Dukes v. Wal-Mart Store ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BETTY DUKES; PATRICIA SURGESON; 
CLEO PAGE; DEBORAH GUNTER;
KAREN WILLIAMSON; CHRISTINE
KWAPNOSKI; EDITH ARANA, No. 04-16688
Plaintiffs-Appellees,  D.C. No.
v. CV-01-02252-MJJ
WAL-MART, INC.,
Defendant-Appellant.

BETTY DUKES; PATRICIA SURGESON; 
CLEO PAGE; DEBORAH GUNTER;
No. 04-16720
KAREN WILLIAMSON; CHRISTINE
KWAPNOSKI; EDITH ARANA, D.C. No.
Plaintiffs-Appellants,  CV-01-02252-MJJ
v. ORDER AND
OPINION
WAL-MART, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted
August 8, 2005—San Francisco, California
Filed December 11, 2007
Before: Harry Pregerson, Andrew J. Kleinfeld, and
Michael Daly Hawkins, Circuit Judges.
16207
16208 DUKES v. WAL-MART, INC.
Opinion by Judge Pregerson;
Dissent by Judge Kleinfeld
DUKES v. WAL-MART, INC. 16211
COUNSEL
Theodore J. Boutrous, Jr., (argued & briefed) Gibson, Dunn
& Crutcher, Los Angeles, California, for the defendant-
appellant-cross-appellee.
16212 DUKES v. WAL-MART, INC.
Brad Seligman (argued), Jocelyn D. Larkin, The Impact Fund,
Berkeley, California; Joseph M. Sellers, Christine E. Webber,
Julie Goldsmith Reiser, Cohen, Milstein, Hausfeld & Toll,
Washington, D.C.; Irma D. Herrera, Debra A. Smith, Equal
Rights Advocates, San Francisco, California; Stephen Tinkler,
Charles Firth, Tinkler & Firth, Santa Fe, New Mexico; Debra
Gardner, Public Justice Center, Baltimore, Maryland; Steve
Stemerman, Elizabeth A. Lawrence, Davis, Cowell & Bowe,
LLP, San Francisco, California; Merit Bennett, Merit Bennett,
P.C., Santa Fe, New Mexico, (briefed) for the plain-
tiffs-appellees-cross appellants.
ORDER
The petition for panel rehearing is DENIED.
The panel’s Opinion and Dissent filed February 6, 2007,
appearing at 474 F.3d 1214 (9th Cir. 2007), are withdrawn.
The new Opinion and Dissent are filed concurrently with this
Order.
The petition for rehearing en banc is DENIED as moot. The
parties may file a new petition for rehearing or suggestion for
rehearing en banc as provided for by Federal Rule of Appel-
late Procedure 40.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs filed a class action suit against Wal-Mart alleging
sexual discrimination under Title VII of the 1964 Civil Rights
Act. The district court certified the class with minor modifica-
tions to Plaintiffs’ proposed class. We have jurisdiction under
28 U.S.C. § 1292(e). For the reasons set forth below, we
DUKES v. WAL-MART, INC. 16213
affirm the district court, concluding that it did not abuse its
discretion when it certified the class.
BACKGROUND
Plaintiffs’ Third Amended Complaint, brought on behalf of
six named plaintiffs and all others similarly situated, asserts
claims against Wal-Mart for sex discrimination under Title
VII of the 1964 Civil Rights Act. Plaintiffs allege that women
employed in Wal-Mart stores: (1) are paid less than men in
comparable positions, despite having higher performance rat-
ings and greater seniority, and (2) receive fewer — and wait
longer for — promotions to in-store management positions
than men. Plaintiffs contend that Wal-Mart’s strong, central-
ized structure fosters or facilitates gender stereotyping and
discrimination, that the policies and practices underlying this
discriminatory treatment are consistent throughout Wal-Mart
stores, and that this discrimination is common to all women
who work or have worked in Wal-Mart stores.
On April 28, 2003, Plaintiffs filed a motion to certify a
nationwide class of women who have been subjected to Wal-
Mart’s allegedly discriminatory pay and promotions policies.
The proposed class consists of women employed in a range of
Wal-Mart positions — from part-time entry-level hourly
employees to salaried managers — and is estimated to include
more than 1.5 million women. The class seeks injunctive and
declaratory relief, back pay, and punitive damages, but does
not seek traditional “compensatory” damages.
Plaintiffs proposed that the district court certify the follow-
ing class pursuant to Federal Rule of Civil Procedure 23:
All women employed at any Wal-Mart domestic
retail store at any time since December 26, 1998,
who have been or may be subjected to Wal-Mart’s
challenged pay and management track promotions
policies and practices.
16214 DUKES v. WAL-MART, INC.
Dukes v. Wal-Mart Stores, Inc. (“Dukes I”), 222 F.R.D. 137,
141-42 (N.D. Cal. 2004).
On September 23, 2003, after the parties had conducted
extensive discovery and filed copious briefs, the district court
heard oral argument. At the hearing, Wal-Mart emphasized
the “historic” nature of Plaintiffs’ motion, inasmuch as it con-
cerns a class of approximately 1.5 million women who work
or worked in one or more of Wal-Mart’s 3,400 stores in 41
regions at any time since 1998. The court acknowledged Wal-
Mart’s concerns but noted that, while the class size was large,
the issues were not unusual.
I. DISTRICT COURT PROCEEDINGS
On June 21, 2004, the district court issued an eighty-four-
page order granting in part and denying in part Plaintiffs’
motion for class certification. See Dukes I, 222 F.R.D. at 187-
88. With respect to Plaintiffs’ claims for equal pay, the district
court granted Plaintiffs’ motion as to issues of alleged dis-
crimination and all forms of requested relief. With respect to
Plaintiffs’ promotion claim, the court’s finding was mixed.
The court certified the proposed class with respect to issues
of alleged discrimination (including liability for punitive dam-
ages, as well as injunctive and declaratory relief); however,
the court rejected the proposed class with respect to the
request for back pay because data relating to the challenged
promotions were not available for all class members. Both
parties appealed.
II. THE APPEAL
Pursuant to Federal Rule of Civil Procedure 23(f), Wal-
Mart appealed, contending that the district court erred by: (1)
concluding that the class met Rule 23(a)’s commonality and
typicality requirements; (2) eliminating Wal-Mart’s ability to
respond to individual Plaintiff’s claims; and (3) failing to rec-
ognize that Plaintiffs’ claims for monetary relief predomi-
DUKES v. WAL-MART, INC. 16215
nated over their claims for injunctive or declaratory relief.
Plaintiffs cross-appealed, asserting that the district court erro-
neously limited the backpay relief for many of Plaintiffs’ pro-
motion claims.
DISCUSSION
I. STANDARD AND SCOPE OF REVIEW
We review a district court’s decision regarding class certifi-
cation for abuse of discretion. See Staton v. Boeing Co., 327
F.3d 938, 953 (9th Cir. 2003). The district court’s decision to
certify a class is subject to “very limited” review and will be
reversed “only upon a strong showing that the district court’s
decision was a clear abuse of discretion.” Armstrong v. Davis,
275 F.3d 849, 867 (9th Cir. 2001) (citation omitted); see also
Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir.
2005) (“Abuse of discretion is ‘a highly deferential standard,’
under which the appellate court cannot substitute its ‘view of
what constitutes substantial justification for that of the district
court’; rather, the review ‘is limited to assuring that the dis-
trict court’s determination has a basis in reason.’ ” (citation
omitted)); Blyden v. Mancusi, 186 F.3d 252, 269 (2d Cir.
1999) (“A district court’s decision to certify a class is
reviewed for abuse of discretion, and ‘[a] reviewing court
must exercise even greater deference when the district court
has certified a class than when it has declined to do so.’ ”
(citation omitted)); Doniger v. Pac. Nw. Bell, Inc., 564 F.2d
1304, 1309 (9th Cir. 1997) (“[J]udgment of the trial court
should be given the greatest respect and the broadest discre-
tion” (citation omitted)). A court abuses its discretion if it
applies an impermissible legal criterion. See Molski v. Gleich,
318 F.3d 937, 946 (9th Cir. 2003). Moreover, the district
court’s factual findings as to the applicability of Rule 23
criteria are entitled to the traditional deference given to such
determinations. See Local Joint Executive Trust Fund v. Las
Vegas Sands, 244 F.3d 1152, 1161 (9th Cir. 2001) (citation
omitted).
16216 DUKES v. WAL-MART, INC.
Rule 23 provides district courts with broad discretion to
determine whether a class should be certified, and to revisit
that certification throughout the legal proceedings before the
court. See Armstrong v. Davis, 275 F.3d 849, 872 n.28 (9th
Cir. 2001). If later evidence disproves Plaintiffs’ contentions
that common issues predominate, the district court can at that
stage modify or decertify the class, see Gen. Tel. Co. of Sw.
v. Falcon, 457 U.S. 147, 160 (1982) (“Even after a certifica-
tion order is entered, the judge remains free to modify it in
light of subsequent developments in the litigation.”), or use a
variety of management devices to address the individualized
issues that have arisen, see In re Visa Check/Mastermoney
Antitrust Litig., 280 F.3d 124, 141 (2d Cir. 2001); 1 Newberg
on Class Actions § 4.26 at 4-91 to 4-97.1
Our review is limited to whether the district court correctly
selected and applied Rule 23’s criteria. See Bogus v. Am.
Speech & Hearing Ass’n., 582 F.2d 277, 289 (3d Cir. 1978);
Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295
(1st Cir. 2000) (“An abuse occurs when a court, in making a
discretionary ruling, relies upon an improper factor, omits
consideration of a factor entitled to substantial weight, or
mulls the correct mix of factors but makes a clear error of
judgment in assaying them.”). Thus, if Plaintiffs demonstrate
that they meet Rule 23’s requirements, they should be allowed
to pursue their action as a class. See Smilow v. Sw. Bell
Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir. 2003) (“There is
even less reason to decertify a class where the possible exis-
tence of individual damages issues is a matter of conjec-
ture.”).
1
As the district court acknowledged, Dukes I, 222 F.R.D. at 143,
although federal courts are no longer permitted to engage in “conditional
certification,” Fed. R. Civ. Proc. 23, advisory committee’s notes (2003
amends.), district courts retain the authority to amend or decertify a class
if, based on information not available or circumstances not anticipated
when the class was certified, the court finds that either is warranted.
DUKES v. WAL-MART, INC. 16217
II. CLASS CERTIFICATION AND RULE 23
[1] A district court may certify a class only if: “(1) the class
is so numerous that joinder of all members is impracticable;
(2) there are questions of law and fact common to the class;
(3) the claims or defenses of the representative parties are typ-
ical of the claims or defenses of the class; and (4) the repre-
sentative parties will fairly and adequately protect the
interests of the class.” Fed. R. Civ. P. 23(a).
The district court must also find that at least one of the fol-
lowing three conditions are satisfied: (1) the prosecution of
separate actions would create a risk of: (a) inconsistent or
varying adjudications or (b) individual adjudications disposi-
tive of the interests of other members not a party to those
adjudications; (2) the party opposing the class has acted or
refused to act on grounds generally applicable to the class; or
(3) the questions of law or fact common to the members of the
class predominate over any questions affecting only individ-
ual members, and a class action is superior to other available
methods for the fair and efficient adjudication of the contro-
versy. See Fed. R. Civ. P. 23(b).
