Dukes v. Wal-Mart Stores , 474 F.3d 1214 ( 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;
KAREN WILLIAMSON; CHRISTINE No. 04-16720
KWAPNOSKI; EDITH ARANA,
Plaintiffs-Appellants,  D.C. No.
CV-01-02252-MJJ
v. 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 February 6, 2007
Before: Harry Pregerson, Andrew J. Kleinfeld, and
Michael Daly Hawkins, Circuit Judges.
1333
1334 DUKES v. WAL-MART, INC.
Opinion by Judge Pregerson;
Dissent by Judge Kleinfeld
1338 DUKES v. WAL-MART, INC.
COUNSEL
Theodore J. Boutrous, Jr., (argued & briefed) Gibson, Dunn
& Crutcher, Los Angeles, California, for the defendant-
appellant-cross-appellee.
Brad Seligman (argued), The Impact Fund, Berkeley, Califor-
nia, and Christine E. Webber, Cohen, Milstein, Hausfeld &
Toll, Washington, D.C., and Jocelyn D. Larkin, The Impact
Fund (briefed), for the plaintiffs-appellees-cross-appellents.
Terri L. Ross, McDermott Will & Emery LLP,New York,
New York, for the amicus curiae.
Marissa M. Tirona, National Employment Lawyers Associa-
tion, San Francisco, California, for the amici curiae.
Ann Elizabeth Reesman, McGuiness Norris & Williams,
LLP,Washington, DC, for the amicus curiae.
Michael Foreman, Lawyers’ Committee for Civil Rights
Under Law, Washington, DC, for the amici curiae.
DUKES v. WAL-MART, INC. 1339
Daniel B Kohrman, AARP Foundation Litigation, Washing-
ton, DC, for the amici curiae.
Jeffrey A. Berman, Sidley Austin Brown & Wood, Los Ange-
les, California, and Bill Lann Lee, Lieff, Cabraser, Heimann
& Bernstein, LLP, San Francisco, California, for the amici
curiae.
Richard A. Samp, Washington Legal Foundation, Washing-
ton, DC, for the amicus curiae.
Evelyn L. Becker, O’Melveny & Meyers LLP, Washginton,
DC, for the amicus curiae.
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
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 alleged that
women employed in Wal-Mart stores: (1) are paid less than
men in comparable positions, despite having higher perfor-
mance ratings and greater seniority, and (2) receive fewer —
and wait longer for — promotions to in-store management
1340 DUKES v. WAL-MART, INC.
positions than men. Plaintiffs contend that Wal-Mart’s strong,
centralized 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.
Plaintiffs seek class-wide injunctive and declaratory relief,
lost pay, and punitive damages. They do not seek any com-
pensatory damages on behalf of the class, which is estimated
to include more than 1.5 million women. The class encom-
passes women employed in a range of Wal-Mart positions —
from part-time, entry-level, hourly employees to salaried
managers.
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.
Plaintiffs proposed that the district court certify the following
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.
Dukes v. Wal-Mart Stores, Inc. (“Dukes I”), 222 F.R.D. 137,
141-42 (N.D. Cal. 2004). On September 23, 2004, 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 concerns 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.
Before ruling on the class certification motion, the district
DUKES v. WAL-MART, INC. 1341
court clearly stated that its decision would be limited to proce-
dural questions because an adjudication of the merits was not
appropriate at that early stage.
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 as it related to issues of
alleged discrimination (including liability for punitive dam-
ages) as well as injunctive and declaratory relief. However,
the court denied Plaintiffs’ request for certification with
respect to backpay because data relating to challenged promo-
tions 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-
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
1342 DUKES v. WAL-MART, INC.
F.3d 938, 953 (9th Cir. 2003). The district court’s decision to
certify this 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 Coalition, 408 F.3d 613,
618 (9th Cir. 2005) (“Abuse of discretion is ‘a highly deferen-
tial standard,’ under which the appellate court cannot substi-
tute its ‘view of what constitutes substantial justification for
that of the district court’; rather, the review ‘is limited to
assuring that the district 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
discretion” (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 dis-
trict court’s factual findings as to the applicability of Rule 23
criteria are entitled to the traditional deference given to such
a determination. Local Joint Executive Trust Fund v. Las
Vegas Sands, 244 F.3d 1152, 1161 (9th Cir. 2001) (citation
omitted).
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
DUKES v. WAL-MART, INC. 1343
variety of management devices, 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.
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.”).
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
1344 DUKES v. WAL-MART, INC.
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 of company-wide discriminatory
practices against women.
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):
DUKES v. WAL-MART, INC. 1345
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).
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.
1346 DUKES v. WAL-MART, INC.
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 held that such objections related to the weight of
the evidence, rather than its validity, and thus should be
addressed by a jury at the merits phase. See id. Wal-Mart
renews a number of those challenges. We address each chal-
lenge below.
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; (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 head-
quarter’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;
and (4) gender stereotyping. Such evidence supports Plain-
tiffs’ contention that Wal-Mart operates a highly centralized
company that promotes policies common 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
DUKES v. WAL-MART, INC. 1347
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-
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,”1 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
1
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).
1348 DUKES v. WAL-MART, INC.
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
court must act as a “gatekeeper” in determining whether to
admit or exclude evidence.
Wal-Mart made an identical argument to the district court,
and the district court rejected it.2 See Dukes v. Wal-Mart
(“Dukes II”), 222 F.R.D. 189 (N.D. Cal. 2004). In a published
order, the district court denied Wal-Mart’s motion to strike
Dr. Bielby’s testimony, recognizing that an expert’s testimony
need not be exact or quantifiable. See id. at 192; see also
Dukes I, 222 F.R.D. at 154. In fact, it is well-recognized that
“[e]xperts ordinarily deal in probabilities, in ‘coulds’ and
‘mights.’ ” United States v. Rahm, 993 F.2d 1405, 1412 (9th
Cir. 1993).
The district court noted that Wal-Mart’s challenges — spe-
cifically its challenge that Dr. Bielby failed to identify spe-
cific stereotyping policies or incidents — “are of the type that
go to the weight, rather than the admissibility, of the evi-
dence.” Dukes I, 222 F.R.D. at 191-92. The district court was
on very solid ground here as it has long been recognized that
arguments evaluating the weight of evidence or the merits of
a case are improper at the class certification stage. See Eisen
v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) (“We find
nothing in either the language or history of Rule 23 that gives
a court any authority to conduct a preliminary inquiry into the
merits of a suit in order to determine whether it may be main-
tained as a class action.”); Selzer v. Bd. of Educ. of City of
New York, 112 F.R.D. 176, 178 (S.D.N.Y. 1986) (“A motion
for class certification is not the occasion for a mini-hearing on
the merits.”).
2
Wal-Mart first challenged Dr. Bielby’s analysis in a motion to strike
his declaration. Although the district court’s order denying Wal-Mart’s
motion is not specifically before us, its reasoning and conclusions have a
bearing on Wal-Mart’s challenge to its commonality finding.
