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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 BETTY DUKES; PATRICIA SURGESON;
EDITH ARANA; KAREN WILLIAMSON; DEBORAH GUNTER; CHRISTINE KWAPNOSKI; CLEO PAGE, on behalf of themselves and all others
 similarly situated, Plaintiffs-Appellees/CrossAppellants,
v.
WAL-MART STORES, INC., Defendant-Appellant/Cross-
 Appellee.

Nos. 04-16688 04-16720
D.C. No. CV-01-02252-MJJ
OPINION

Appeals from the United States District Court for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Argued and Submitted March 24, 2009—San Francisco, California
Filed April 26, 2010
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt, Pamela Ann Rymer, Michael Daly Hawkins,
Barry G. Silverman, Susan P. Graber, Raymond C. Fisher, Richard A. Paez, Marsha S. Berzon, Carlos T. Bea and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Hawkins; Concurrence by Judge Graber;
Dissent by Judge Ikuta; Dissent by Chief Judge Kozinski
6137

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COUNSEL
Theodore J. Boutrous, Jr., Gibson, Dunn & Crutcher, Los Angeles, California, for the defendant/appellant/crossappellee.
Brad Seligman, The Impact Fund, Berkeley, California, for the plaintiffs/appellees/cross-appellants.

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Joel E. Krischer, Latham & Watkins, LLP, Los Angeles, California, on behalf of amicus curiae Employers Group.

Rae T. Vann, Norris, Tysse, Lampley & Lakis, LLP, Washington, D.C., on behalf of amicus curiae Equal Employment Advisory Council.

John H. Beisner, O’Melveny & Myers, LLP, Washington, D.C., on behalf of amicus curiae Chamber of Commerce of the United States.

Daniel J. Popeo, Washington Legal Foundation, Washington, D.C., on behalf of amicus curiae Washington Legal Foundation.

Laura C. Fentonmiller, Constantine Cannon LLP, Washington, D.C., on behalf of amicus curiae The Retail Industry Leaders Association.

Pamela Coukos, Mehri & Skalet, Washington, D.C., on behalf of amici curiae The National Employment Lawyers Association, The National Partnership for Women & Families, and The National Women’s Law Center.

Daniel B. Kohrman, AARP Foundation Litigation, Washington, D.C., on behalf of amicus curiae AARP.

Bill Lann Lee, Lewis, Feinberg, Lee, Renaker & Jackson, P.C., Oakland, California, on behalf of amici curiae Consumers Union, National Consumer Law Center, Center for Constitutional Rights, and Communities for a Better Environment.

Audrey J. Wiggins, Lawyers’ Committee for Civil Rights Under Law, Washington, D.C., on behalf of amici curiae Lawyers’ Committee for Civil Rights Under Law, Asian American Justice Center, Asian Pacific American Legal Center of Southern California, Legal Aid Society-Employment Law Center, Mexican American Legal Defense & Educational

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Fund, NAACP Legal Defense & Educational Fund, Inc., National Association for the Advancement of Colored People, Public Advocates, Inc. & Women Employed.

David R. Bruce, Santa Rose, California, on behalf of amicus curiae California Employment Law Council.

James M. Beck, Dechert LLP, Philadelphia, Pennsylvania, on behalf of amicus curiae Product Liability Advisory Council, Inc.

Mark Etheredge Burton, Hersh & Hersh, San Francisco, California, on behalf of amicus curiae U.S. Women’s Chamber of Commerce.

Joe R. Whatley, Whatley, Drake & Kallas, New York, New York, on behalf of amicus curiae Public Justice, P.C.

Barbara L. Sloan, Equal Employment Opportunity Commission, Office of the General Counsel, Washington, D.C., on behalf of amicus curiae Equal Employment Opportunity Commission.

OPINION
HAWKINS, Circuit Judge:
Plaintiffs allege that Wal-Mart, Inc., discriminates against women in violation of Title VII of the Civil Rights Act of 1964. After detailed briefing and hearing, the district court certified a class encompassing all women employed by WalMart at any time after December 26, 1998, and encompassing all Plaintiffs’ claims for injunctive relief, declaratory relief, and back pay, while creating a separate opt-out class encompassing the same employees for punitive damages. We affirm1
1We have jurisdiction under 28 U.S.C. § 1292(e).