The party seeking certification bears the burden of showing
that each of the four requirements of Rule 23(a) and at least
one requirement of Rule 23(b) have been met. See Zinser v.
Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended,
273 F.3d 1266 (9th Cir. 2001).
A. Rule 23(a)
The class in this case is broad and diverse. It encompasses
approximately 1.5 million employees, both salaried and
hourly, with a range of positions, who are or were employed
at one or more of Wal-Mart’s 3,400 stores across the country.
Plaintiffs contend, and the district court found, that the large
class is united by a complex array of company-wide discrimi-
natory practices against women.
16218 DUKES v. WAL-MART, INC.
1. Numerosity
[2] Rule 23(a)(1) requires that the class be “so numerous
that joinder of all members is impracticable.” Fed. R. Civ. P.
23(a)(1). Wal-Mart does not contest that numerosity is satis-
fied here, given that both parties estimate that the proposed
class includes approximately 1.5 million women.
2. Commonality
Rule 23(a)(2) requires that “there are questions of law or
fact common to the class.” Fed. R. Civ. P. 23(a)(2). Common-
ality focuses on the relationship of common facts and legal
issues among class members. See, e.g., 1 Herbert B. Newberg
& Alba Conte, Newberg on Class Actions § 3:10 at 271 (4th
ed. 2002). We noted in Hanlon v. Chrysler Corp., 150 F.3d
1011 (9th Cir. 1998):
Rule 23(a)(2) has been construed permissively. All
questions of fact and law need not be common to sat-
isfy the rule. The existence of shared legal issues
with divergent factual predicates is sufficient, as is a
common core of salient facts coupled with disparate
legal remedies within the class.
Id. at 1019.
The commonality test is qualitative rather than quantitative
— one significant issue common to the class may be suffi-
cient to warrant certification. See e.g., Savino v. Computer
Credit, Inc., 173 F.R.D. 346, 352 (E.D.N.Y. 1997), aff’d, 164
F.3d 81 (2d Cir. 1998); see also 1 Newberg on Class Actions
§ 3:10 at 272-74. As the district court properly noted, “plain-
tiffs may demonstrate commonality by showing that class
members have shared legal issues by divergent facts or that
they share a common core of facts but base their claims for
relief on different legal theories.” Dukes I, 222 F.R.D. at 145
(citing Hanlon, 150 F.3d at 1019).
DUKES v. WAL-MART, INC. 16219
The district court found that Plaintiffs had provided evi-
dence sufficient to support their contention that significant
factual and legal questions are common to all class members.
After analyzing Plaintiffs’ evidence, the district court stated:
Plaintiffs have exceeded the permissive and minimal
burden of establishing commonality by providing:
(1) significant evidence of company-wide corporate
practices and policies, which include (a) excessive
subjectivity in personnel decisions, (b) gender
stereotyping, and (c) maintenance of a strong corpo-
rate culture; (2) statistical evidence of gender dispar-
ities caused by discrimination; and (3) anecdotal
evidence of gender bias. Together, this evidence
raises an inference that Wal-Mart engages in dis-
criminatory practices in compensation and promo-
tion that affect all plaintiffs in a common manner.
Dukes I, 222 F.R.D. at 166. The court noted that Wal-Mart
raised a number of challenges to Plaintiffs’ evidence of com-
monality but concluded that, in fact, most of these objections
related not to the Rule 23(a) requirement of commonality but
to the ultimate merits of the case and “thus should properly
be addressed by a jury considering the merits” rather than a
judge considering class certification. See id. We agree.2 We
further conclude, as explained in more detail below, that it
was within the district court’s discretion to find that the com-
2
Of course, we recognize that courts are not only “at liberty to” but must
“consider evidence which goes to the requirements of Rule 23 [at the class
certification stage] even [if] the evidence may also relate to the underlying
merits of the case.” Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th
Cir. 1992). If the district court had rejected Wal-Mart’s arguments regard-
ing commonality solely because they overlapped with “merits issues,” that
would have been error. However, as we explain in the following sections,
the district court did not do this but, instead, conducted a “rigorous analy-
sis” of the conflicting evidence presented on the commonality question
and ultimately concluded that the commonality prerequisite was satisfied.
See Falcon, 457 U.S. at 161; Hanon, 976 F.2d at 509.
16220 DUKES v. WAL-MART, INC.
monality prerequisite to class certification was satisfied. See
Fed. R. Civ. P. 23(a)(2).
a. “Significant Proof” of a Corporate Policy of
Discrimination
[3] Plaintiffs presented four categories of evidence: (1)
facts supporting the existence of company-wide policies and
practices; (2) expert opinions supporting the existence of
company-wide policies and practices; and (3) expert statistical
evidence of class-wide gender disparities attributable to dis-
crimination; and (4) anecdotal evidence from class members
around the country of discriminatory attitudes held or toler-
ated by management. See Dukes I, 222 F.R.D. at 145. Wal-
Mart contends that this evidence is not sufficient to raise an
inference of discrimination.
(1) Factual Evidence
Plaintiffs presented evidence of: (1) uniform personnel and
management structure across stores; (2) Wal-Mart headquar-
ters’s extensive oversight of store operations, company-wide
policies governing pay and promotion decisions, and a strong,
centralized corporate culture; (3) consistent gender-related
disparities in every domestic region of the company. Such
evidence supports Plaintiffs’ contention that Wal-Mart oper-
ates a highly centralized company that promotes policies com-
mon to all stores and maintains a single system of oversight.
Wal-Mart does not challenge this evidence.
(2) Expert Opinion
Plaintiffs presented evidence from Dr. William Bielby, a
sociologist, to interpret and explain the facts that suggest that
Wal-Mart has and promotes a strong corporate culture — a
culture that may include gender stereotyping. Dr. Bielby
based his opinion on, among other things, Wal-Mart manag-
ers’ deposition testimony; organizational charts; correspon-
DUKES v. WAL-MART, INC. 16221
dence, memos, reports, and presentations relating to personnel
policy and practice, diversity, and equal employment opportu-
nity issues; documents describing the culture and history of
the company; and a large body of social science research on
organizational policy and practice and on workplace bias.
Dr. Bielby testified that by employing a “social framework
analysis,”3 he examined the distinctive features of Wal-Mart’s
policies and practices and evaluated them “against what social
science shows to be factors that create and sustain bias and
those that minimize bias.” In Dr. Bielby’s opinion, “social sci-
ence research demonstrates that gender stereotypes are espe-
cially likely to influence personnel decisions when they are
based on subjective factors, because substantial decision-
maker discretion tends to allow people to ‘seek out and retain
stereotyping-confirming information and ignore or minimize
information that defies stereotypes.’ ” Dukes I, 222 F.R.D. at
154. Dr. Bielby concluded: (1) that Wal-Mart’s centralized
coordination, reinforced by a strong organizational culture,
sustains uniformity in personnel policy and practice; (2) that
there are significant deficiencies in Wal-Mart’s equal employ-
ment policies and practices; and (3) that Wal-Mart’s person-
nel policies and practices make pay and promotion decisions
vulnerable to gender bias. See id.
Wal-Mart challenges Dr. Bielby’s third conclusion as
vague and imprecise because he concluded that Wal-Mart is
“vulnerable” to bias or gender stereotyping but failed to iden-
tify a specific discriminatory policy at Wal-Mart. Specifically,
Wal-Mart contends that Dr. Bielby’s testimony does not meet
the standards for expert testimony set forth in Federal Rule of
Evidence 702 and Daubert v. Merrell Dow Pharm., Inc.
(“Daubert I”), 509 U.S. 579 (1993), which held that a trial
3
For a description of the “social framework analysis,” see John Mona-
han and Larry Walker, Social Science in the Law: Cases and Materials
(4th ed. 1998).
16222 DUKES v. WAL-MART, INC.
court must act as a “gatekeeper” in determining whether to
admit or exclude expert evidence.
Wal-Mart made an identical argument to the district court
and the district court properly rejected it. Wal-Mart did not
(and does not) challenge Dr. Bielby’s methodology or con-
tend that his findings lack relevance because they “do[ ] not
relate to any issue in the case,” Daubert, 509 U.S. at 591, but
challenges only whether certain inferences can be persua-
sively drawn from his data. Because Daubert does not require
a court to admit or exclude evidence based on its persuasive-
ness, but rather, requires a court to admit or exclude evidence
based on its scientific reliability and relevance, id. at 587-90(evidence is relevant if it has “ ‘any tendency to make the
existence of any fact that is of consequence to the determina-
tion of the action more probable or less probable than it would
be without the evidence’ ” (citing Fed. R. Evid. 401), and rel-
evance standard “is a liberal one”), testing Dr. Bielby’s testi-
mony for “Daubert reliability” would not have addressed
Wal-Mart’s objections. It would have simply revealed what
Wal-Mart itself has admitted and courts have long accepted:
that properly analyzed social science data, like that offered by
Dr. Bielby, may add probative value to plaintiffs’ class action
claims. See Price Waterhouse v. Hopkins, 490 U.S. 228, 235-
36, 255, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (consider-
ing similar evidence offered by expert social psychologist).
Accordingly, Wal-Mart’s contention that the district court
was required to subject Dr. Bielby’s testimony to the Daubert
test, simply because the conclusion he reached seemed unper-
suasive absent certain corroborating evidence, is misplaced.
See Daubert, 490 U.S. at 595 (“The focus, of course, must be
solely on principles and methodology, not on the conclusions
that they generate.”). While a jury may ultimately agree with
Wal-Mart that, in the absence of a specific discriminatory pol-
icy promulgated by Wal-Mart, it is hard to believe, based
solely on Dr. Bielby’s social science analysis, that Wal-Mart
engaged in actual gender discrimination, that question must
DUKES v. WAL-MART, INC. 16223
be left to the merits stage of the litigation. At the class certifi-
cation stage, it is enough that Dr. Bielby presented properly-
analyzed, scientifically reliable evidence tending to show that
a common question of fact — i.e., “Does Wal-Mart’s policy
of decentralized, subjective employment decision making
operate to discriminate against female employees?” — exists
with respect to all members of the class.4 This he did and,
thus, we find no error in the district court’s acceptance of Dr.
Bielby’s evidence to support its finding of commonality.
(3) Statistical Evidence
It is well-established that commonality may be established
by raising an inference of class-wide discrimination through
the use of statistical analysis. See Caridad, 191 F.3d at 292,
overruled on other grounds by In re IPO, 471 F.3d at 39-42;
see also Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 278
(4th Cir. 1980) (recognizing that statistical data showing com-
4
As discussed further infra Part II.A.2.b, this court and many others
have held that “delegation to supervisors, pursuant to company-wide poli-
cies, of discretionary authority without sufficient oversight . . . gives rise
to common questions of fact warranting certification of the proposed
class.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 286 (2d
Cir. 1999), overruled on other grounds by In re Initial Public Offering
Sec. Litig. (“IPO”), 471 F.3d 24, 39-42 (2d Cir. 2006). See, e.g., id.; Sta-
ton v. Boeing Co., 327 F.3d 938, 955 (9th Cir. 2003) (rejecting argument
that “decisionmaking at Boeing is too decentralized to permit a class that
combines plaintiffs from disparate locales”); Shipes v. Trinity Indus., 987
F.2d 311, 316 (5th Cir. 1993) (upholding commonality finding where all
of company’s plants “utilized the same subjective criteria in making per-
sonnel decisions”); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557
(11th Cir. 1986) (holding that “[a]llegations of similar discriminatory
employment practices, such as . . . [the] use of entirely subjective person-
nel processes that operated to discriminate, would satisfy the commonality
and typicality requirements of Rule 23(a)” (quoting Carpenter v. Stephen
F. Austin State Univ., 706 F.2d 608, 617 (5th Cir. 1983)); Segar v. Smith,
738 F.2d 1249, 1276 (D.C. Cir. 1984) (explaining that “subjective criteria
may well serve as a veil of seeming legitimacy behind which illegal dis-
crimination is operating”).