DUKES v. WAL-MART, INC. 1349
In addition, courts need not apply the full Daubert “gate-
keeper” standard at the class certification stage. Rather, “a
lower Daubert standard should be employed at this [class cer-
tification] stage of the proceedings.” Thomas & Thomas Rod-
makers, Inc. v. Newport Adhesives & Composites, Inc., 209
F.R.D. 159, 162 (C.D. Cal. 2002); see also In re Visa Check/
Mastermoney Antitrust Litig., 280 F.3d at 132 n.4 (“A Dau-
bert motion is typically not made until later stages in litiga-
tion . . . and a district court should not postpone consideration
of a motion for class certification for the sake of waiting until
a Daubert examination is appropriate”). Wal-Mart cites no
authority for its argument that the district court should have
applied Daubert at the class certification stage.
Further, Wal-Mart does not challenge Dr. Bielby’s method-
ology, acknowledging what courts have long accepted —
namely, that social science statistics may add probative value
to plaintiffs’ class action claims. See Price Waterhouse v.
Hopkins, 490 U.S. 228, 235-36, 255 (1989) (considering simi-
lar evidence offered by an expert social psychologist); Fed. R.
Evid. 702 (recognizing that “scientific, technical, or other spe-
cialized knowledge” may assist the trier of fact). Instead,
Wal-Mart challenges the validity of Dr. Bielby’s findings
because he was unable to quantify with certainty the level of
alleged discrimination at Wal-Mart. However, case law clari-
fies that certainty is not required for an expert’s findings to
have probative value. See Price Waterhouse, 490 U.S. at 235-
36 (allowing social psychologist’s testimony that the defen-
dant was “likely influenced by sex stereotyping,” even though
the expert “admitted that she could not say with certainty
whether any particular comment was the result of stereotyp-
ing”); Daubert v. Merrell Dow Pharm., Inc. (“Daubert II”),
43 F.3d 1311, 1316 (9th Cir. 1995) (noting that scientific
knowledge “does not mean absolute certainty” and that expert
testimony should be admitted when “the proffered testimony
is based on scientifically valid principles” (internal quotations
omitted)). Accordingly, the district court was not required to
apply Daubert at the class certification stage. Even if Daubert
1350 DUKES v. WAL-MART, INC.
did apply at the certification stage, however, Dr. Bielby’s tes-
timony would satisfy the Daubert test because Dr. Bielby
employed a well-accepted methodology to reach his opinions
and because his testimony has a “reliable basis in the knowl-
edge and experience of [the relevant] discipline.” Daubert I,
509 U.S. at 592.
(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 v. Metro-North
Commuter R.R., 191 F.3d 283, 292 (2d Cir.1999); see also
Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 278 (4th Cir.
1980) (recognizing that statistical data showing comparable
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 regions3 containing Wal-Mart stores.4 He con-
cluded that “there are statistically significant disparities
3
Each region contains approximately 80 to 85 stores.
4
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)).
DUKES v. WAL-MART, INC. 1351
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.5 See id.
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-
5
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
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.
1352 DUKES v. WAL-MART, INC.
Mart’s uniform compensation policies and procedures result-
ing from the frequent movement of store managers; or (3)
Wal-Mart’s strong corporate culture. Such evidence supports
Plaintiffs’ claim that the discrimination was closely related to
Wal-Mart’s corporate structure and policies. Because Dr.
Drogin provided 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.
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-
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.6 Further, our job on this appeal is
to resolve whether the “evidence is sufficient to demonstrate
common questions of fact warranting certification of the pro-
posed class, not whether the evidence ultimately will be per-
suasive” to the trier of fact. In re Visa Check/Mastermoney
Antitrust Litig., 280 F.3d at 135 (emphasis added).7 Thus, it
6
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.
7
Wal-Mart maintains that the district court erred by not requiring Dr.
Drogin to perform a “Chow test” to determine whether data could be prop-
erly aggregated. The Chow test (named after the statistician who created
it) can be used to analyze whether two or more sets of data may be aggre-
gated into a single sample in a statistical model. Dukes I, 222 F.R.D. at
157. However, there is no legal support for the contention that a Chow test
must — or even should — be applied at the class certification stage. Fur-
ther, we have not found a single case suggesting that commonality would
be undermined if Plaintiffs’ evidence failed this test.
DUKES v. WAL-MART, INC. 1353
was appropriate for the court to avoid resolving “the battle of
the experts” at this stage of the proceedings. See Caridad, 191
F.3d at 292-93 (noting that a district court may not weigh con-
flicting expert evidence or engage in “statistical dueling” of
experts).
Finally, it is important to note that much of Dr. Haworth’s
evidence, which Wal-Mart argues was “unrebutted” by Wal-
Mart, was in fact stricken by the district court for failing to
satisfy the standards of Federal Rules of Evidence 702 and 703.8
See Dukes II, 222 F.R.D. at 196. The district court specifically
stated that Dr. Haworth’s stricken testimony could not be used
to undermine or contradict Dr. Drogin’s analysis, see Dukes
I, 222 F.R.D. at 157 (“As discussed in this Court’s Order re
Motions to Strike, however, [Dr. Haworth’s] survey is
stricken from the record. Accordingly, [Wal-Mart’s] reliance
on this survey to challenge Dr. Drogin’s statistical methods is
misplaced.”), and, as noted above, Wal-Mart does not appeal
this ruling. Thus, while Dr. Haworth’s testimony may be rele-
vant to an analysis of the merits of Plaintiffs’ claims, it does
not rebut Dr. Drogin’s evidence and does not support Wal-
Mart’s contention that its statistical evidence is more proba-
tive than Plaintiffs’ at the certification stage.
Because the district court reasonably concluded that Dr.
Drogin’s regional analysis was probative and based on well-
8
In addition to her sub-store analysis, Dr. Haworth conducted a survey
of store managers. After reviewing the survey and its methodology, the
district court concluded that the store manager survey was biased both “on
its face” and in the way that it was conducted. See 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).
1354 DUKES v. WAL-MART, INC.
established scientific principles, and because Wal-Mart pro-
vided little or no proper legal or factual challenge to it, the
district court did not abuse its discretion when it relied on Dr.
Drogin’s use and interpretation of statistical data as a valid
component of its commonality analysis.
(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); Rudebusch v. Hughes, 313 F.3d
506, 517 (9th Cir. 2002). Wal-Mart contends that the district
court erred by concluding that the anecdotal evidence, pre-
sented by Plaintiffs in the form of 120 declarations, supported
a finding of commonality.9 Wal-Mart maintains that the decla-
rations depict a handful of “widely divergent” events that can-
not 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
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.
9
Plaintiffs submitted declarations from each of the class representatives,
as well as 114 declarations from putative class members around the coun-
try. See Dukes I, 222 F.R.D. at 165.
DUKES v. WAL-MART, INC. 1355
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.”
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-
1356 DUKES v. WAL-MART, INC.
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.”); see also
Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993)
(“Allegations of similar discriminatory employment practices,
such as the use of entirely subjective personnel processes that
operate to discriminate, satisfy the commonality and typicality
requirements of Rule 23(a).” (citation omitted)).
Plaintiffs produced substantial evidence of Wal-Mart’s cen-
tralized company culture and policies, see Dukes I, 222
F.R.D. at 151-54, which provides 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-
port for Plaintiffs’ contention that commonality exists among
possible class members.
c. Conclusion
[4] Plaintiffs’ expert opinions, factual evidence, statistical
evidence, and anecdotal evidence present significant proof of
a corporate policy of discrimination and support Plaintiffs’
contention that female employees nationwide were subjected
to a common pattern and practice of discrimination. Evidence
of Wal-Mart’s subjective decision-making policy raises an
inference of discrimination and provides further evidence of
a common practice. Accordingly, we conclude that the district
DUKES v. WAL-MART, INC. 1357
court did not abuse its discretion in holding that Plaintiffs sat-
isfied the commonality factor.
