*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,
v.
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filed a mo- 6, 2007, February appearing at 474 F.3d certify tion to a nationwide class of women (9th Cir.2007), are withdrawn.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,
“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
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
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.”
management position is sufficient
typicality requirement.
“permissive”
5. Conclusion
Staton,
(recognizing that
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
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
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
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
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
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.
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.
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