16224 DUKES v. WAL-MART, INC.
parable disparities experienced by protected employees may
raise an inference of a policy or practice of discrimination).
Dr. Richard Drogin, Plaintiffs’ statistician, analyzed data at
a regional level. He ran separate regression analyses for each
of the forty-one regions5 containing Wal-Mart stores.6 He con-
cluded that “there are statistically significant disparities
between men and women at Wal-Mart in terms of compensa-
tion and promotions, that these disparities are wide-spread
across regions, and that they can be explained only by gender
discrimination.” Dukes I, 222 F.R.D. at 154. Dr. Marc Bend-
ick, Plaintiffs’ labor economics expert, conducted a “bench-
marking” study comparing Wal-Mart with twenty of its
competitors and concluded that Wal-Mart promotes a smaller
percentage of women than its competitors.7 See id.
5
Each region contains approximately 80 to 85 stores.
6
Regression analyses, in general terms, provide estimates of the effect
of independent variables on a single dependent variable. See Hemmings v.
Tidyman’s, Inc., 285 F.3d 1174, 1183-84 & n.9 (9th Cir. 2002). The pur-
pose of this methodology is to estimate the extent to which a particular
independent variable (in this case, gender) has influenced the dependent
variables of compensation and promotion. See id.; see also Rudebusch v.
Hughes, 313 F.3d 506, 511-12 (9th Cir. 2002). As long as the analyses
include enough relevant non-discriminatory independent variables (e.g.,
education, experience, performance, etc.), the results will indicate whether
any salary disparities are attributable to gender (thereby raising an infer-
ence of discrimination) or whether the disparities are attributable to other
factors (and thereby refuting such an inference). See Hemmings, 285 F.3d
at 1183-84 & n.9; see also EEOC v. Gen. Tel. Co. of Nw., Inc., 885 F.2d
575, 577 n.3 (9th Cir. 1989) (“A regression analysis is a common statisti-
cal tool . . . designed to isolate the influence of one particular factor —
[e.g.,] sex — on a dependent variable — [e.g.,] salary.” (citation omitted)).
7
Specifically, Dr. Bendick compared, or “benchmarked,” Wal-Mart
against twenty other similar general merchandise retailers by comparing
workforce data provided by the companies to the Equal Employment
Opportunity Commission (“EEOC”). Dukes I, 222 F.R.D. at 164. Dr.
Bendick analyzed the data to determine the extent to which women in the
relevant market sought promotion, so that an inference could be made that
roughly the same percentage of women would have sought promotion at
DUKES v. WAL-MART, INC. 16225
Wal-Mart challenges Dr. Drogin’s findings and faults his
decision to conduct his research on the regional level, rather
than analyze the data store-by-store. However, the proper test
of whether workforce statistics should be viewed at the macro
(regional) or micro (store or sub-store) level depends largely
on the similarity of the employment practices and the inter-
change of employees at the various facilities. See Kirkland v.
New York State Dept. of Corr. Servs., 520 F.2d 420, 425 (2d
Cir. 1975) (recognizing that the focus of analysis depends on
nature of defendant’s employment practices); 2 Barbara
Lindemann & Paul Grossman, Employment Discrimination
Law 1598, 1723 (3d ed. 1996).
Here, Dr. Drogin explained that a store-by-store analysis
would not capture: (1) the effect of district, regional, and
company-wide control over Wal-Mart’s uniform compensa-
tion policies and procedures; (2) the dissemination of Wal-
Mart’s uniform compensation policies and procedures result-
ing from the frequent movement of store managers; or (3)
Wal-Mart’s strong corporate culture. Because Dr. Drogin pro-
vided a reasonable explanation for conducting his research at
the regional level, the district court did not abuse its discretion
when it credited Dr. Drogin’s analysis and concluded that his
analysis supported Plaintiffs’ contention that Wal-Mart’s cor-
porate structure and policies led to a “pattern or practice” of
discrimination.
Wal-Mart also contends that the district court erred by not
finding Wal-Mart’s statistical evidence more probative than
Plaintiffs’ evidence because, according to Wal-Mart, its anal-
ysis was conducted store-by-store. However, contrary to Wal-
Wal-Mart if given the opportunity. See id. As Dr. Bendick explained, “The
logic in benchmarking is that, if retail chains comparable to Wal-Mart are
successfully employing women at some rate, then women are presumably
available, interested, and qualified to hold comparable positions at Wal-
Mart at a similar rate.” See id.16226 DUKES v. WAL-MART, INC.
Mart’s characterization of its analysis, its research was not
conducted at the individual store level. Dr. Joan Haworth,
Wal-Mart’s expert, did not conduct a store-by-store analysis;
instead she reviewed data at the sub-store level by comparing
departments to analyze the pay differential between male and
female hourly employees.8 Moreover, our job on this appeal
is to determine whether the district court abused its discretion
in finding that, based on all the evidence presented, there
existed common questions of fact sufficient to justify class
certification. See Armstrong, 275 F.3d at 867; Free Speech
Coalition, 408 F.3d at 618. Our job is not to re-examine the
relative probativeness of the commonality evidence ourselves.
Thus, even if we were to find, based on an independent
review of the record, that Wal-Mart’s statistical evidence was
more persuasive than Plaintiffs’ — which we do not, in any
event — this alone would not allow us to find that the district
court improperly relied on Dr. Drogin’s testimony as a valid
component of its commonality analysis or that the district
court erred in its ultimate conclusion that the commonality
prerequisite was satisfied.
Because the district court reasonably concluded that Dr.
Drogin’s regional analysis was probative and based on well-
established scientific principles, because Wal-Mart provided
little or no proper legal or factual challenge to it,9 and because
the district court was within its discretion when it found that
Dr. Hayworth’s evidence — which was stricken for failing to
satisfy the standards of Federal Rules of Evidence 702 and 70310
8
This means that Dr. Haworth ran separate regression analyses for: (1)
each of the specialty departments in the store, (2) each grocery department
in the store, and (3) the store’s remaining departments. She did not run
regression analyses to examine pay differential between male and female
salaried employees.
9
For example, although Wal-Mart maintains that the district court erred
by not requiring Dr. Drogin to perform a “Chow test” to determine
whether data could be properly aggregated, we have not found a single
case suggesting or requiring use of such a test.
10
In addition to her sub-store analysis, Dr. Haworth conducted a survey
of store managers. After reviewing the survey and its methodology, the
DUKES v. WAL-MART, INC. 16227
— did not undermine or contradict Dr. Drogin’s evidence (as
Wal-Mart insisted), the district court did not abuse its discre-
tion when it relied on Dr. Drogin’s use and interpretation of
statistical data as a valid component of its commonality analy-
sis.
(4) Anecdotal Evidence
Circumstantial and anecdotal evidence of discrimination is
commonly used in Title VII “pattern and practice” cases to
bolster statistical proof by bringing “the cold numbers con-
vincingly to life.” Int’l Bhd. of Teamsters v. United States,
431 U.S. 324, 339 (1977); see also Rudebusch, 313 F.3d at
517. Wal-Mart contends that the district court erred by con-
cluding that the anecdotal evidence, presented by Plaintiffs in
the form of 120 declarations, supported a finding of commonali-
ty.11 Wal-Mart maintains that the declarations depict a handful
of “widely divergent” events that cannot be deemed probative
or representative of discrimination in pay or management-
track promotions.
In their declarations, the potential class members testified
to being paid less than similarly situated men, being denied or
delayed in receiving promotions in a disproportionate manner
district court concluded that the store manager survey was biased both “on
its face” and in the way that it was conducted. Dukes II, 222 F.R.D. at
196-97 (noting that the survey’s results “are not the ‘product of reliable
principles and methods,’ and therefore are not the type of evidence that
would be ‘reasonably relied upon by experts’ ” (quoting Fed. R. Evid. 702,
703)). Dr. Haworth’s disaggregated analysis created pools too small to
yield any meaningful results. Wal-Mart has not appealed this issue.
Accordingly, this evidence is not properly before us. See Kohler v. Inter-
Tel Tech., 244 F.3d 1167, 1179 n.8 (9th Cir. 2001) (recognizing that
appellant waived a claim by failing to raise it in her briefs).
11
Plaintiffs submitted declarations from each of the class representa-
tives, as well as 114 declarations from putative class members around the
country. See Dukes I, 222 F.R.D. at 165.
16228 DUKES v. WAL-MART, INC.
when compared with similarly situated men, working in an
atmosphere with a strong corporate culture of discrimination,
and being subjected to various individual sexist acts. The dis-
trict court credited this evidence.
Wal-Mart contends that the district court erred because the
120 declarations cannot sufficiently represent a class of 1.5
million. However, we find no authority requiring or even sug-
gesting that a plaintiff class submit a statistically significant
number of declarations for such evidence to have any value.
Further, the district court did not state that this anecdotal evi-
dence provided sufficient proof to establish commonality by
itself, but rather noted that such evidence provides support for
Plaintiffs’ contention that commonality is present. See Dukes
I, 222 F.R.D. at 166 (“This anecdotal evidence, in combina-
tion with the other evidence previously discussed, further sup-
ports an inference that [Wal-Mart’s] policies and procedures
have the effect of discriminating against Plaintiffs in a com-
mon manner.”). Because the declarations raise an inference of
common discriminatory experiences and are consistent with
Plaintiffs’ statistical evidence, the district court did not abuse
its discretion when it credited Plaintiffs’ anecdotal evidence.
b. Subjective Decision-Making
As discussed above, the district court found substantial evi-
dence suggesting common pay and promotion policies among
Wal-Mart’s many stores. See Dukes I, 222 F.R.D. at 149. The
court also reasoned that Wal-Mart’s decision to permit its
managers to utilize subjectivity in interpreting those policies
offers additional support for a commonality finding. See id.
Relying on Sperling v. Hoffman-LaRoche, Inc., 924 F. Supp.
1346 (D.N.J. 1996), Wal-Mart challenges the latter conclu-
sion, contending that managers’ discretionary authority does
not support a finding of commonality because
“[d]ecentralized, discretionary decisionmaking is not inher-
ently discriminatory.”
DUKES v. WAL-MART, INC. 16229
It is well-established that subjective decision-making is a
“ready mechanism for discrimination” and that courts should
scrutinize it carefully. Sengupta v. Morrison-Knudsen Co.,
804 F.2d 1072, 1075 (9th Cir. 1986). Wal-Mart is correct that
discretionary decision-making by itself is insufficient to meet
Plaintiffs’ burden of proof. The district court recognized this,
noting that managerial discretion is but one of several factors
that supported a finding of commonality. See Dukes I, 222
F.R.D. at 148-50 (“And while the presence of excessive sub-
jectivity, alone, does not necessarily create a common ques-
tion of fact, where, as here, such subjectivity is part of a
consistent corporate policy and supported by other evidence
giving rise to an inference of discrimination, courts have not
hesitated to find that commonality is satisfied.”). Wal-Mart is
incorrect, however, that decentralized, subjective decision-
making cannot contribute to an inference of discrimination.
