N. v. pertinent an award of trial on all issues (1996); L.Ed.2d 809 S.Ct. 134 including amount 116 statutory damages ... Co., (9th Inc., Industries, F.3d 963 v. Ford Motor 500 itself.”); White Raymark Cimino v. Co., Cir.2007); (5th Cir.1998) LLC Arco Prods. (finding Bains Cir.2005); (9th Zhang v. Am. Gem process F.3d 764 due viola Amendment and Seventh Cir.2003). Inc., Seafoods, plan trial where district court's tions determina did not allow individual action Campbell, Co. v. Mut. Ins. State Farm Auto. damages). liability and tions 408, 425, S.Ct. 538 U.S. *28 Television, (2003) ("[F]ew exceeding awards L.Ed.2d 585 Pictures Feltner v. Columbia 19. See 355, 1279, punitive and com- 340, single-digit ratio between Inc., a 140 S.Ct. 523 U.S. 118 degree, significant damages, to a (1998). pensatory 438 L.Ed.2d 1198 compensatory damages

Yet proposed will never be court’s course of action—that punitive determined here. After the dam proceed would allow this class action to in awarded, ages already have special been a a manageable manner that is both upon master will decide pay whatever lost process.” accordance with due awarded, by formula rather than appealed precisely has the unconstitution- of examination individual cases. We have ality order, in the district court’s so it is explained that “in multi-plaintiff, a multi- upon incumbent us to correct it. action, approach defendant that com pares each plaintiffs compensa individual majority The seeks cover under Hilao v. tory damages punitive damages with the Marcos,25 Estate Ferdinand where we of against awards each defendant accu more against allowed a class action the dictator rately reflects the true relationship be Philippines for victims of disappear- tween particular the harm for which a ances, torture, summary executions. responsible, defendant is punitive and the Assuming that that correctly case was de- damages assessed that defend cided,26this one is distinguishable. The case, analysis ant.” In this a ratio will victims of sex discrimination Wal-Mart possible punitive not be because damages can obtain individual counsel where will be unanchored to compensatory dama live and do not face problems prov- ges.24 ing injuries foreign suffered country. In its first opinion, majority explicit- Hilao plan included a to have a “random ly approved of the plan district court’s trial sample trial,27 of 137 claims” go jury in the depriva- face of the Due Process while in this case no individual cases will In opinion, tions. this second majority Hilao, go to trial. jury And award of “express[es] no opinion regarding Wal- compensatory damages would be made28 objections Mart’s to the district court’s” provide and would the information neces- scheme and it finds sufficient to “note” sary for the constitutionally required that “there “ra- range possibilities'— may may which not include the district analysis.”29 tio satisfy 767, process.”). (9th Cir.1996). will due See also Bains 25. 103 F.3d 782-87 Co., 764, LLCv. Arco Prods. 405 F.3d Cir.2005) Zhang Seafoods, v. Am. Gem Industries, Inc., Raymark 26. v. Cimino Cf. Inc., 1020, (9th Cir.2003) 339 F.3d 297, (5th Cir.1998) (suggesting that (holding 7 to 1 ratio constitutional in discrim- stating Hilao is incorrect and that "we find case). ination agreement ourselves in with the thrust of the there”). dissenting opinion 23. Planned Parenthood the Columbia/Wil lamette, Activists, Inc. v. Am. Coalition of Life Marcos, v. Hilao Estate (9th Cir.2005). Indeed, 103 F.3d 422 F.3d it (9th Cir.1996). 782-84 punitive damages is now clear that cannot be plaintiff awarded punish to one in order to the defendant for harm caused to others. special 28. The master first examined the sam- Williams, -U.S.-, Philip Morris USA cases, ple and made recommendations as to 1057, 1063, 127 S.Ct. 166 L.Ed.2d 940 validity claim damages awards to the (2007). jury, which made the final determination as to both. Id. at procedure 783-84. No such Co., 24. See White v. Ford Motor suggested here. (9th Cir.2007) (due process 973-74 does not require jury regarding instruction constitu- Co., 29. See White v. Ford Motor ceiling punitive tional damages provided (9th Cir2007). 973-74 necessary will have information to con- analysis appeal). duct ratio on