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 Gen. Tel. Co. of Sw., 457 U.S. at 157 n.13, we
conclude that Wal-Mart did not waive its opportunity to chal-
lenge the district court’s findings with regard to typicality.10
Thus, although 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.
a. Plaintiffs’ Claims Are Sufficiently Typical
Rule 23(a)(3) requires that “the claims or defenses of the
representative parties are 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.
10
Although the “commonality and typicality requirements of Rule 23(a)
tend to merge,” Gen. Tel. Co. of Sw., 457 U.S. at 157 n.13, each factor
serves a discrete purpose. Commonality examines the relationship of facts
and legal issues common to class members, while typicality focuses on the
relationship of facts and issues between the class and its representatives.
See 1 Newberg on Class Actions, § 3:13 at 317.
1358 DUKES v. WAL-MART, INC.
[5] We must consider whether the named plaintiffs alleg-
edly suffered injury from a specific discriminatory practice by
the employer in the same manner that the members of the pro-
posed class did, and whether the named plaintiffs and the
remaining class members suffered a similar injury from a gen-
eral policy of employment discrimination. See id. Thus, even
though individual employees in different stores with different
managers may have received different levels of pay and were
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 may be sufficiently typical to
satisfy Rule 23(a)(3).
b. Plaintiffs’ Representatives Are Sufficiently Typical
of the Class
“The test of typicality is whether other members have the
same or similar injury, whether the action is based on conduct
which is not unique to the named plaintiffs, and whether other
class members have been injured by the same conduct.”
Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir.
1992) (internal quotation omitted); 1 Newberg on Class
Actions § 3:13 at 327. There is no dispute that the class repre-
sentatives are reasonably co-extensive with the hourly class
members, because almost all of the class representatives 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 lower level position.
[6] However, the lack of a class representative for each
management category does not undermine Plaintiffs’ certifi-
cation goal because all female employees faced the same dis-
crimination. See Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.
Cir. 1994) (recognizing that an employee can challenge dis-
crimination in “different job categories where the primary
DUKES v. WAL-MART, INC. 1359
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 factor.
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
1360 DUKES v. WAL-MART, INC.
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] Significant evidence and substantial legal authority
support the district court’s conclusion that Plaintiffs satisfied
the numerosity, commonality, typicality, and adequacy
requirements. Accordingly, we conclude that the district court
did not abuse its discretion when it found that Plaintiffs
offered evidence sufficient to satisfy Rule 23(a).
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
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).11 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
11
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. 1361
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. Nor have we recognized a distinction
between incidental and non-incidental damages in determin-
ing predominance for the purposes of Rule 23(b)(2) certifica-
tion. See id. 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).
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
1362 DUKES v. WAL-MART, INC.
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. Employment Status of Certain Plaintiffs Does Not
Obviate Claim That Injunctive and Declaratory
Relief Predominate
Wal-Mart next argues that injunctive relief claims cannot
predominate — as Rule 23(b)(2) requires — because many of
the class members are no longer employed by Wal-Mart.
However, there is little support for this contention. The Advi-
sory Committee Notes to Rule 23(b)(2) state that the subsec-
tion “is intended to reach situations where a party has taken
action or refused to take action with respect to a class, and
final relief of an injunctive . . . or . . . declaratory nature, set-
tling the legality of the behavior with respect to the class as
a whole, is appropriate.” 39 F.R.D. at 102. The Advisory
Committee illustrates this principle with cases, such as civil-
rights actions, where a single set of actions or inactions harm
an entire class of plaintiffs. Id. In cases such as these, stop-
ping the illegal behavior is vital to the interests of the class as
a whole.
Here, not only do the plaintiffs, current and former employ-
ees alike, state their common intention as ending Wal-Mar’s
allegedly discriminatory practices, but logic also supports
their declared intent.12 It is reasonable that plaintiffs who feel
12
Plaintiffs submitted declarations supporting their contention that their
requests for injunctive and declaratory relief predominate. Betty Dukes,
for example, stated that her “primary goal [in this litigation] is to ensure
that the employment practices at Wal-Mart which hinder the progress of
women wishing to enter management be changed to ensure fair and equi-
DUKES v. WAL-MART, INC. 1363
that their rights have been violated by an employer’s behavior
would want that behavior, and the injustice it perpetuates, to
end. In cases involving discrimination, it is especially likely
that even those plaintiffs safe from immediate harm will be
concerned about protecting those class members that are suf-
fering as they once did. Perhaps that is why no case discusses
the employment status of the plaintiffs as a factor in granting
or denying class-certification under Rule 23(b)(2) even when
former employees are explicitly mentioned as part of the
class. See, e.g., Robinson v. Metro-North Commuter R.R. Co.,
267 F.3d 147 (2d Cir. 2001) (failing to discuss the presence
of former employees in the class as a consideration in Rule
23(b)(2) analysis).
That some of the class members are former employees does
not alter the primary intent of the plaintiffs as a whole and,
therefore, does not subordinate Plaintiffs’ injunctive relief
claims.
3. 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
table treatment of female employees, and to ensure women receive equal
pay.” Edith Arana similarly noted that her “main concern is to end all
those employment practices at Wal-Mart that have prevented women from
obtaining management positions and to ensure equal pay for comparable
work and equal access to the training and mentoring necessary to advance
in the Company.” Wal-Mart counters that Plaintiffs “contend that injunc-
tive relief predominates because the self-serving declarations of a few rep-
resentatives say it does” but that money damages is their primary goal.
However, Wal-Mart fails to offer any evidence to cast doubt on Plaintiffs’
motivations. Accordingly, the district court reasonably relied on the state-
ments in Plaintiffs’ declarations.
1364 DUKES v. WAL-MART, INC.
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
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 damages request undermines Plaintiffs’
claim that injunctive and declaratory relief predominate, we
find that Wal-Mart’s argument fails.
4. A Request for Punitive Damages Does Not
Undermine Plaintiffs’ Claim That Injunctive and
Declaratory Relief Predominate
While Plaintiffs do not ask for compensatory damages in
this case, they do seek punitive damages to punish Wal-Mart
for its allegedly “reckless 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 incon-
sistent” with Rule 23(b)(2) certification. This view, however,
has not been adopted by this circuit.13 Rather, Molski states
13
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 pre-
sented in those cases. See Williams, 665 F.2d at 929 (holding that damages
DUKES v. WAL-MART, INC. 1365
that courts should look to the plaintiffs’ intent in bringing the
action. See Molski, 318 F.3d at 950 (“In order to determine
predominance, we have focused on the language of Rule
23(b)(2) and the intent of the plaintiffs in bringing the suit.”).
As mentioned above, Plaintiffs stated that their primary inten-
tion in bringing this case was to obtain injunctive and declara-
tory relief — not money damages — and Wal-Mart has failed
to effectively rebut Plaintiffs’ statements or cast doubt on
their reliability. Therefore, we find that the district court acted
within its discretion when it concluded that Plaintiffs’ claims
for punitive damages do not predominate over claims for
injunctive 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).
In addition, the district court’s order contains a provision to
allow Plaintiffs to opt-out of claims for punitive damages. 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
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).