Indeed, courts from around the country have found
“[a]llegations of similar discriminatory employment practices,
such as the use of entirely subjective personnel processes that
operate to discriminate, [sufficient to] satisfy the commonality
and typicality requirements of Rule 23(a).” Shipes, 987 F.2d
at 316; see also supra note 4 and cases cited therein.
Plaintiffs produced substantial evidence of Wal-Mart’s cen-
tralized company culture and policies, see Dukes I, 222
F.R.D. at 151-54, thus providing a nexus between the subjec-
tive decision-making and the considerable statistical evidence
demonstrating a pattern of discriminatory pay and promotions
for female employees, see id. at 154-65; see also Reid v.
Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 670-72
(N.D. Ga. 2001) (recognizing that subjective decision-making
may give rise to an inference of discrimination where there is
evidence to provide a nexus between the subjective decision-
making and discrimination). Therefore, for the reasons stated
above, we find that the district court did not abuse its discre-
tion when it held that Wal-Mart’s subjective decision-making
policy raises an inference of discrimination, and provides sup-
16230 DUKES v. WAL-MART, INC.
port for Plaintiffs’ contention that commonality exists among
possible class members.
c. Conclusion
[4] Plaintiffs’ factual evidence, expert opinions, statistical
evidence, and anecdotal evidence demonstrate that Wal-
Mart’s female employees nationwide were subjected to a sin-
gle set of corporate policies (not merely a number of indepen-
dent discriminatory acts) that may have worked to unlawfully
discriminate against them in violation of Title VII. Evidence
of Wal-Mart’s subjective decision making policies provide
further evidence of a common practice of discrimination.
Many other courts have reached the same conclusion based on
similar evidence. See, e.g., Caridad, 191 F.3d at 286, over-
ruled on other grounds by In re IPO, 471 F.3d at 39-42; Sta-
ton, 327 F.3d at 955; Shipes, 987 F.2d at 316; Cox, 784 F.2d
at 1557; Segar, 738 F.2d at 1276. Accordingly, we conclude
that the district court did not abuse its discretion in holding
that the “commonality” prerequisite to class certification was
satisfied.
3. Typicality
As an initial matter, Plaintiffs contend that Wal-Mart has
waived a challenge to the district court’s typicality finding by
failing to offer specific objections to the district court’s typi-
cality finding. However, because Wal-Mart refers, somewhat
obliquely, to the typicality factor in its opening brief and
because typicality and commonality are similar and tend to
merge, see Falcon, 457 at 157 n.13, we conclude that Wal-
Mart did not waive its opportunity to challenge the district
court’s findings with regard to typicality.12 Thus, although
12
Although the “commonality and typicality requirements of Rule 23(a)
tend to merge,” see Falcon, 457 U.S. at 157 n.13, each factor serves a dis-
crete purpose. Commonality examines the relationship of facts and legal
issues common to class members, while typicality focuses on the relation-
ship of facts and issues between the class and its representatives. See 1
Newberg on Class Actions, § 3:13 at 317.
DUKES v. WAL-MART, INC. 16231
Wal-Mart did not raise a specific challenge, it nevertheless
raised a general objection to the district court’s conclusion
that Plaintiffs’ evidence satisfies the typicality requirement.
As discussed below, to satisfy the typicality prerequisite,
Plaintiffs must demonstrate that their claims and their class
representatives are sufficiently typical of the class.
a. Plaintiffs’ Claims Are Sufficiently Typical
Rule 23(a)(3) requires that “the claims or defenses of the
representative parties be typical of the claims or defenses of
the class.” Fed. R. Civ. P. 23(a)(3). We stated in Hanlon that
“[u]nder the rule’s permissive standards, representative claims
are ‘typical’ if they are reasonably coextensive with those of
absent class members; they need not be substantially identi-
cal.” 150 F.3d at 1020. Some degree of individuality is to be
expected in all cases, but that specificity does not necessarily
defeat typicality. See Staton, 327 F.3d at 957.
[5] Thus, we must consider whether the injury allegedly
suffered by the named plaintiffs and the rest of the class
resulted from the same allegedly discriminatory practice. See
id. We agree with the district court that it did. Even though
individual employees in different stores with different manag-
ers may have received different levels of pay or may have
been denied promotion or promoted at different rates, because
the discrimination they allegedly suffered occurred through an
alleged common practice — e.g., excessively subjective
decision-making in a corporate culture of uniformity and gen-
der stereotyping — their claims are sufficiently typical to sat-
isfy Rule 23(a)(3).
b. Plaintiffs’ Representatives Are Sufficiently Typical
of the Class
Typicality requires that the named plaintiffs be members of
the class they represent. See Falcon, 457 U.S. at 156. There
is no dispute that the class representatives are “typical” of the
16232 DUKES v. WAL-MART, INC.
hourly class members, because almost all of the class repre-
sentatives hold hourly positions. Instead, Wal-Mart contends
that the class representatives are not typical of all female in-
store managers because only one of six class representative
holds a salaried management position, and she holds a some-
what low-level position.
[6] However, because all female employees faced the same
alleged discrimination, the lack of a class representative for
each management category does not undermine Plaintiffs’
certification goal. See Hartman v. Duffey, 19 F.3d 1459, 1471
(D.C. Cir. 1994) (recognizing that an employee can challenge
discrimination in “different job categories where the primary
practices used to discriminate in the different categories are
themselves similar. While it may be prudent to have the class
divided into sub-classes represented by a named plaintiff from
each of the differing job categories, it would not be necessary
to the validity of the class certification to do so.”); Paxton v.
Union Nat’l Bank, 688 F.2d 552, 562 (8th Cir. 1982) (holding
that “[t]ypicality is not defeated because of the varied promo-
tional opportunities at issue, or the differing qualifications of
plaintiffs and class members”).
[7] In addition, because the range of managers in the pro-
posed class is limited to those working in Wal-Mart’s stores,
it is not a very broad class, and a named plaintiff occupying
a lower-level, salaried, in-store management position is suffi-
cient to satisfy the “permissive” typicality requirement. Sta-
ton, 327 F.3d at 957 (recognizing that “[u]nder the rule’s
permissive standards,” plaintiffs are not required to offer a
class representative for each type of discrimination claim
alleged (quoting Hanlon, 150 F.3d at 1020)).
[8] Because Plaintiffs’ claims and Plaintiffs’ representa-
tives are sufficiently typical of the class, the district court
acted within its discretion when it found that Plaintiffs satis-
fied the typicality prerequisite.
DUKES v. WAL-MART, INC. 16233
4. Adequate Representation
[9] Rule 23(a)(4) permits certification of a class action only
if “the representative parties will fairly and adequately protect
the interests of the class.” Fed. R. Civ. P. 23(a)(4). This factor
requires: (1) that the proposed representative Plaintiffs do not
have conflicts of interest with the proposed class, and (2) that
Plaintiffs are represented by qualified and competent counsel.
See Hanlon, 150 F.3d at 1020; see also Molski, 318 F.3d at
955.
[10] Before the district court, Wal-Mart argued that Plain-
tiffs cannot satisfy this factor because of a conflict of interest
between female in-store managers who are both plaintiff class
members and decision-making agents of Wal-Mart. Relying
on Staton, the district court recognized that courts need not
deny certification of an employment class simply because the
class includes both supervisory and non-supervisory employ-
ees. See Dukes I, 222 F.R.D. at 168; see also Staton, 327 F.3d
at 958-59. We agree. Finally, because Wal-Mart does not
challenge the district court’s finding that Plaintiffs’ class rep-
resentatives and counsel are adequate, we need not analyze
this factor.
5. Conclusion
[11] Based on the evidence before it, which the district
court rigorously examined, see Falcon, 457 U.S. at 161;
Chamberlain v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir.
2005), we conclude that the district court did not abuse its dis-
cretion when it found that the Rule 23(a) elements were satis-
fied.
B. Rule 23(b)
[12] As mentioned earlier, Plaintiffs moved to certify the
class under Rule 23(b)(2), which requires that plaintiffs show
that “the party opposing the class has acted or refused to act
16234 DUKES v. WAL-MART, INC.
on grounds generally applicable to the class, thereby making
appropriate final injunctive relief . . . with respect to the class
as a whole.” Fed. R. Civ. P. 23(b)(2).13 The district court
agreed with Plaintiffs. See Dukes I, 222 F.R.D. at 170
(“Resolution of this issue is governed by Molski v. Gleich,
318 F.3d 937 (9th Cir. 2003), which holds that (b)(2) class
actions can include claims for monetary damages so long as
such damages are not the ‘predominant’ relief sought, but
instead are ‘secondary to the primary claim for injunctive or
declaratory relief.’ ”). Wal-Mart contends that the district
court merely “paid lip service” to Rule 23(b)(2) and erred in
certifying the class under Rule 23(b)(2) because claims for
monetary relief predominate over claims for injunctive and
declaratory relief.
[13] Rule 23(b)(2) is not appropriate for all classes and
“does not extend to cases in which the appropriate final relief
relates exclusively or predominantly to money damages.”
Fed. R. Civ. P. 23(b)(2), Adv. Comm. Notes to 1966 amend.,
39 F.R.D. 69, 102; see also Zinser, 253 F.3d at 1195 (“Class
certification under Rule 23(b)(2) is appropriate only where the
primary relief sought is declaratory or injunctive.”). In Molski
we refused to adopt a bright-line rule distinguishing between
incidental and nonincidental damages for the purposes of
determining predominance because such a rule “would nullify
the discretion vested in the district courts through Rule 23.”
Molski, 318 F.3d at 950. Instead, we examine the specific
facts and circumstances of each case, focusing predominantly
on the plaintiffs’ intent in bringing the suit. See id.; Kanter v.
Warner-Lambert Co., 265 F.3d 853, 860 (9th Cir. 2001); Lin-
ney v. Cellular Alaska P’ship, 151 F.3d 1234, 1240 n.3 (9th
Cir. 1998). At a minimum, however, we must satisfy our-
selves that: “(1) even in the absence of a possible monetary
recovery, reasonable plaintiffs would bring the suit to obtain
the injunctive or declaratory relief sought; and (2) the injunc-
13
The purported class need only satisfy one of Rule 23(b)’s prongs to
be sustainable. See Zinser, 253 F.3d at 1186.
DUKES v. WAL-MART, INC. 16235
tive or declaratory relief sought would be both reasonably
necessary and appropriate were the plaintiffs to succeed on
the merits.” Robinson, 267 F.3d at 164, quoted with approval
in Molski, 318 F.3d at 950 n.15.
1. Wal-Mart’s “Unrebutted” Evidence Does Not
Undermine Plaintiffs’ Claim That Injunctive and
Declaratory Relief Predominate
Wal-Mart first asserts that the district court “failed to even
evaluate” Rule 23(b)’s requirement that the challenged con-
duct be generally applicable to the class. Wal-Mart maintains
that its “unrebutted” statistics demonstrate that there is no evi-
dence of pervasive discrimination that would justify injunc-
tive relief and that, therefore, the “challenged conduct” does
not affect all members. However, Wal-Mart’s contention is
not persuasive. As explained above, Wal-Mart’s evidence was
rebutted by Plaintiffs to the extent that Plaintiffs’ evidence
and theories remain viable at this pre-merits analysis stage.
