United States Ninth Circuit

In a Title VII action alleging discrimination against female employees by Wal-Mart, certification of a Fed. R. Civ. P. 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay is affirmed where: 1) it was within the district court's discretion, and in line with Falcon, to determine that the commonality prerequisite to class certification was satisfied; 2) decentralized, subjective decision making could contribute to a common question of fact regarding the existence of discrimination; and 3) because the discrimination they claimed to have suffered occurred through alleged common practice -- e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping-the district court did not abuse its discretion by finding that their claims were sufficiently typical to satisfy Rule 23(a)(3). With respect to plaintiffs' claims for punitive damages, and as to those class members who no longer worked for Wal-Mart, the certification order is remanded so the district court could consider: 1) whether certification under Rule 23(b)(2) of the punitive damages claims would cause monetary relief to predominate; and 2) whether an additional class or classes may be appropriate under Rule 23(b)(3) with respect to the claims of former employees.

Appellate Information

• Argued 03/24/2009
• Decided 04/26/2010
• Published 04/26/2010

Judges

• Before ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, PAMELA ANN RYMER, MICHAEL DALY HAWKINS, BARRY G. SILVERMAN, SUSAN P. GRABER, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.

Court

• United States Ninth Circuit

Counsel

• For Appellant:
  
• Joel E. Krischer, Latham & Watkins, LLP, Los Angeles, CA, on behalf of amicus curiae Employers Group., Rae T. Vann, Norris, Tysse, Lampley & Lakis, LLP, Washington, D.C ., on behalf of amicus curiae Equal Employment Advisory Council., John H. Beisner, O'Melveny & Myers, LLP, Washington, D.C., on behalf of amicus curiae Chamber of Commerce of the United States., Daniel J. Popeo, Washington Legal Foundation, Washington, D.C., on behalf of amicus curiae Washington Legal Foundation., Laura C. Fentonmiller, Constantine Cannon LLP, Washington, D.C., on behalf of amicus curiae The Retail Industry Leaders Association., Pamela Coukos, Mehri & Skalet, Washington, D.C., on behalf of amici curiae The National Employment Lawyers Association, The National Partnership for Women & Families, and The National Women's Law Center., Daniel B. Kohrman, AARP Foundation Litigation, Washington, D.C., on behalf of amicus curiae AARP., Bill Lann Lee, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Oakland, CA, on behalf of amici curiae Consumers Union, National Consumer Law Center, Center for Constitutional Rights, and Communities for a Better Environment., Audrey J. Wiggins, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., on behalf of amici curiae Lawyers' Committee for Civil Rights Under Law, Asian American Justice Center, Asian Pacific American Legal Center of Southern California, Legal Aid Society-Employment Law Center, Mexican American Legal Defense & Educational Fund, NAACP Legal Defense & Educational Fund, Inc., National Association for the Advancement of Colored People, Public Advocates, Inc. & Women Employed., David R. Bruce, Santa Rose, CA, on behalf of amicus curiae California Employment Law Council., James M. Beck, Dechert LLP, Philadelphia, PA, on behalf of amicus curiae Product Liability Advisory Council, Inc., Mark Etheredge Burton, Hersh & Hersh, San Francisco, CA, on behalf of amicus curiae U.S. Women's Chamber of Commerce., Joe R. Whatley, Whatley, Drake & Kallas, New York, NY, on behalf of amicus curiae Public Justice, P.C., Barbara L. Sloan, Equal Employment Opportunity Commission, Office of the General Counsel, Washington, D.C., on behalf of amicus curiae Equal Employment Opportunity Commission.


• For Appellees:
  
• Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher, Los Angeles, CA, for the defendant/appellant/cross-appellee., Brad Seligman, The Impact Fund, Berkeley, CA, for the plaintiffs/appellees/cross-appellants.