1366 DUKES v. WAL-MART, INC.
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. A Request for Backpay Does Not Undermine
Plaintiffs’ Claim That Injunctive and Declaratory
Relief Predominate
Lastly, 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 a form of monetary relief.
As the district court noted, it is well-established that back-
pay is an equitable, make-whole remedy under Title VII that
is fully consistent with Rule 23(b)(2), notwithstanding its
monetary nature. See Dukes I, 222 F.R.D. at 170; see also
Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148,
1152-55 (9th Cir. 1999) (recognizing that backpay is equita-
ble relief); Allison v. Citgo Petroleum Corp., 151 F.3d 402,
415 (5th Cir. 1998) (“Back pay, of course, had long been rec-
ognized as an equitable remedy under Title VII.”); Eubanks
v. Billington, 110 F.3d 87, 92 (D.C. Cir. 1997) (“[I]t is not
uncommon in employment discrimination [(b)(2)] cases for
DUKES v. WAL-MART, INC. 1367
the class also to seek monetary relief in the form of backpay
or front pay.”).14
Wal-Mart concedes that Rule 23(b)(2) may be appropriate
in some cases where plaintiffs seek backpay, but maintains
that Plaintiffs’ backpay claims cut against them in this case.
In Eubanks, the D.C. Circuit recognized that “back pay is
characterized as a form of ‘equitable relief’ in Title VII
cases,” but that this “does not undercut the fact that variations
in individual class members’ monetary claims may lead to
divergences of interest that make unitary representation of a
class problematic in the damages phase.” 110 F.3d at 95(internal citations omitted). Eubanks envisioned that an opt-
out option provision in the final certification decree might
eliminate this concern. See id. (reiterating that requests for
backpay are not inconsistent with Rule 23(b)(2), but that
where conflicts of interests over backpay arise, a court can
require additional measures, like an opt-out right, to maintain
the class). Here, however, the district court did not make such
a provision for Plaintiffs to opt-out of the claim for backpay
damages.
Thus Plaintiff’s request for backpay, despite its equitable
nature, may weigh against a finding that injunctive or declara-
tory relief predominates.
[15] Case law supports the district court’s conclusion that
Plaintiffs’ requests for injunctive and declaratory relief pre-
dominate over their request for monetary relief. Plaintiffs
have stated that it was their intent to obtain injunctive and
declaratory relief by bringing this suit, see Molski, 318 F.3d
14Wal-Mart cites to Great-West Life & Annuity Insurance Co. v. Knud-
son, 534 U.S. 204 (2002), arguing that the district court erred in failing to
recognize that backpay is not a form of equitable relief. However, Great-
West Life does not support Wal-Mart’s contention. In fact, Great-West Life
states that backpay under Title VII is an “integral part of the equitable
remedy.” Id. at 218 n.4.
1368 DUKES v. WAL-MART, INC.
at 950, and Wal-Mart has failed to effectively rebut Plaintiffs’
contention. The district court’s interpretation of Plaintiffs’
backpay request may have been erroneous, but that finding
does not require reversal because the district court did not rely
on improper factors, omit consideration of important factors,
or clearly err in assaying factors. See Waste Mgmt. Holdings,
Inc., 208 F.3d at 295. Accordingly, the district court did not
abuse its discretion when it found that Plaintiffs offered evi-
dence sufficient to satisfy Rule 23(b)(2)’s requirement that
claims for declaratory or injunctive relief predominate.
III. THE DISTRICT COURT DID NOT DEPRIVE WAL-MART OF
DEFENSES OR ALTER SUBSTANTIVE LAW
This case involves the largest certified class in history. The
district court was cognizant of this fact when it concluded that
the class size, although large, was not unmanageable. In ana-
lyzing the manageability of the class at all stages of the case,
the district court reasoned that if, at the merits stage, Wal-
Mart was found liable of discrimination, the court could
employ a formula to determine the amount of backpay and
punitive damages owed to the class members. Wal-Mart con-
tends that, by reaching this conclusion, the district court “de-
cided to strip Wal-Mart of its right to defend itself.”
Raising objections more appropriate for the merits stage,
Wal-Mart maintains that it has the right to an individualized
hearing for each class member’s claim so that it may present
a defense relevant to the facts raised but that such a right can-
not be exercised in a class action because of the enormous
class size. Wal-Mart further contends that, by eliminating
Wal-Mart’s ability to present a defense to each individual’s
claims, the district court altered substantive law. For the rea-
sons stated below, we find that the district court neither
deprived Wal-Mart of substantive defenses nor altered sub-
stantive law when it certified the class.
DUKES v. WAL-MART, INC. 1369
A. Teamsters Does Not Require Individualized
Hearings
Title VII recognizes that it is an “unlawful employment
practice” for an employer “to discriminate against any indi-
vidual . . . because of such an individual’s race, color, reli-
gion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). An
employee who has suffered discrimination may obtain a dec-
laration to that effect as well as an injunction against further
discrimination. See id. § 2000e-5(g). That employee may also
seek monetary relief, including compensatory damages and
backpay, unless the employer is able to demonstrate that it
“would have taken the same action in the absence of the
impermissible motivating factor.” Id. § 2000e-5(g)(2)(B).
Further, an employee may seek punitive damages if he or she
can show that the employer acted “with malice or with reck-
less indifference to the federally protected rights of an
aggrieved individual.” Id. § 1981a(b)(1).
[16] A class action challenging a “pattern or practice” of
discrimination typically proceeds in two stages. First, at the
merits stage, the plaintiffs must prove that “discrimination
was the company’s standard operating procedure.” Int’l Bhd.
of Teamsters, 431 U.S. at 336. If the plaintiffs carry their bur-
den at this stage, all class members are entitled to a rebuttable
presumption that they are entitled to relief. See id. at 361. Sec-
ond, at the remedy stage, the district court “must usually con-
duct additional proceedings . . . to determine the scope of
individual relief.” Id. (emphasis added).
[17] Contrary to Wal-Mart’s assertion, Teamsters does not
require that a district court utilize individualized hearings at
the second stage. Rather, Teamsters notes that “additional
proceedings” are usually employed, but that the district court
has the discretion to be flexible and to “fashion such relief as
the particular circumstances of a case may require to effect
restitution.” Id. at 364 (quoting Franks v. Bowman Transp.
Co., 424 U.S. 747, 764 (1976)); see also Carnegie v. House-
1370 DUKES v. WAL-MART, INC.
hold Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (“Rule 23
allows district courts to devise imaginative solutions to prob-
lems created by the presence in a class action litigation of
individual damages issues.”).
[18] Thus, Teamsters does not require that the district court
afford Wal-Mart the opportunity to present individualized
defenses. See McKenzie v. Sawyer, 684 F.2d 62, 76 (D.C. Cir.
1982) (recognizing that Teamsters “does not mandate individ-
ualized hearings in every case,” but instead requires only
“some demonstration that the individual class members
receiving compensation were likely victims of illegal discrim-
ination”).