Further, the issue before us is whether Plaintiffs’ primary goal
in bringing this action is to obtain injunctive relief; not
whether Plaintiffs will ultimately prevail. See Molski, 318
F.3d at 950. Consequently, Wal-Mart cannot derive support
from this argument.
2. The Size of Plaintiffs’ Damages Request Does Not
Undermine Plaintiffs’ Claim That Injunctive and
Declaratory Relief Predominate
[14] Wal-Mart contends that monetary claims necessarily
predominate because this case involves claims that may
amount to billions of dollars. However, such a large amount
is principally a function of Wal-Mart’s size, and the predomi-
nance test turns on the primary goal of the litigation — not
the theoretical or possible size of the damage award. As the
district court stated,
[F]ocusing on the potential size of a punitive damage
award would have the perverse effect of making it
16236 DUKES v. WAL-MART, INC.
more difficult to certify a class the more egregious
the defendant’s conduct or the larger the defendant.
Such a result hardly squares with the remedial pur-
poses of Title VII.
Dukes I, 222 F.R.D. at 171. Because Wal-Mart has not shown
that the size of the monetary request undermines Plaintiffs’
claim that injunctive and declaratory relief predominate, we
find that Wal-Mart’s argument fails.
3. A Request for Backpay Does Not Undermine
Plaintiffs’ Claim That Injunctive and Declaratory
Relief Predominate
Wal-Mart asserts that Plaintiffs’ request for backpay
weighs against certification because it proves that claims for
monetary relief predominate. The district court reasoned that
backpay “is recoverable as an equitable, make-whole remedy
in employment class actions notwithstanding its monetary
nature.” Dukes I, 222 F.R.D. at 170. Wal-Mart contends that
the district court erroneously deemed backpay “equitable” and
erred by failing to recognize that backpay, whether “equita-
ble” or not, is still a form of monetary relief.
While the district court was correct in labeling back pay as
an equitable remedy available under Title VII, see 42 U.S.C.
§ 1981a(a) (referencing 42 U.S.C. § 2000e-5(g)), any sugges-
tion that back pay’s status as an equitable remedy somehow
prevents it from also being a form of monetary relief for pur-
poses of Rule 23(b)(2) is incorrect. Back pay is certainly not
of an “injunctive nature or of a corresponding declaratory
nature,” Fed. R. Civ. Proc. 23(b)(2), advisory committee’s
notes, and thus Plaintiffs’ request for back pay weighs against
certification under Rule 23(b)(2), its equitable nature notwith-
standing.
That a request for back pay weighs against Rule 23(b)(2)
certification, however, does not mean that certification under
DUKES v. WAL-MART, INC. 16237
this rule is improper whenever back pay is requested. If it did,
then the principal category of cases contemplated by the advi-
sory committee as being certifiable under Rule 23(b)(2) —
i.e., “actions in the civil-rights field where a party is charged
with discriminating unlawfully against a class,” Fed. R. Civ.
Proc. 23(b)(2), advisory committee’s notes — would no lon-
ger be eligible for (b)(2) certification unless the class mem-
bers agreed to forego the back pay remedy Congress
specifically made available to discrimination victims under
Title VII. This non-sensical result would not only thwart leg-
islative intent, but it would also put discrimination victims to
the Hobson’s choice of having to settle for only a partial rem-
edy in order to proceed as a class action or having to bear the
enormous costs of an individual lawsuit in order to receive the
make-whole “injunction plus back pay” remedy authorized by
Title VII. It is unlikely the Congress that approved both Rule
23(b)(2) and 42 U.S.C. § 1981a intended to put discrimination
victims to such a choice.
[15] Accordingly, while Plaintiffs’ request for back pay
does weigh against class certification under Rule 23(b)(2), the
district court did not abuse its discretion when it concluded,
like many courts before it, that this discrimination class action
was certifiable under Rule 23(b)(2) notwithstanding Plain-
tiffs’ prayer for back pay relief. See, e.g., Eubanks v. Billing-
ton, 110 F.3d 87, 92 (D.C. Cir. 1997) (“[I]t is not uncommon
in employment discrimination cases for the class . . . to seek
monetary relief in the form of back pay or front pay,” [in
addition to injunctive or declaratory relief, and still be certi-
fied under Rule 23(b)(2)]”). As Molski requires, we are satis-
fied that, “even in the absence of a possible [back pay]
recovery, reasonable plaintiffs would bring the suit to obtain”
an injunction against Wal-Mart’s discriminatory employment
practices and that such injunctive relief “would be both rea-
sonably necessary and appropriate [if] the plaintiffs . . . suc-
ceed on the merits.” Molski, 318 F.3d at 950 n.15.
16238 DUKES v. WAL-MART, INC.
4. A Request for Punitive Damages Does Not
Undermine Plaintiffs’ Claim That Injunctive and
Declaratory Relief Predominate
[16] While Plaintiffs do not ask for compensatory damages
in this case beyond the back pay just discussed, they do seek
punitive damages to punish Wal-Mart for its allegedly “reck-
less disregard of the rights of its women employees to equal
employment opportunity, and to deter similar misconduct by
Wal-Mart and other large retailers in the future.” Dukes I, 222
F.R.D. at 170. Wal-Mart contends that Plaintiffs’ request for
punitive damages is “wholly inconsistent” with Rule 23(b)(2)
certification. This view, however, has not been adopted by
this circuit and, if adopted, would thwart congressional intent
for the same reasons as discussed with respect to Plaintiffs’
request for back pay.14 Specifically, it would be non-sensical
to prevent victims of particularly egregious discrimination
from simultaneously proceeding as a class action under Rule
23(b)(2) — which was specifically designed to facilitate dis-
crimination class actions — and seeking the punitive damages
provided for under Title VII. See 42 U.S.C. § 1981a(a)(1).
Therefore, we find that the district court acted within its dis-
cretion when it concluded that Plaintiffs’ claims for punitive
damages do not predominate over their claims for injunctive
14
Wal-Mart cites to two cases, Williams v. Owens-Illinois, Inc., 665
F.2d 918, 928-29 (9th Cir. 1982), and Zinser, 253 F.3d at 1195, for the
proposition that this circuit will not certify a class action that involves
punitive damages. However, Williams and Zinser do not support Wal-
Mart’s contention. Rather, this court merely held that it was not an abuse
of discretion to deny class certification based on the specific facts pres-
ented in those cases. See Williams, 665 F.2d at 929 (holding that damages
requests were not incidental to the request for injunctive relief where
requested compensatory damages were not clearly compatible with class
injunctive relief); Zinser, 253 F.3d at 1195 (finding that a request for med-
ical monitoring claims against manufacturer of pacemaker cannot be cate-
gorized as primarily equitable or injunctive per se because many state
courts have recognized that medical monitoring relief is appropriate only
as an element of damages after independent proof of liability).
DUKES v. WAL-MART, INC. 16239
and declaratory relief. See Molski, 318 F.3d at 947-50;
Robinson, 267 F.3d at 164 (recognizing that a district court
may certify class under (b)(2) if it finds in its discretion that
the positive weight or value of the injunctive relief sought is
predominant even though punitive damages are claimed).
[17] In addition, the district court’s order contains a provi-
sion to allow Plaintiffs to opt-out of claims for punitive dam-
ages. See Dukes I, 222 F.R.D. at 173 (“Accordingly, notice
and an opportunity to opt-out shall be provided to the plaintiff
class with respect to Plaintiffs’ claim for punitive damages.”).
Although there is no absolute right of opt-out in a rule
23(b)(2) class, “even where monetary relief is sought and
made available,” other courts have recognized that district
courts should consider the possibility of opt-out rights. In re
Monumental Life Ins. Co., 365 F.3d 408, 417 (5th Cir. 2004);
Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894, 898 (7th Cir.
1999) ; see also Ticor Title Ins. Co., v. Brown, 511 U.S. 117,
121 (1994) (suggesting that provisions allowing plaintiffs to
opt-out of damages claims may be appropriate where plain-
tiffs move to certify a class bringing a claim for punitive dam-
ages). We note that a district court’s discretion to include an
opt-out provision is well-established. See, e.g., In re Monu-
mental Life Ins. Co., 365 F.3d at 417 (noting that district
courts have discretion to order notice and opt-out rights when
certifying a Rule 23(b)(2) class); Robinson, 267 F.3d at 165-
67 (recognizing that notice and opt-out can be afforded (b)(2)
class members with respect to non-incidental damage claims);
Jefferson, 195 F.3d at 898-99.
5. Class Certification May Not be Proper as to Class
Members Who Were Not Wal-Mart Employees as
of the Date Plaintiffs’ Complaint Was Filed
Wal-Mart’s final contention is that, because a substantial
number of the putative class members no longer work for
Wal-Mart — and, thus, no longer have standing to seek
injunctive or declaratory relief — injunctive and declaratory
16240 DUKES v. WAL-MART, INC.
relief cannot possibly predominate over monetary relief for
purposes of certifying this class under Rule 23(b)(2).
[18] We agree with Wal-Mart to this extent: those putative
class members who were no longer Wal-Mart employees at
the time Plaintiffs’ complaint was filed do not have standing
to pursue injunctive or declaratory relief. See Walsh v. Nev.
Dep’t of Human Res., 471 F.3d 1033 (9th Cir. 2006) (recog-
nizing that former employees lack standing to seek injunctive
relief because they “would not stand to benefit from an
injunction requiring the anti-discriminatory policies [to cease]
at [their] former place of work”); Am. Civil Liberties Union
of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006)
(“When evaluating whether [the standing] elements are pres-
ent, we must look at the facts ‘as they exist at the time the
complaint was filed.’ ” (quoting Lujan v. Defenders of Wild-
life, 504 U.S. 555, 569 n.4 (internal quotation marks omit-
ted)). Under these circumstances, it is difficult to say that,
“even in the absence of a possible monetary recovery, reason-
able plaintiffs [who lack standing to seek injunctive or declar-
atory relief] would [nonetheless] bring th[is] suit to obtain the
injunctive or declaratory relief sought.” Molski, 318 F.3d at950 n.15 (quoting Robinson, 267 F.3d at 164).
This does not mean that the entire class must fall. Those
putative class members who were still Wal-Mart employees
as of June 8, 2001 (when Plaintiffs’ complaint was filed) do
have standing to seek the injunctive and declaratory relief
requested in the complaint, see Lomax, 471 F.3d at 1015, and
we are satisfied that these putative class members would rea-
sonably bring this suit to put an end to the practices they com-
plain of “even in the absence of a possible monetary
recovery.” We are also satisfied that, if these plaintiffs ulti-
mately succeed on the merits, an injunction or declaratory
judgment preventing Wal-Mart from continuing to engage in
unlawful gender-based employment discrimination “would be
both reasonably necessary and appropriate.” Molski, 318 F.3d
at 950 n.15 (quoting Robinson, 267 F.3d at 164). Moreover,
DUKES v. WAL-MART, INC. 16241
for the reasons explained in Parts II.B.1-II.B.4, we are confi-
dent that the primary relief sought by these plaintiffs remains
declaratory and injunctive in nature notwithstanding their
request to also be “made whole” in a monetary sense to the
full extent provided for under Title VII. Accordingly, class
certification under Rule 23(b)(2) was appropriate at least as to
these plaintiffs.