1199 favorable to the bers, or not “whether these for reasons are serious There los- plaintiffs’ ac if class Class the class actions. class.”34 What constraining rules' class, because justification Worse, in the special many women tions need for es? rule usual to the exception “an they are who win? Women if the what and on be by is conducted litigation of sex because great suffered loss have parties named the individual half of puni- have to share the will discrimination largely to designed They are only.”30 many with women damages award tive “The attorneys’ problem. fees an solve to consider- not. entitled did Women who action of the class very core at the policy in addition to damages compensatory able problem the to overcome is mechanism deprived of them. Women pay will be lost the provide not recoveries do that small injunctive get will left Wal-Mart have who bring a solo any individual to for incentive them, no value to declaratory relief of A rights. her his or prosecuting action employees will new female Wal-Mart while by aggre problem this action solves class to other injustice the done benefit from recov potential relatively paltry gating the mostly words If the settlement women. (usu something worth someone’s into eries lawyers, money for the the women and That need attorney’s) labor.”31 ally an pyrrhic it be a will possibility, realistic a of the bar here. Much pertain not does victory indeed. dis by litigating sex living now earns discrimina Many sex claims. in prac- crimination a class is lawyer representing A elements satisfy the tion cases three without a client. lawyer tical effect accept case worth contingent fee make lawyers their compel principals as Clients damages potential, liability, high good ing, interests. With- agents to serve their as judgment, sweetened collectibility of a to control what individual clients out attorneys statutory by lagniappe the financial do, powerful have a lawyers These features individu awards.32 fees favor- on terms to settle case incentive fi “eliminate cases al sex discrimination themselves, necessarily fa- but not able make individu might nancial barriers with clients to their unknown vorable infeasible,”33 so unlikely lawsuits or al that are individual circumstances varying by Wal-Mart women discriminated lawyers. purported to their unknown can, They with need a class action. do not to con- any clients real The absence to hire agreements, afford contingent fee pursue free to the lawyers them leaves trol what the control lawyers own their about earnestly held views own their lawyers do for them. They will doubtless generally. good public by who employed Women views, try they will own which their have discrimination stand sex have suffered such as about injunction, get into if this sex discrimination lose a lot stores, manage its ought to how Wal-Mart members of goes forward. All action employ- promote train it should how judgment the class will be bound ought ees, and whether Wal-Mart and how 23, because, Rule under settlement unionized, though these social even mem- to be all class “shall include” judgment 2000e-5(k). 682, § Yamasaki, 42 U.S.C. 700- 32. 442 U.S. v. 30. Califano (1979). 2545, 701, L.Ed.2d 176 S.Ct. Corp., 151 F.3d Citgo Petroleum Allison 33. Windsor, 591, 521 U.S. Prods. v. 31. Amchem Cir.1998). (1997) L.Ed.2d 689 S.Ct. Corp., 109 v. Van Ru Credit (quoting Mace 23(c)(3). Fed.R.Civ.P. (1997)). *30 may views many be of little interest to require- class certification violates the they purport represent. the women to ments of Rule 23. It sacrifices rights Counsel will a practical also have interest injured by of women sex discrimination. maximizing attorneys’ fees. Wal-Mart And it violates Wal-Mart’s constitutional will have an in agreeing enough interest rights. may The class action be useful for lawyers’ fees so that the terms of an in- punishing and shifting Wal-Mart much of junction plaintiffs’ to which counsel will management lawyers its to the special agree True, less par- will be onerous. negotiating master and supervising the in- judicial ties must obtain approval of a set- junction. But it is not doing useful for tlement, but that is not much of a substi- justice between Wal-Mart and women tute for client judge control. The has a whom it have discriminated very considerable incentive to clear the because of their sex. And that is what large docket of a case so complex as to lawsuits are for. untriable, be almost judge and the also will The district approach court’s formula nothing know of the individual circum- dividing up punitive damages pay and back stances and needs of the 1.5 million mem- injured means that women by sex discrimi- Nor, bers of the class. in a proposed nation will any recovery have to share with urged upon settlement judge both women who were not. Women who were plaintiffs’ lawyers, and the defendant’s promoted fired or not good reasons will judge will the have the benefit of adver- money take from sarial do not presentations, except perhaps from deserve, get typically promoted those reinstated or disapprovingly as called “gadfly” well. opponents Compensatory damages of the settlement. A will be for- class action bargain “rough justice”37 settlement is “a feited. This is prof- indeed. fered for its approval without benefit of “Rough,” anyway. Since when were the adversarial investigation.”35 district courts converted into administra- agencies tive empowered ignore None of justice these burdens to need be justice? individual borne this case. No class action is necessary justice to obtain for women