B. Title VII Does Not Require Individualized Hearings
[19] In Pettway v. American Cast Iron Pipe Co.(“Pettway
I”), 494 F.2d 211, 260 (5th Cir. 1974), the Fifth Circuit rea-
soned that individualized hearings may be inappropriate
where the employer’s conduct would reduce efforts to recon-
struct individually what would have happened in the absence
of discrimination to a “quagmire of hypothetical judgments.”15
We have already stated our agreement with this proposition,
see Domingo, 727 F.2d at 1444, as have many other circuits,
Pitre v. W. Elec. Co., 843 F.2d 1262, 1274 (10th Cir. 1988);
Pettway II, 681 F.2d at 1266; Segar v. Smith, 738 F.2d 1249,
1289-91 (D.C. Cir. 1984); Hameed v. Int’l Ass’n of Bridge,
15
Wal-Mart cites a law review article for the proposition that Pettway
I authorizes use of a formula to determine backpay but requires individual
hearings to determine whether class member’s were entitled to relief. See
Douglas L. Parker, Escape from the Quagmire: A Reconsideration of the
Role of Teamsters Hearings in Title VII Litigation, 10 Indus. Rel. L. J.
171, 177 (1988). On the contrary, Pettway I vacated the district court’s
order that required individual hearings, rejected the employer’s due pro-
cess argument, and remanded with specific instructions that the lower
court consider a class-wide award, making no reference to individual hear-
ings. See Pettway v. Am. Cast Iron Pipe Co. (“Pettway II”), 681 F.2d
1259, 1266 (11th Cir. 1982).
DUKES v. WAL-MART, INC. 1371
Structural & Ornamental Iron Workers, 637 F.2d 506, 520
(8th Cir. 1980); Stewart v. Gen. Motors Corp., 542 F.2d 445,
452-53 (7th Cir. 1976). Thus, the district court did not abuse
its discretion when it found that Title VII does not require a
district court to employ individualized hearings in this case.
C. Statistical Methods May Be Applied to Determine
Relief
The district court found that statistical formulas can incor-
porate detailed information from employee databases about
each individual to calculate whether, and in what amount, a
specific individual has been underpaid or been denied a pro-
motion. See Dukes I, 222 F.R.D. at 184-85. Wal-Mart con-
tends that the district court lacked authority to determine that
a statistical formula could be used to determine the total
amount of backpay and punitive damages owed to Plaintiffs
in the event that Wal-Mart is found liable for discriminating
against Plaintiffs. Wal-Mart is understandably concerned that
every class member could be given the same award or that
non-victims could receive awards.
However, this concern is irrelevant to this interlocutory
appeal. Numerous cases recognize the validity and potential
advantage of statistical evidence and formulas. McDonnell
Douglas v. Green, 411 U.S. 792, 805 (1973) (suggesting that
statistics as to an employer’s employment policy and practice
“may be helpful” in establishing that a particular employment
decision was in conformance with a general pattern of dis-
crimination); Obrey v. Johnson, 400 F.3d 691, 694-95 (9th
Cir. 2005) (“In a case in which the plaintiff has alleged that
his employer has engaged in a ‘pattern or practice’ of discrim-
ination, ‘[s]tatistical data is relevant because it can be used to
establish a general discriminatory pattern in an employer’s
hiring or promotion practices. Such a discriminatory pattern
is probative of motive and can therefore create an inference
of discriminatory intent with respect to the individual employ-
ment decision at issue.’ ” (quoting Diaz v. Am. Tel. & Tel.,
1372 DUKES v. WAL-MART, INC.
752 F.2d 1356, 1363 (9th Cir. 1985)); see also Ratanasen v.
California, 11 F.3d 1467, 1470-71 (9th Cir. 1993); Coral
Constr. Co. v. King County, 941 F.2d 910, 918 (9th Cir. 1991)
(“[F]or purposes of Title VII, ‘[w]here gross statistical dispar-
ities can be shown, they alone may in a proper case constitute
prima facie proof of a pattern or practice of discrimination.’ ”)
(quoting Hazelwood Sch. Dist. v. United States, 433 U.S. 299,
307-08 (1977)).16
In fact, statistical methods can be more accurate than other
methods for determining class member remedies. See Int’l
Bhd. of Teamsters, Local 734 Health & Welfare Trust Fund
v. Philip Morris, Inc., 196 F.3d 818, 823 (7th Cir. 1999)
(“Statistical methods could provide a decent answer — likely
a more accurate answer than is possible when addressing the
equivalent causation question in a single person’s suit.”).
Finally, the allocation of relief need not be perfect; when
computing a backpay award, “unrealistic exactitude is not
required and all doubts should be resolved against the dis-
criminating employer.” Shipes, 987 F.2d at 317; see also
Domingo, 727 F.2d at 1445.
Thus, the district court did not abuse its discretion when it
found that statistical methods may be applied to determine
relief in this case.
D. Civil Rights Act of 1991
Wal-Mart contends that the Civil Rights Act of 1991, Pub.
L. No. 108-198, 105 Stat. 1071 (1991) (“1991 Act”) (codified
16
Wal-Mart cites to several cases to support its contention that statistical
formulas may be appropriate where there are hundreds of class members
— rather than tens or hundreds of thousands. See Shipes, 987 F.2d at 315;
Catlett v. Mo. Highway & Transp. Comm’n, 828 F.2d 1260, 1268 (8th Cir.
1987); Domingo, 727 F.2d at 1435; Hameed, 637 F.2d at 520; Stewart,
542 F.2d at 450; EEOC v. O&G Spring & Wire Forms Specialty Co., 38
F.3d 872, 874 (7th Cir. 1994). However, none of these cases require the
application of a statistical formula to be limited to small class actions.
DUKES v. WAL-MART, INC. 1373
at 42 U.S.C. § 2000e), precludes use of the class action format
in this case because Wal-Mart is entitled to present a “same
decision” defense, which allows relief only to those individu-
als who can prove injury.
[20] As mentioned above, Title VII makes it an “unlawful
employment practice for an employer . . . to discriminate
against any individual . . . because of such individual’s . . .
sex.” 42 U.S.C. § 2000e-2(a)(1). Courts often view the causa-
tion issues in employment discrimination cases in two catego-
ries. In “single-motive” cases, causation is seen as a single
issue where the true basis for the adverse employment action
is either legal or illegal. See Costa v. Desert Palace, Inc.
(“Costa I”), 299 F.3d 838, 856 (9th Cir. 2002), aff’d, Costa
II, 539 U.S. 90. In other words, in “single-motive” gender dis-
crimination cases, plaintiffs succeed if they can demonstrate
that an adverse employment action was taken “because of”
the plaintiffs’ sex. 42 U.S.C. § 2000e-2(a).
[21] The 1991 Act recognized a second category for prov-
ing intentional discrimination: plaintiffs may attempt to estab-
lish liability for a “mixed motive” violation. 42 U.S.C.
§ 2000e-2(m). In “mixed-motive” cases, plaintiffs may
attempt to prove that impermissible discrimination was a
“motivating” factor for the employer’s challenged action.
Costa I, 299 F.3d at 856. If plaintiffs choose to prove their
case under this theory, the employer must prove that it would
have made the same decision in the absence of the impermis-
sible factor (“same decision defense”). See 42 U.S.C.
§ 2000e-5(g)(2)(B). If the employer does, the plaintiffs may
still prevail but with limited remedies. Thus, under the 1991
Act, if the plaintiffs pursue their case under a “mixed motive”
theory, a defendant may present a “same decision defense.”
[22] Plaintiffs have the choice to proceed under a “single
motive” theory or a “mixed motive” theory; Wal-Mart cannot
force Plaintiffs to proceed under a “mixed motive” theory
simply because it wishes to present a “same decision
1374 DUKES v. WAL-MART, INC.
defense.” Bogle v. McClure, 332 F.3d 1347, 1357 (11th Cir.