[19] We thus remand to the district court for a determina-
tion of the appropriate scope of the class in light of the above
observation and in light of any evidence presented to it
regarding which putative class members were still Wal-Mart
employees as of June 8, 2001.
III. CLASS ACTION CAN PROCEED IN A WAY THAT IS BOTH
MANAGEABLE AND IN ACCORDANCE WITH DUE PROCESS
The parties agree that this is the largest class certified in
history. The district court was cognizant of this when it con-
cluded that the class size, although large, was not unmanage-
able. See Dukes I, 222 F.R.D. at 173. Indeed, the district court
acknowledged that, “while courts possess wide discretion to
flexibly respond to manageability issues that may arise during
the course of a class action, see, e.g., Blackie v. Barrack, 524
F.2d 891, 906, n.22 (9th Cir. 1975), this Court must be confi-
dent that such issues will not be of such a magnitude as to
defy its ability to oversee this case in a responsible and rea-
sonable manner.” Dukes I, 222 F.R.D. at 173. After “giv[ing]
these matters considerable thought and deliberation,” the dis-
trict court concluded that, with one minor exception,15 “the
size of the class would not present undue obstacles to manag-
ing” this class action. Id.
15
This one exception related to Plaintiffs’ promotion claim. The district
court determined that it would be unmanageable to fashion a remedy for
the subset of the class for whom objective applicant data did not exist. See
Dukes I, 222 F.R.D. at 183. We agree with the district court’s analysis and
resolution of this issue.
16242 DUKES v. WAL-MART, INC.
To demonstrate the manageability of the class action, the
district court outlined a trial plan based, in large part, on how
other courts have handled similarly large and complex class
action suits.16 Wal-Mart and a number of amici17 contend that
at least some aspects of this trial plan violate their due process
rights, as well as section 706(g)(2) of Title VII,18 the Rules
Enabling Act,19 and the Supreme Court’s decision in Team-
sters v. United States, 431 U.S. 324 (1977).
16
The trial plan described by the district court involved two stages. In
Stage I, Plaintiffs would attempt to prove that Wal-Mart engaged in a pat-
tern and practice of discrimination against the class via its company-wide
employment policies. If Plaintiffs were successful in this regard, they
would also attempt to prove an entitlement to punitive damages, which
would require proof that Wal-Mart’s pattern and practice of discrimination
“was undertaken maliciously or recklessly in the face of a perceived risk
that defendant’s actions would violate federal law.” Dukes I, 222 F.R.D.
at 174. If Plaintiffs prevailed in Stage I, the case would move to Stage II,
the remedy phase. The first task in Stage II would be to fashion class-wide
injunctive relief. The second task would be to calculate and distribute the
back pay award. As to Plaintiffs’ promotional claim, a formula would be
used to calculate the “lump sum” in back pay that Wal-Mart owes to the
class (a procedure similar to that employed in Domingo v. New England
Fish Co., 727 F.2d 1429, 1444-45 (9th Cir. 1984)). As to Plaintiffs’ equal
pay claim, the court would examine Wal-Mart’s employment records to
determine which class members were victims of this form of discrimina-
tion (and how much in back pay each is owed) to determine a second
“lump sum” owed by Wal-Mart. Dukes I, 222 F.R.D. at 174-186. A sepa-
rate procedure would then be used to distribute these lump sums to those
class members entitled to share in them — a stage in which Wal-Mart
would no longer have an interest. Id. at 179 n.49.
17
The panel was favored with an extraordinary variety of amicus briefs
that were both thoughtful and helpful to the panel in its deliberations.
18
This section says that “[n]o order of the court shall require . . . the
payment to [a person] of any back pay, if such individual . . . was refused
employment or advancement or was suspended or discharged for any rea-
son other than [unlawful] discrimination” and that, “[o]n a claim in which
an individual proves a violation under section 2000e-2(m) of this title and
a respondent demonstrates that the respondent would have taken the same
action in the absence of the impermissible motivating factor, the court . . .
shall not award damages.” Title VII, § 706(g)(2), codified at 42 U.S.C.
§ 2000e-5(g)(2).
19
This statute says that the Federal Rules of Civil Procedure, including
Rule 23 regarding class actions, “shall not abridge, enlarge or modify any
substantive right. All laws in conflict with such rules shall be of no further
force or effect after such rules have taken effect.” 28 U.S.C. § 2072.
DUKES v. WAL-MART, INC. 16243
At this pre-merits stage, we express no opinion regarding
Wal-Mart’s objections to the district court’s tentative trial
plan (or that trial plan itself), but simply note that, because
there are a range of possibilities — which may or may not
include the district court’s proposed course of action — that
would allow this class action to proceed in a manner that is
both manageable and in accordance with due process, man-
ageability concerns present no bar to class certification here.
For example, in Hilao v. Estate of Ferdinand Marcos, 103
F.3d 767, 782-87 (9th Cir. 1996), the district court employed
the following procedure to determine the amount of compen-
satory damages due the plaintiffs in a large class action:20
In all, 10,059 claims were received. The district
court ruled 518 of these claims to be facially invalid,
leaving 9,541 claims. From these, a list of 137
claims was randomly selected by computer. This
number of randomly selected claims was chosen on
the basis of the testimony of James Dannemiller, an
expert on statistics, who testified that the examina-
tion of a random sample of 137 claims would
achieve “a 95 percent statistical probability that the
same percentage determined to be valid among the
examined claims would be applicable to the totality
of claims filed.” . . .
The district court then appointed Sol Schreiber as a
special master (and a court-appointed expert under
Rule 706 of the Federal Rules of Evidence). Schrei-
ber supervised the taking of depositions . . . of the
137 randomly selected claimants. . . .
20
Hilao was a 10,000+ plaintiff class action filed by Philippine nationals
and their descendants who were allegedly victims of torture, summary
execution, and “disappearance” at the hands of Ferdinand E. Marcos, the
Philippines’ former president.
16244 DUKES v. WAL-MART, INC.
Schreiber then reviewed the claim[s] . . . [and] rec-
ommended that 6 claims of the 137 in the sample be
found not valid. . . .
Schreiber then recommended the amount of damages
to be awarded to the 131 [remaining] claimants. . .
.
Based on his recommendation that 6 of the 137
claims in the random sample (4.37%) be rejected as
invalid, he recommended the application of a five-
per-cent invalidity rate to the remaining claims. . . .
He recommended that the award to the class be
determined by multiplying the number of valid
remaining claims . . . by the average award recom-
mended for the . . . claims . . . . By adding the rec-
ommended awards . . . , Schreiber arrived at a
recommendation for a total compensatory damage
award . . . .
A jury trial on compensatory damages was [then]
held . . . . Dannemiller testified that the selection of
the random sample met the standards of inferential
statistics, that the successful efforts to locate and
obtain testimony from the claimants in the random
sample “were of the highest standards” in his profes-
sion, that the procedures followed conformed to the
standards of inferential statistics, and that the injuries
of the random-sample claimants were representative
of the class as a whole. Testimony from the 137
random-sample claimants and their witnesses was
introduced. Schreiber testified as to his recommen-
dations, and his report was supplied to the jury. The
jury was instructed that it could accept, modify or
reject Schreiber’s recommendations and that it could
independently, on the basis of the evidence of the
random-sample claimants, reach its own judgment as
DUKES v. WAL-MART, INC. 16245
to the actual damages of those claimants and of the
aggregate damages suffered by the class as a whole.
The jury deliberated for five days before reaching a
verdict. Contrary to the master’s recommendations,
the jury found against only two of the 137 claimants
in the random sample. As to the sample claims, the
jury generally adopted the master’s recommenda-
tions, although it did not follow his recommenda-
tions in 46 instances. As to the claims of the
remaining class members, the jury adopted the
awards recommended by the master. The district
court subsequently entered judgment for 135 of the
137 claimants in the sample in the amounts awarded
by the jury, and for the remaining plaintiffs . . . in the
amounts awarded by the jury, to be divided pro rata.
Hilao, 103 F.3d at 782-84 (footnotes omitted).
On appeal, the Hilao court was presented with some of the
same objections to its trial plan as Wal-Mart presents here.21
After a lengthy discussion, however, the Hilao court rejected
these challenges and approved of the trial plan, addressing the
due process issue as follows:
While the district court’s methodology in determin-
ing valid claims is unorthodox, it can be justified by
the extraordinarily unusual nature of this case.
“ ‘Due process,’ unlike some legal rules, is not a
technical conception with a fixed content unrelated
to time, place and circumstances.” Cafeteria and
Restaurant Workers Union, Local 473 v. McElroy,
367 U.S. 886, 895 . . . (1961). . . .
21
For example, the defendant in Hilao argued that the trial plan “vio-
lated its rights to due process because ‘individual questions apply to each
subset of claims, i.e., whether the action was justified, the degree of injury,
proximate cause, etc.’ ” 103 F.3d at 785.
16246 DUKES v. WAL-MART, INC.
The interest of the [defendant] that is affected is at
best an interest in not paying damages for any
invalid claims. . . . The statistical method used by the
district court obviously presents a somewhat greater
risk of error in comparison to an adversarial adjudi-
cation of each claim, since the former method
requires a probabilistic prediction (albeit an
extremely accurate one) of how many of the total
claims are invalid. . . . Hilao’s interest in the use of
the statistical method, on the other hand, is enor-
mous, since adversarial resolution of each class
member’s claim would pose insurmountable practi-
cal hurdles. The “ancillary” interest of the judiciary
in the procedure is obviously also substantial, since
9,541 individual adversarial determinations of claim
validity would clog the docket of the district court
for years. Under the balancing test set forth in
Mathews [v. Eldridge, 424 U.S. 319 (1976),] and
[Connecticut v.] Doehr[, 501 U.S. 1 (1991)], the pro-
cedure used by the district court did not violate due
process.
Hilao, 103 F.3d at 786-87 (footnote omitted).
[20] Because we see no reason why a similar procedure to
that used in Hilao could not be employed in this case,22 we
conclude that there exists at least one method of managing
this large class action that, albeit somewhat imperfect, none-
theless protects the due process rights of all involved parties.23
22
We note that this procedure would allow Wal-Mart to present individ-
ual defenses in the randomly selected “sample cases,” thus revealing the
approximate percentage of class members whose unequal pay or non-
promotion was due to something other than gender discrimination. The
“invalid claim rate” revealed by this process would, as it did in Hilao,
come very close to the invalid claim rate one would expect to find among
the entire class.
23
We do not suggest that this is the only conceivable way in which this
class action could lawfully progress. Indeed, the district court may want
DUKES v. WAL-MART, INC. 16247
Accordingly, we find no manageability-based reason to find
this otherwise-certifiable class unsuited to class certification.
CONCLUSION
For the reasons set forth above, we hold that the district
court acted within its broad discretion in concluding that it
would be better to handle this case as a class action instead
of clogging the federal courts with innumerable individual
suits litigating the same issues repeatedly. The district court
did not abuse its discretion in finding the pleading require-
ments of Rule 23 satisfied, at least as to those Plaintiffs who
were still Wal-Mart employees on June 8, 2001. Wal-Mart
failed to point to any specific management problems that
would render a class action impracticable in this case, and the
district court has the discretion to modify or decertify the
class should it become unmanageable. Although the size of
this class action is large, mere size does not render a case
unmanageable.