wronged by sex discrimination at Wal-

Mart, because attorneys’ there is no fees

barrier to their obtaining jus- individual Plenty lawyers

tice. good make livings

litigating sex discrimination cases for con-

tingent fees.

The district court calls this class certifi- “historic,”36

cation a euphemism for “un-

precedented.” law, In the the absence of

precedent is no recommendation. This Pros., Windsor, Stores, Inc.,

35. Amchem Inc. v. 521 U.S. 37.Dukes v. Wal-Mart 222 F.R.D. 591, 621, S.Ct. 138 L.Ed.2d (D.Cal.2004) (deciding "that this (1997). 'rough justice’ is better than the alternative of member”). remedy any no all for Stores, Inc., 36. Dukes v. Wal-Mart 222 F.R.D. (D.Cal.2004). notes district either is warranted. committee's 1177 (E.D.N.Y.1997), aff'd, 164 F.R.D. and hour- both salaried employees, million (2d Cir.1998); Newberg also 1 see are or who range positions, a ly, with § at 272-74. As the on Class Actions 3:10 at one or more of Wal- employed were noted, “plaintiffs properly district country. 3,400 stores across Mart’s commonality by showing may demonstrate contend, the district court Plaintiffs legal have shared is that class members by found, is united a large that the class by facts or that share divergent sues discrimi- array company-wide complex core of facts but base their a common against women. natory practices legal relief on different theo claims for I, 222 (citing F.R.D. at 145 ries.” Dukes Numerosity 1. 1019). Hanlon, F.3d at 23(a)(1) be requires that the class Rule that Plaintiffs The district court found joinder of all members numerous that “so provided support evidence sufficient to had 23(a)(1). Fed.R.Civ.P. impracticable.” is factual and significant their contention not contest that numerosi- does Wal-Mart are common to all class legal questions here, parties that both ty given is satisfied analyzing Plaintiffs’ evi- members. After class includes proposed that the estimate dence, the district court stated: 1.5 million women. approximately permissive exceeded the Plaintiffs have establishing com- Commonality and minimal burden of (1) monality by providing: significant 23(a)(2) requires Rule company-wide corporate evidence of fact common questions of law or “there (a) policies, which include practices and 23(a)(2). class.” Fed.R.Civ.P. subjectivity personnel in deci- excessive relationship of Commonality focuses on the (c) (b) sions, stereotyping, and gender among class legal common facts and issues strong corporate cul- maintenance of a See, B. New e.g., Herbert members. (2) ture; gender statistical evidence of Conte, Newberg on Class berg & Alba discrimination; by caused disparities (4th ed.2002). § at 271 We Actions 3:10 (3) gender evidence of anecdotal Chrysler Corp., 150 in Hanlon v. noted raises an Together, this evidence bias. Cir.1998): F.3d 1011 engages dis- inference that Wal-Mart 23(a)(2) per- has been construed Rule criminatory practices compensation law missively. questions All of fact and that affect all promotion rule. satisfy common to need not be manner. a common legal issues with The existence of shared I, at 166. The court 222 F.R.D. Dukes sufficient, divergent predicates factual is raised number noted facts is a common core salient as of com- challenges to Plaintiffs’ evidence legal remedies coupled disparate with fact, that, in most monality concluded but within the class. the Rule objections related not to of these at 1019. Id. 23(a) commonality but to requirement commonality qualita test “thus The of the case and ultimate merits signifi jury quantitative than addressed properly tive rather should —one may be rather than considering to the class the merits” cant issue common considering certification. See e.g., judge certification. See sufficient to warrant conclude, as Credit, Inc., further agree.2 id. We We Computer Savino Rule course, goes requirements of dence which to the recognize are not we that courts 2. Of stage] [if] certification even the class liberty [at "consider evi- only “at to” but must