2003). In this case, Plaintiffs have elected to prove the “single
motive” theory. This means that Wal-Mart is not entitled to
present a “same decision defense” because such a defense at
the remedy stage applies only where the conduct was the
result of “mixed motives.” 42 U.S.C. § 2000e-5(g)(2)(B).17
Accordingly, the Civil Rights Act of 1991 does not preclude
use of the class action format in this case.
E. Class Actions Involving Punitive Damages Do Not
Necessarily Require Individualized Hearings
Wal-Mart contends that 42 U.S.C. § 1981a(b)(1), which
permits punitive damages for “malice [or] reckless indiffer-
ence to the federally protected rights of an aggrieved individ-
ual,” requires individualized remedy proceedings.
Section 1981a(b)(1) states that a plaintiff may recover puni-
tive damages if he or she “demonstrates that the respondent
engaged in a discriminatory practice or discriminatory prac-
tices with malice or with reckless indifference to the federally
protected rights of an aggrieved individual.” Wal-Mart con-
tends that use of the singular “aggrieved individual” means
that claims must be pursued and defended individually.
[23] However, “aggrieved person” or “person aggrieved” is
used throughout the statute to refer to more than one person.
See 42 U.S.C. § 2000e-5(b), (c), (f)(1), (g)(1). Further, statu-
tory reference to an “individual” has never before been read
to preclude class format. See Califano v. Yamasaki, 422 U.S.
682, 698-99 (1979) (holding that language in the Social
Security Act authorizing suit by “individual” did not preclude
17
Wal-Mart also contends that the 1991 Act mandates that a district
court hold individualized hearings where a defendant pursues a “mixed
motive” defense. However, Wal-Mart offers no support for this theory.
Nor does caselaw or legislative history suggest that individualized hear-
ings are required where plaintiffs pursue a “mixed motive” theory.
Regardless, this issue is irrelevant to the case at hand because, as dis-
cussed above, Plaintiffs are proceeding under the “single motive” theory.
DUKES v. WAL-MART, INC. 1375
class relief). Thus, § 1981a(b)(1) does not require individual-
ized remedy proceedings nor does it preclude use of the class
action format in this case.
F. Due Process Does Not Require Individualized
Hearings
Wal-Mart maintains that its due process rights will be vio-
lated if the district court is allowed to apply a statistical for-
mula at the remedy stage. In essence, Wal-Mart contends that
an ordinary defendant is entitled to hearings so that he or she
may have the opportunity to review and rebut individualized
claims but that, because of Wal-Mart’s size and the size of the
class, it is deprived of opportunities afforded other defen-
dants. Wal-Mart contends that individualized hearings, and
not the analysis of aggregated data, are necessary to preserve
its due process rights. We disagree.
“[The] aggregate computation of class monetary relief is
lawful and proper. Challenges that such aggregate proof
affects substantive law and otherwise violates the defendant’s
due process or jury trial rights to contest each member’s claim
individually, will not withstand analysis.” 3 Newberg on
Class Actions § 10.05 at 483. Rather, “[f]ar from being vul-
nerable to constitutional or statutory authorization challenges,
aggregate proof of the defendant’s monetary liability pro-
motes the deterrence objectives of the substantive laws under-
lying the class actions and promotes the economy and judicial
access for small claims objectives of Rule 23.” Id. at 487.18
18
Wal-Mart’s assertions that the use of statistical formulas deprives it of
any defense is also without merit. For example, at the first post-class certi-
fication stage — the liability stage — Wal-Mart can: (1) present evidence
that it did not engage in discrimination and (2) challenge Plaintiff’s statis-
tical model for liability. Wal-Mart is free to argue that business necessity
justified its use of subjective pay and promotions criteria and/or contest
the factors and criteria considered in determining whether there is a pat-
tern and practice of discrimination. Further, at the remedial stage, Wal-
Mart can argue and present evidence pertaining to the appropriate model
for relief.
1376 DUKES v. WAL-MART, INC.
Relying on State Farm Automobile Insurance Co. v. Camp-
bell, 538 U.S. 408 (2003), Wal-Mart argues that a punitive
damages award in the absence of individualized hearings
would violate its due process rights because it might punish
legal conduct and award damages to non-victims. However,
State Farm is readily distinguishable from this case. State
Farm involved an action brought on behalf of one individual
under state law. See id. Moreover, as Plaintiffs note, there is
no danger in this case that Wal-Mart will be punished for con-
duct that is legal where it occurred, because “Title VII is a
federal law which applies to every Wal-Mart store in the
United States.”
Further, in its order, the district court imposed several due
process protections to prevent unjust enrichment by non-
injured plaintiffs. First, the order specifies that any punitive
damages award will be “based solely on evidence of conduct
that was directed toward the class.” Dukes I, 222 F.R.D. at
172. This ensures that the punitive damage award will be cali-
brated to the specific harm suffered by the plaintiff class. In
addition, the order states that recovery of punitive damages
will be limited “to those class members who actually recover
an award of lost pay, and thus can demonstrate that they were
in fact personally harmed by the defendant’s conduct.” Id.
Finally, the order requires that allocations of punitive dam-
ages to individual class members must be “in reasonable pro-
portion to individual lost pay awards.” Id. Thus, in the event
that Wal-Mart faces a punitive damages award, the district
court took — and presumably will continue to take — suffi-
cient steps to ensure that any award will comply with due pro-
cess.19
19
The district court speculated that a Special Master might assist the
court by developing and employing a formula to compute damages at the
remedy stage. See Dukes I, 222 F.R.D. at 176, 178. Wal-Mart contends
that its Seventh Amendment rights to a jury trial will be violated if the dis-
trict court assigns this task to a Special Master. However, neither Plaintiffs
nor the district court has suggested that a Special Master would be substi-
tuted for the jury as the fact-finder. Further, as Plaintiffs note, any for-
mula, whether prepared by a Special Master or the parties’ experts, can be
subjected to a jury’s review. See, e.g., Hilao v. Estate of Marcos, 103 F.3d
767, 786 (9th Cir. 1996).
DUKES v. WAL-MART, INC. 1377
[24] Caselaw supports the district court’s findings that sub-
stantive law does not mandate individualized hearings and
that Wal-Mart’s Constitutional rights will not be violated if
statistical formulas are employed to fashion the appropriate
remedy. Therefore, we reject Wal-Mart’s contention that “the
district court’s repeated disregard for governing substantive
law compels reversal,” and find that the district court did not
abuse its discretion when it found that the class size does not
deprive Wal-Mart of its opportunity to present a defense.
IV. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION
WHEN IT LIMITED THE BACKPAY FOR PROMOTIONS
REMEDY TO PLAINTIFFS WITH OBJECTIVE DATA
Plaintiffs cross-appealed the district court’s order, contend-
ing that it erred in limiting a promotion backpay remedy “to
that subset of the class for whom objective applicant data
exists.” Dukes I, 222 F.R.D. at 183. As the district court
explained, “While proof of a pattern of discrimination estab-
lishes a presumption in favor of class members, it does not in
and of itself entitle each class member to back (or front) pay.”
Id. at 175 (citing Pettway I, 494 F.2d at 259).