We deny Plaintiffs cross-appeal, because the district court
did not abuse its discretion when it found that back pay for
promotions may be limited to those Plaintiffs for whom proof
to consider whether a more limited “test case” procedure similar to that
employed in In re TMI Litig. Consol. Proceedings, 927 F. Supp. 834, 837
& n.5 (M.D. Pa. 1996), would aid the parties in evaluating the strength of
their respective claims.
And, of course, the option proposed by the district court may also
remain viable; indeed, it appears that a number of circuits have approved
of similar trial plans in discrimination cases. See, e.g., Segar, 738 F.2d at
1291 (explaining why a similar trial plan did not violate § 706(g)(2) of
Title VII and commenting that, “[i]f effective relief for the victims of dis-
crimination necessarily entails the risk that a few nonvictims might also
benefit from the relief, then the employer, as a proven discriminator, must
bear that risk”); see also Shipes, 987 F.2d at 316-19; Catlett v. Mo. High-
way & Transp. Comm’n, 828 F.2d 1260, 1266-67 (8th Cir. 1987). We
point to the Hilao procedure above solely because this circuit has already
considered and approved of that procedure in a decision we are bound to
follow.
16248 DUKES v. WAL-MART, INC.
of qualification and interest exists. Finally, we must reiterate
that our findings relate only to class action procedural ques-
tions; we neither analyze nor reach the merits of Plaintiffs’
allegations of gender discrimination.
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. The majority’s new opinion does not
solve the problems of its previous opinion. Class action certi-
fication still violates Rule 23, likely deprives many women
who have been discriminated against of the money they are
entitled to, and deprives Wal-Mart of its constitutional rights
to jury trial and due process of law.
Class actions may not be brought in federal court unless
they satisfy, among other things, the criteria of Federal Rule
of Civil Procedure 23(a):
(1) the class is so numerous that joinder of all mem-
bers is impracticable, (2) there are questions of law
or fact common to the class, (3) the claims or
defenses of the representative parties are typical of
the claims or defenses of the class, and (4) the repre-
sentative parties will fairly and adequately protect
the interests of the class.1
These criteria are called, for short: (1) numerosity; (2) com-
monality; (3) typicality; and (4) adequacy of representation.2
In the somewhat analogous case of General Telephone Co. of
1
Fed. R. Civ. P. 23(a).
2
Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1996); Staton v.
Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003).
DUKES v. WAL-MART, INC. 16249
the Southwest v. Falcon,3 the Supreme Court held that class
certification had been inappropriate, where a Mexican-
American who was not promoted had been allowed to sue on
behalf of all Mexican-American applicants for employment.
The Court held that the Rule 23 requirements apply fully to
Title VII class actions, and rejected the “ ‘tacit assumption’
underlying the [rejected] across-the-board rule that ‘all will be
well for surely the plaintiff will win and manna will fall on
all members of the class.’ ”4
In this case, the only one of the four Rule 23 requirements
that is satisfied is “numerosity.” In seeking to represent as
large a class as imaginable, plaintiffs have destroyed their
commonality, typicality, and adequacy of representation, as in
many other attempted class certifications that have over-
reached.5
This class lacks “commonality” because the questions
“common to the class”6 are insubstantial. The only common
question plaintiffs identify with any precision is whether Wal-
Mart’s promotion criteria are “excessively subjective.” This is
not a commonality with any clear relationship to sex discrimi-
nation in pay, promotions or terminations. Plaintiffs’ sociolo-
gist claims merely that a subjective system is “vulnerable” to
sex discrimination. But the Supreme Court recognized in Wat-
son v. Fort Worth Bank & Trust that, although disparate
impact analysis may be usable in subjective criteria cases,
3
457 U.S. 147 (1982).
4
Id. at 161 (quoting Johnson v. Georgia Highway Express, Inc., 417
F.2d 1122, 1127 (5th Cir. 1969) (Godbold, J., specially concurring)).
5
Cooper v. S. Co., 390 F.3d 695, 715 (11th Cir. 2004) (“Where, as here,
class certification was sought by employees working in widely diverse job
types, spread throughout different facilities and geographic locations,
courts have frequently declined to certify classes.”) (citations omitted); see
also Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004);
Stastny v. So. Bell Tel. & Tel. Co., 628 F.2d 267 (4th Cir. 1980).
6
Fed. R. Civ. P. 23(a)(2).
16250 DUKES v. WAL-MART, INC.
“leaving promotion decisions to the unchecked discretion of
lower level supervisors should itself raise no inference of dis-
criminatory conduct”7 because “[i]t is self-evident that many
jobs . . . require personal qualities that have never been con-
sidered amenable to standardized testing.”8 “Vulnerability” to
sex discrimination is not sex discrimination.
Plaintiffs’ only evidence of sex discrimination is that
around 2/3 of Wal-Mart employees are female, but only about
1/3 of its managers are female. But as the Supreme Court rec-
ognized in Watson, “[i]t is entirely unrealistic to assume that
unlawful discrimination is the sole cause of people failing to
gravitate to jobs and employers in accord with the laws of
chance.”9 Not everybody wants to be a Wal-Mart manager.
Those women who want to be managers may find better
opportunities elsewhere. Plaintiffs’ statistics do not purport to
compare women who want to be managers at Wal-Mart with
men who want to be managers at Wal-Mart, just female and
male employees, whether they want management jobs or not.
This class lacks “typicality” because “the claims or
defenses of the representative parties” are not “typical of the
claims or defenses of the class.”10 Plaintiffs must show “the
existence of a class of persons who have suffered the same
injury” as themselves.11 There are seven named plaintiffs.12
Here they are, with the gist of the claims they make in the
complaint:
7
487 U.S. 977, 990 (1988).
8
Id. at 999.
9
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988).
10
Fed. R. Civ. P. 23(a)(3); Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 613 (1996).
11
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 (1982).
12
The plaintiffs’ names add up to seven: Dukes, Surgeson, Arana, Wil-
liamson, Gunter, Kwapnoski, Cleo. The district court and the majority say
there are six named plaintiffs. One not concerned with individual justice
may not care about one woman more or less, but in our system we must
and do.
DUKES v. WAL-MART, INC. 16251
Betty Dukes African American female promoted to
manager, then demoted in retaliation for
discrimination complaints. Did not
apply for several slots filled by African
American females, African American
males, Hispanic female, Filipino male,
and Caucasian male because she was
discouraged by discrimination against
women.
Patricia Surgeson Sexually harassed, replaced by a male
who got a better title and more money,
denied management opportunities, quit.
Cleo Page Quickly promoted to manager, but
denied a department manager position
after being told it’s “a man’s world.” A
“Caucasian female” got the department
manager position. Page later got a dif-
ferent department manager position.
But a “Caucasian male,” a “Latina,” and
a “Caucasian female” got other man-
agement positions she sought and she
got paid less than a “Caucasian male”
with less seniority.
Chris Kwapnoski Sought management positions given to
less qualified men. Manager made sex-
ist remarks.
Deborah Gunter Sought management positions given to
less experienced males. Males she
trained were promoted instead of her.
Never got a management position. Fired
after complaining about discrimination
and a reduction in her hours.
Karen Williamson Sought management position but was
never promoted, even though “quali-
16252 DUKES v. WAL-MART, INC.
fied.” Males got promotions that were
not posted.
Edith Arana African American woman. Sought man-
agement position but never promoted.
Store manager told her he “did not want
women.” Fired after “falsely accused of
‘stealing time’ ” in retaliation for her
discrimination complaints.
“Typicality” exists only if these seven women’s claims are
“typical of the claims or defenses of the class.”13 They are not
even typical with respect to each other, let alone with respect
to the class of “[a]ll women employed at any Wal-Mart
domestic retail store at any time since December 26, 1998
who have been or may be subjected to Wal-Mart’s challenged
pay and management track promotions policies and prac-
tices.” Some of the seven named plaintiffs and members of
the putative class work for Wal-Mart, some have quit, some
have been fired. Some claim sex discrimination, some claim
mixed motive race and sex discrimination, some appear to
claim only race discrimination. Some claim retaliation, and
some appear to claim unfairness but not discrimination. Some
of the seven plead a prima facie case, some do not.
Nor are the defenses to the claims likely to be common
even as to these seven, let alone all female employees. Some
are likely to be vulnerable to defenses such as misconduct,
some are not. For example, Wal-Mart’s defense to Arana’s
claim might be that she really did steal time, or that Wal-Mart
fired her because the manager concluded in good faith after
reasonable investigation that she stole time. For Dukes, the
obvious potential defense is that they did promote her to man-
ager and hoped for the best, but she did not do well. For
Kwapnoski, the defense may be no defense at all, just a
13
Fed. R. Civ. P. 23(a)(3); Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 613 (1997).
DUKES v. WAL-MART, INC. 16253
money settlement and promotion. We cannot know how the
individual cases may proceed, but we can easily tell from the
complaint that they will be different from each other as to
both the claims and the defenses. Whatever the “vulnerabili-
ty” to sex discrimination of the “corporate culture” of this
national corporation with no centralized system for promo-
tion, the various Plaintiffs’ claims and Wal-Mart’s defenses
against them do not resemble one another.14
The fourth requirement under Rule 23 is that the seven
named plaintiffs “will fairly and adequately protect the inter-
ests of the class.”15 The majority opinion and the district court
give this little attention, no doubt because everyone knows
that the lawyers, being without real clients who can instruct
them if a class is certified, will run the case as they choose.
Based on their own descriptions of the wrongs done to them
in the complaint, the interests of the seven named plaintiffs
diverge from each other, as will the interests of other mem-
bers of the class. Women who still work at Wal-Mart and who
want promotions have an interest in the terms of an injunc-
tion. But an injunction and declaratory judgment cannot bene-
fit women who have quit or been fired and do not want to
return. For them, compensatory and punitive damages are
what matter. Those who are managers, and many Wal-Marts
have female store managers, have interests in preserving their
own managerial flexibility under whatever injunction may
issue, while those who are not and do not want to be manag-
ers may not share this concern. Those who face strong
defenses, such as if they did indeed steal time or money, have
a considerable interest in a fast, mass settlement, while those
who have impressive performance records have an interest in
pushing their individual cases to trial.
14
See Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 572-73 (6th Cir.
2004).
15
Fed. R. Civ. P. 23(a)(4).
16254 DUKES v. WAL-MART, INC.
The class certification we are reviewing is pursuant to Fed-
eral Rule of Civil Procedure 23(b)(2). That is error because
23(b)(2) certification is only available when injunctive and
declaratory relief “predominate.”16 Injunctive and declaratory
relief cannot possibly “predominate” for the women who will
benefit from neither, because they no longer work at Wal-
Mart and have no desire to return. The majority now acknowl-
edges that these class members lack standing to sue for
declaratory and injunctive relief, yet leaves it to the district
court to decide whether they can stay in the class. For the
whole class, the complaint seeks punitive damages, and for a
class this big, one would expect the claim to be in the billions
of dollars, like a tobacco or oil spill case. (
It is risible to say that injunctive and declaratory relief “pre-
dominate,” even for those who do have standing to seek such
relief. The majority says punitive damages do not predomi-
nate because it would “thwart congressional intent” if a defen-
dant guilty of egregious sex discrimination were not punished.