A class is defined not only by the members it comprises,
but also by the particular kinds of relief to which those mem-
bers are entitled. The district court determined that Plaintiffs
could not seek promotional back pay as a class, but only as
individual claimants. In fact, only those class members who
can make a showing that they were either actually harmed by
the discriminatory policy or were at least “a potential victim
of the proved discrimination” are eligible to recover an award
of lost pay. Int’l Bhd. of Teamsters, 431 U.S. at 362; Robin-
son, 267 F.3d at 159. Plaintiffs must prove that they were both
qualified and interested in obtaining the promotion. See
Domingo, 727 F.2d at 1445 (recognizing that to be eligible for
backpay, plaintiffs must prove that they applied for a promo-
tion or would have applied if not for the employer’s discrimi-
natory practices).
1378 DUKES v. WAL-MART, INC.
Wal-Mart’s corporate records may provide substantial
objective information about class members’ qualifications for
promotions, but there is no suggestion that such records dem-
onstrate or quantify Plaintiffs’ interest. See Dukes I, 222
F.R.D. at 180. Thus, the district court reasoned, individual
hearings would be necessary to determine which class mem-
bers had an interest in promotions. See id.
Conceding that individualized hearings would be unman-
ageable, Plaintiffs suggest that this court overlook the district
court’s interest requirement. However, there is no support for
this proposition. Rather, courts have recognized that a class
member may be qualified for a promotion but not interested
in taking advantage of that opportunity. See, e.g., Int’l Bhd. of
Teamsters, 431 U.S. at 369 (noting that “the desirability of [a
promotion] is not so self-evident as to warrant a conclusion
that all employees would prefer [the promotion] if given a
free choice”); McKenzie, 684 F.2d at 76 (“The benefits ille-
gally denied to the plaintiffs as a class were opportunities nei-
ther automatically sought nor automatically bestowed. . . . [It
is not] reasonable to assume that all journeymen would wish
to assume supervisory responsibilities”). Although Plaintiffs
are correct that neither Teamsters nor McKenzie definitively
requires individualized proof of interest at the remedy stage,
Plaintiffs fail to present any case where a court states that
individualized proof of interest is irrelevant.
[25] We recognize that awarding backpay relief only to
those plaintiffs who can demonstrate an interest in a promo-
tion may deny relief to those class members exposed to the
greatest opportunities for discrimination in promotions, Albe-
marle Paper Co. v. Moody, 422 U.S. 405, 421 (1975), and in
turn fail to provide the class with “the most complete relief
possible,” id. However, in light of relevant case law, the dis-
trict court acted reasonably when it concluded that class mem-
bers must be able to prove with objective data an interest in
a promotion in order to be eligible to collect certain damages.
See Smilow, 323 F.3d at 40 (“Common issues predominate
DUKES v. WAL-MART, INC. 1379
where individual factual determinations can be accomplished
using computer records, clerical assistance, and objective
criteria — thus rendering unnecessary an evidentiary hearing
on each claim.”). Therefore, we find that the district court did
not abuse its discretion when it concluded that backpay for
promotions may be limited to those plaintiffs for whom actual
proof of qualification and interest exists.
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 that Plaintiffs have met
the pleading requirements of Rule 23. 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 backpay for
promotions may be limited to those Plaintiffs for whom proof
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. Class action certification violates the
Rule 23 class action certification criteria and deprives Wal-
Mart of due process of law.
1380 DUKES v. WAL-MART, INC.
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.”1 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-
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.”2
That need does not pertain here, because the substantial value
of sex discrimination claims, the availability of lawyers on
contingent fee, and statutory attorney’s fees awards3 “elimi-
nate financial barriers that might make individual lawsuits
unlikely or infeasible.”4
While a class action can have the virtue of assuring equal
justice to all class members, it can also have the vice of bind-
ing them to something less than justice. This case poses a con-
siderable risk of enriching undeserving class members and
counsel, but depriving thousands of women actually injured
by sex discrimination of their just due. Under Rule 23, the
judgment “shall include” all class members, “whether or not
favorable to the class.”5 That means that if the class loses, all
the women presently or formerly employed by Wal-Mart lose.
A lawyer representing a class is in practical effect a lawyer
without a client who can make the lawyer serve the client’s
interest. A settlement serving the lawyer’s interests may dis-
serve the interests of the class. These lawyers without clients
must obtain judicial approval of a settlement, but often that
1
Califano v. Yamasaki, 442 U.S. 682, 700-701 (1979).
2
Amchem Prods. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace
v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)).
3
42 U.S.C. § 2000e-5(k).
4
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420 (5th Cir. 1998).
5
Fed. R. Civ. P. 23(c)(3).
DUKES v. WAL-MART, INC. 1381
works poorly, because a class action settlement is “a bargain
proffered for its approval without benefit of adversarial investi-
gation.”6 The class action device also threatens unfairness to
the defendant. A lawsuit, like surgery, cannot be risk-free.
Defendants are ordinarily wise to settle for an amount equal
to the risk of losing multiplied by the potential loss. When the
potential loss is stratospheric, a rational defendant will settle
even the most unjust claim.
Class actions have four “threshold requirements”: (1)
numerosity; (2) commonality; (3) typicality; and (4) adequacy
of representation.7 While Rule 23 does not authorize courts
considering class certification to evaluate the merits of a
plaintiff’s underlying claim,8 it does require “rigorous analy-
sis” to ensure “actual, not presumed, conformance” with the
criteria for class certification.9 As the Supreme Court recog-
nized in Falcon, “the class determination generally involves
considerations that are enmeshed in the factual and legal
issues comprising the plaintiff’s cause of action.”10 Accord-
ingly, as the Second Circuit recently held in In re IPO, a dis-
trict judge considering class certification must make a
“definitive assessment of Rule 23 requirements, notwithstand-
ing their overlap with merits issues” and “must receive
enough evidence, by affidavits, documents or testimony, to be
satisfied that each Rule 23 requirement has been met.”11 The
relevance of a commonality depends on the proposition at
6
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 621 (1996) (affirm-
ing denial of class certification for purpose of asbestos claims settlement).
7
Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1996); Staton
v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003).
8
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974).
9
General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160-
61 (1982).
10
General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160
(1982) (internal quotation marks omitted).
11
Miles v. Merrill Lynch & Co. (In re Initial Pub. Offering Sec. Litig.),
471 F.3d 24, 51-52 (2d Cir. 2006).
1382 DUKES v. WAL-MART, INC.
issue. “All men are mortal” answers the question whether
Socrates is mortal, but not who won the World Series. This
class has numerosity to spare—1.5 million women—but none
of the other three requirements.
This class lacks “commonality” because there are no “ques-
tions of law or fact common to the class.”12 The only common
question Plaintiffs identify with any precision is whether Wal-
Mart’s promotion criteria are “excessively subjective.” That is
not a commonality with any clear relationship to sex discrimi-
nation in pay, promotions, or terminations. Plaintiffs’ sociolo-
gist claims subjectivity makes the criteria “vulnerable” to sex
discrimination. But the Supreme Court has already held that
“leaving promotion decisions to the unchecked discretion of
lower level supervisors should itself raise no inference of dis-
criminatory conduct”13 because it is “self-evident” that stan-
dardized testing cannot sort out who ought to be a manager.14
“Vulnerability” to sex discrimination is not sex discrimina-
tion.
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, “It 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.”15 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.
12
Fed. R. Civ. P. 23(a)(2).
13
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988).
14
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 999 (1988).
15
Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992 (1988).
DUKES v. WAL-MART, INC. 1383
This class lacks “typicality” because “the claims or
defenses of the representative parties” are not “typical of the
claims or defenses of the class.”16 Plaintiffs must show “the
existence of a class of persons who have suffered the same
injury” as themselves.17 There are seven named plaintiffs,
from different stores.18 Here they are, with the gist of the
claims they make in the complaint:
Betty Dukes African American female promoted to
manager, then demoted in retaliation for
discrimination complaints. Did not apply
for several slots filled by African Ameri-
can females, African American males,
Hispanic female, Filipino male, and
Caucasian male because she was dis-
couraged 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 differ-
ent department manager position. But a
“Caucasian male,” a “Latina,” and a
“Caucasian female” got other manage-
ment positions she sought and she got
paid less than a “Caucasian male” with
less seniority.
16
Fed. R. Civ. P. 23(a)(3). Amchem Products, Inc. v. Windsor, 521 U.S.
591, 613 (1996).
17
Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157 (1982).
18
I do not know why the district court and the majority say there are six.
1384 DUKES v. WAL-MART, INC.
Chris Kwapnoski Sought management positions given to
less qualified men. Manager made sexist
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 never
promoted, even though “qualified.”
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 claims or defenses are
“typical of the claims or defenses of the class.”19 They are not.
Some plaintiffs work at Wal-Mart, some do not. Some were
promoted to management, some were not. Some claim sex
discrimination, some claim mixed motive race and sex dis-
crimination, some appear to claim race discrimination, some
claim retaliation, and some appear to claim unfairness but not
discrimination. Some plead a prima facie case, some do not.
Some are vulnerable to defenses like misconduct, some are
not. They worked at different stores and complain of different
actions taken by different managers. Whatever the “vulnera-
bility” to sex discrimination of the “corporate culture” of this
19
Fed. R. Civ. P. 23(a)(3). Amchem Products, Inc. v. Windsor, 521 U.S.
591, 613 (1996).
DUKES v. WAL-MART, INC. 1385
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.
Whether these seven named plaintiffs “will fairly and ade-
quately protect the interests of the class,”20 gets no serious
attention, no doubt because everyone assumes that the law-
yers will manage the case without much interference from
their supposed clients. But if the named plaintiffs were really
zealously represented, as they are entitled to be, their interests
would diverge and require separate counsel. Women who still
work at Wal-Mart have an interest in the terms of an injunc-
tion. But an injunction or declaratory judgment cannot benefit
women who have quit or been fired and do not want to return.
Those who are managers have interests different from those
who have not been promoted. Those who face defenses, such
as whether they were fired for stealing time, may have a
greater interest in a compromise settlement than those whose
records are unblemished. None of these plaintiffs adequately
represent women at Wal-Mart who have been repeatedly pro-
moted and are company favorites at high levels. Those
women have an interest in broad management discretion in
order to maximize company success and avoid burdening high
performing women with the stigma of being dangerous to the
company.
This class was certified under Rule 23(b)(2), which
requires that declaratory and injunctive relief “predominate.”
But these forms of relief cannot even benefit class members
who no longer work for Wal-Mart and have no intention of
returning, let alone “predominate.” Those class members lack
standing to sue for declaratory and injunctive relief. They are
like the summer temporary employee who sued after leaving
her state job in Arizonans for Official English v. Arizona.21
20
Fed. R. Civ. P. 23(b)(4).
21
Arizonans for Official English v. Ariz., 520 U.S. 43, 67 (1997).
1386 DUKES v. WAL-MART, INC.
Although we accorded her standing, the same mistake we
make here,22 the Supreme Court unanimously disagreed.
The majority argues that former employees have standing
to seek injunctive relief because “it is reasonable that plain-
tiffs who feel that their rights have been violated by an
employers behavior would want that behavior, and the injus-
tice it perpetuates, to end.”23 No doubt. And no doubt many
people, some of whom have never set foot in a Wal-Mart, as
an employee or even a customer, also feel that unjust behavior
ought to end. But “the psychological consequence presumably
produced by observation of conduct with which one disagrees
. . . is not an injury sufficient to confer standing under Art. III.”24
It is hard to say that injunctive and declaratory relief “pre-
dominate” even for those still employed who might benefit
from an injunction, when they seek billions of dollars in puni-
tive damages. Maybe that kind of money is “incidental” to
those not paying it or getting it, but to most people billions of
dollars would indeed “predominate.” What non-management
employee would care much about how the district court told
Wal-Mart to run its personnel system after getting enough
cash to quit?
The punitive damages claim poses a constitutional barrier
to class certification. The district court devised a scheme
under which an “expert or special master” using an unspeci-
fied formula will allocate back and front pay to the class mem-
bers.25 Plaintiffs waive other consequential compensatory
damages. But before the “expert or special master” allocates
pay, the jury will decide upon a lump sum amount of punitive
damages. The special master will then decide on a formula to
22
Yniguez v. Arizona, 939 F.2d 727, 734 (9th Cir. 1991).
23
Maj. at 1362-63.
24
Valley Forge Christian College v. Americans United for Separation of
Church & State, 454 U.S. 464, 485 (1982).
25
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 180 (D. Cal. 2004).
DUKES v. WAL-MART, INC. 1387
divide up all the money. There will never be an adjudication,
by the jury or the special master, of whether any individual
woman was injured by sex discrimination.
The scheme the majority approves cannot satisfy due pro-
cess, because (1) there will never be an adjudication of com-
pensatory damages, and (2) the allocation of back and front
pay will follow the jury determination of punitive damages.
As the Supreme Court held in State Farm, “few awards
exceeding a single-digit ratio between punitive and compen-
satory damages, to a significant degree, will satisfy due pro-
cess.”26 “Thus, punitive damages must be determined after
proof of liability to individual plaintiffs at the second stage of
a pattern or practice case, not upon the mere finding of gen-
eral liability to the class at the first stage.”27
The Civil Rights Act of 1991, and the Due Process Clause,
require more individual justice than Wal-Mart will receive.
“[I]n a multi-plaintiff, multi-defendant action, an approach
that compares each plaintiff’s individual compensatory dam-
ages with the punitive damages awards against each defendant
more accurately reflects the true relationship between the
harm for which a particular defendant is responsible, and the
punitive damages assessed against that defendant.”28 The Civil
Rights Act expressly prohibits orders requiring the reinstate-
ment, promotion, or payment of back pay to anyone injured
“for any reason other than discrimination.”29 The district
court’s class certification scheme requires what the Civil
26
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425
(2003). 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).
27
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 417-18 (5th Cir.
1998) (internal citation omitted).
28
Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coali-
tion of Life Activists, 422 F.3d 949, 961 (9th Cir. 2005).
29
42 U.S.C. § 2000e-5(g)(2)(A).
1388 DUKES v. WAL-MART, INC.
Rights Act prohibits, the district court having decided “that
this ‘rough justice’ is better than the alternative of no remedy
at all for any class member.”30
The district court calls this class certification “historic,”31 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 threatens the rights of
women injured by sex discrimination. And it threatens Wal-
Mart’s rights. The district court’s formula approach to divid-
ing up punitive 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.
This is “rough justice” indeed. “Rough,” anyway. Since when
were the district courts converted into administrative agencies
and empowered to ignore individual justice?
30
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 177 (D. Cal. 2004).
31
Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 142 (D. Cal. 2004).