That may be so, but it has nothing to do with whether the
claim for declaratory and injunctive relief predominates. For
anyone but the richest people in the world, billions of dollars
are going to predominate over words and solemn commands
and promises about how to behave in the future. What Wal-
Mart cashier or stocker would care much about how the dis-
trict court told Wal-Mart to run its business after getting
enough cash to quit?
Even worse than the Rule 23 violations, the district court’s
management plan for this class action violates Wal-Mart’s
constitutional rights to due process and jury trial. The district
court order establishes a first phase of the case in which a jury
will determine liability (including liability for punitive dam-
ages and an injunction) on a class-wide basis, without adjudi-
cating the merits of any class member’s claim. Then in a
16
E.g., Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003); Allison
v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir. 1998).
DUKES v. WAL-MART, INC. 16255
second phase, a “special master” will determine Wal-Mart’s
total front and back pay for the women discriminated against
on the basis of some unspecified generally applicable formula.17
Both phases of this plan are constitutionally defective
because they are inadequately individualized.18 There will
never be an adjudication, let alone an adjudication by an Arti-
cle III judge and a jury, to determine whether Wal-Mart owes
any particular woman the money it will be required to pay,
nor will any particular woman ever get a trial to establish how
much she is owed. Wal-Mart will never get a chance, for
example, to prove to a jury that Dukes was tried as a manager
and did not perform well, or that Arana did indeed steal time
or at least that after a good faith investigation Wal-Mart fired
her for that nonpretextual reason. Under both the Seventh
Amendment19 and the statute applicable to punitive damages
in Title VII cases,20 Wal-Mart is entitled to trial by jury of
these issues.
Nor is there a legitimate way for the jury or court to decide
upon a punitive damages award, since the jury will never
make a compensatory damages award. It is now firmly estab-
lished that the Due Process Clause constrains punitive dam-
ages to a ratio of punitive damages to compensatory damages,21
17
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 180 (D. Cal. 2004).
18
See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355
(1998) (“[W]e hold that the Seventh Amendment provides a right to a jury
trial on all issues pertinent to an award of statutory damages . . . including
the amount itself.”); Cimino v. Raymark Industries, Inc., 151 F.3d 297,
311 (5th Cir. 1998) (finding Seventh Amendment and due process viola-
tions where district court’s trial plan for class action did not allow individ-
ual determinations of liability and damages).
19
See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355
(1998).
20
42 U.S.C. § 1981a(c)(1).
21
See State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003);
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001);
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996); White v. Ford Motor
Co., 500 F.3d 963 (9th Cir. 2007); Bans LLC v. ARCO Prods. Co., 405
F.3d 764 (9th Cir. 2005); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020(9th Cir. 2003).
16256 DUKES v. WAL-MART, INC.
and that the ratio can rarely exceed a nine to one ratio.22 Yet
compensatory damages will never be determined here. After
the punitive damages have already been awarded, a special
master will decide upon whatever lost pay may be awarded,
by formula rather than examination of individual cases. We
have explained that “in a multi-plaintiff, multi-defendant
action, an approach that compares each plaintiff’s individual
compensatory damages with the punitive damages awards
against each defendant more accurately reflects the true rela-
tionship between the harm for which a particular defendant is
responsible, and the punitive damages assessed against that
defendant.”23 In this case, a ratio analysis will not be possible
because punitive damages will be unanchored to compensa-
tory damages.24
In its first opinion, the majority explicitly approved of the
district court’s trial plan in the face of the Due Process depri-
vations. In this second opinion, the majority “express[es] no
opinion regarding Wal-Mart’s objections to the district
court’s” scheme and finds it sufficient to “note” that “there
are a range of possibilities — which may or may not include
the district court’s proposed course of action — that would
allow this class action to proceed in a manner that is both
22
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003)
(“[F]ew awards exceeding a single-digit ratio between punitive and com-
pensatory damages, to a significant degree, will satisfy due process.”). See
also Bains LLC v. ARCO Prods. Co., 405 F.3d 764, 777 (9th Cir. 2005)
and Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1044 (9th Cir.
2003) (holding 7 to 1 ratio constitutional in discrimination case).
23
Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coali-
tion of Life Activists, 422 F.3d 949, 961 (9th Cir. 2005). Indeed, it is now
clear that punitive damages cannot be awarded to one plaintiff in order to
punish the defendant for harm caused to others. Philip Morris USA v. Wil-
liams, 127 S.Ct. 1057, 1063 (2007).
24
See White v. Ford Motor Co., 500 F.3d 963, 973-74 (9th Cir. 2007)
(due process does not require jury instruction regarding constitutional ceil-
ing for punitive damages provided court will have information necessary
to conduct ratio analysis on appeal).
DUKES v. WAL-MART, INC. 16257
manageable and in accordance with due process.” Wal-Mart
has appealed precisely the unconstitutionality in the district
court’s order, so it is incumbent upon us to correct it.
The majority seeks cover under Hilao v. Estate of Ferdi-
nand Marcos,25 where we allowed a class action against the
dictator of the Philippines for victims of disappearances, tor-
ture, and summary executions. Assuming that that case was
correctly decided,26 this one is distinguishable. The victims of
sex discrimination by Wal-Mart can obtain individual counsel
where they live and do not face the problems of proving inju-
ries suffered in a foreign country. Hilao included a plan to
have a “random sample of 137 claims” go to jury trial,27 while
in this case no individual cases will go to trial. And in Hilao,
a jury award of compensatory damages would be made28 and
would provide the information necessary for the constitution-
ally required “ratio analysis.”29
There are serious reasons for these rules constraining class
actions. Class actions need special justification because they
are “an exception to the usual rule that litigation is conducted
by and on behalf of the individual named parties only.”30 They
are designed largely to solve an attorneys’ fees problem. “The
policy at the very core of the class action mechanism is to
overcome the problem that small recoveries do not provide
the incentive for any individual to bring a solo action prose-
25
103 F.3d 767, 782-87 (9th Cir. 1996).
26
Cf. Cimino v. Raymark Industries, Inc., 151 F.3d 297, 319 (5th Cir.
1998) (suggesting that Hilao is incorrect and stating that “we find our-
selves in agreement with the thrust of the dissenting opinion there”).
27
Hilao v. Estate of Marcos, 103 F.3d 767, 782-84 (9th Cir. 1996).
28
The special master first examined the sample cases, and made recom-
mendations as to claim validity and damages awards to the jury, which
made the final determination as to both. Id. at 783-84. No such procedure
is suggested here.
29
See White v. Ford Motor Co., 500 F.3d 963, 973-74 (9th Cir. 2007).
30
Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979).
16258 DUKES v. WAL-MART, INC.
cuting his or her rights. A class action solves this problem by
aggregating the relatively paltry potential recoveries into
something worth someone’s (usually an attorney’s) labor.”31
That need does not pertain here. Much of the bar now earns
a living by litigating sex discrimination claims. Many sex dis-
crimination cases satisfy the three elements that make a con-
tingent fee case worth accepting, good liability, high damages
potential, and collectibility of a judgment, sweetened by the
lagniappe of statutory attorneys fees awards.32 These features
of individual sex discrimination cases “eliminate financial
barriers that might make individual lawsuits unlikely or infeasi-
ble,”33 so women discriminated against by Wal-Mart do not
need a class action. They can, with contingent fee agreements,
afford to hire their own lawyers and control what the lawyers
do for them.
Women employed by Wal-Mart who have suffered sex dis-
crimination stand to lose a lot if this sex discrimination class
action goes forward. All the members of the class will be
bound by the judgment or settlement because, under Rule 23,
the judgment “shall include” all class members, “whether or
not favorable to the class.”34 What if the plaintiffs’ class
loses? Worse, for many women in the class, what if the plain-
tiffs win? Women who have suffered great loss because of sex
discrimination will have to share the punitive damages award
with many women who did not. Women entitled to consider-
able compensatory damages in addition to lost pay will be
deprived of them. Women who have left Wal-Mart will get
injunctive and declaratory relief of no value to them, while
new female Wal-Mart employees will benefit from the injus-
tice done to other women. If the settlement is mostly words
31
Amchem Prods. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace
v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)).
32
42 U.S.C. § 2000e-5(k).
33
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420 (5th Cir. 1998).
34
Fed. R. Civ. P. 23(c)(3).
DUKES v. WAL-MART, INC. 16259
for the women and money for the lawyers, a realistic possibil-
ity, it will be a pyrrhic victory indeed.
A lawyer representing a class is in practical effect a lawyer
without a client. Clients as principals compel their lawyers as
agents to serve their interests. Without individual clients to
control what they do, the lawyers have a powerful financial
incentive to settle the case on terms favorable to themselves,
but not necessarily favorable to their unknown clients with
varying individual circumstances that are unknown to their
purported lawyers.
The absence of any real clients to control them leaves the
lawyers free to pursue their own earnestly held views about
the public good generally. They will doubtless have their own
views, which they will try to get into an injunction, such as
about how Wal-Mart ought to manage its stores, how it
should train and promote employees, and how and whether
Wal-Mart ought to be unionized, even though these social
views may be of little interest to many of the women they pur-
port to represent. Counsel will also have a practical interest in
maximizing attorneys’ fees. Wal-Mart will have an interest in
agreeing to enough lawyers’ fees so that the terms of an
injunction to which plaintiffs’ counsel will agree will be less
onerous. True, the parties must obtain judicial approval of a
settlement, but that is not much of a substitute for client con-
trol. The judge has a very considerable incentive to clear the
docket of a case so large and complex as to be almost untri-
able, and the judge also will know nothing of the individual
circumstances and needs of the 1.5 million members of the
class. Nor, in a proposed settlement urged upon the judge by
both the plaintiffs’ and the defendant’s lawyers, will the judge
have the benefit of adversarial presentations, except perhaps
from those typically and disapprovingly called “gadfly” oppo-
nents of the settlement. A class action settlement is “a bargain
16260 DUKES v. WAL-MART, INC.
proffered for its approval without benefit of adversarial investi-
gation.”35
None of these burdens to justice need be borne in this case.
No class action is necessary to obtain justice for women
wronged by sex discrimination at Wal-Mart, because there is
no attorneys’ fees barrier to their obtaining individual justice.
Plenty of lawyers make good livings litigating sex discrimina-
tion cases for contingent fees.
The district court calls this class certification “historic,”36 a
euphemism for “unprecedented.” In the law, the absence of
precedent is no recommendation. This class certification vio-
lates the requirements of Rule 23. It sacrifices the rights of
women injured by sex discrimination. And it violates Wal-
Mart’s constitutional rights. The class action may be useful
for punishing Wal-Mart and shifting much of its management
to the lawyers and special master negotiating and supervising
the injunction. But it is not useful for doing justice between
Wal-Mart and women against whom it may have discrimi-
nated because of their sex. And that is what lawsuits are for.
The district court’s formula approach to dividing up puni-
tive damages and back pay means that women injured by sex
discrimination will have to share any recovery with women
who were not. Women who were fired or not promoted for
good reasons will take money from Wal-Mart they do not
deserve, and get reinstated or promoted as well. Compensa-
tory damages will be forfeited. This is “rough justice”37
indeed. “Rough,” anyway. Since when were the district courts
converted into administrative agencies and empowered to
ignore individual justice?
35
Amchem Pros., Inc. v. Windsor, 521 U.S. 591, 621 (1996).
36
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 142 (D. Cal. 2004).
37
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 177 (D. Cal. 2004)
(deciding “that this ‘rough justice’ is better than the alternative of no rem-
edy at all for any class member”).