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the district court’s certification of a Federal Rule of Civil Procedure 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay. With respect to the claims for punitive damages, we remand so that the district court may consider whether to certify the class under Rule 23(b)(2) or (b)(3). We also remand with respect to the claims of putative class members who no longer worked for Wal-Mart when the complaint was filed so that the district court may consider whether to certify an additional class or classes under Rule 23(b)(3).

BACKGROUND

Plaintiffs’ Third Amended Complaint, 2 brought on behalf of certain named plaintiffs and those similarly situated, asserts claims against Wal-Mart for sex discrimination under Title VII of the 1964 Civil Rights Act. Plaintiffs allege that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive fewer—and wait longer for—promotions to in-store management positions than men. Plaintiffs contend that Wal-Mart’s strong, 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 sought to certify a nationwide class of women who have been subjected to these allegedly discriminatory pay and promotion policies. The proposed class consists of women employed in a range of Wal-Mart positions, from part-time entry-level hourly employees to salaried managers. The class seeks injunctive and declaratory relief, back pay, and punitive damages, but not traditional “compensatory”

2The action was originally filed on June, 21, 2004.

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damages. Plaintiffs proposed that the district court certify the following class pursuant to Rule 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., 222 F.R.D. 137, 141-42 (N.D. Cal. 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, including the size of the putative class, involving women employees at Wal-Mart’s 3,400 stores in 41 regions. The court acknowledged Wal-Mart’s concerns but noted that, while the class size was large, the issues were not unusual.3

3Ten times the dissent points out the large class size, referring to the “1.5 million” women alleging discrimination as a reason to reject certification. However, at oral argument, counsel for Wal-Mart conceded that if past employees are excluded the class to be certified would be less than 1.5 million, perhaps two-thirds less than the figure the dissent cites. Further, the dissent emphasizes that this is the largest class that we have ever certified “based on a small number of incidents. ” Dissent at 6249 n.11 (all references in this Opinion to the dissent refer to Judge Ikuta’s dissent). As an initial matter, we do not find 120 claims of illegal sex discrimination a small number. Nevertheless, given that the class is suing by far the largest employer in the United States, we are unsurprised that Plaintiffs are seeking to represent such a large class. Of course, this should not change the analysis the Supreme Court required in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 157-59 (1982), nor should it necessitate that we take an even harder look at the merits, essentially conducting a trial, as the dissent proposes.

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The district court issued an eighty-four-page order granting in part and denying in part Plaintiffs’ motion for class certification. See id. at 187-88. With respect to Plaintiffs’ claims for equal pay, the district court granted Plaintiffs’ certification motion as to issues of alleged discrimination and all forms of requested relief. With respect to Plaintiffs’ promotion claim, the court’s holding was mixed. The court certified the proposed class with respect to issues of alleged discrimination (including liability for punitive damages, as well as injunctive and declaratory relief); however, the court rejected the proposed class with respect to the request for back pay, determining that data relating to the challenged promotions were not available for all class members. The court also exercised its discretion to provide for notice and an opportunity for employees to opt-out of the punitive damages portion of the class.

THE APPEAL

Pursuant to Rule 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 recognize that Plaintiffs’ claims for monetary relief predominated over their claims for injunctive or declaratory relief. Plaintiffs cross-appealed from the district court’s limitation of back pay relief for many of Plaintiffs’ promotion claims.

DISCUSSION

I. STANDARD AND SCOPE OF REVIEW

A district court’s decision regarding class certification is not only reviewed for abuse of discretion, Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir. 2003), but also subject to

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“very limited” review, to 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) (internal quotation marks omitted). See also Millowitz v. Citigroup Global Mkts., Inc. (In re Salomon Analyst Metromedia Litig.), 544 F.3d 474, 480 (2d Cir. 2008) ( “When reviewing a grant of class certification, we accord the district court noticeably more deference than when we review a denial of class certification.”); Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005) ( “Abuse of discretion is a highly deferential standard, under which the appellate court cannot substitute its view of what constitutes substantial justification for that of the district court; rather, the review is limited to assuring that the district court’s determination has a basis in reason. ” (internal quotation marks 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.’ ” (quoting Marisol A. v. Giuliani, 126 F.3d 372, 375 (2d Cir. 1997) (per curiam))); Doninger v. Pac. Nw. Bell, Inc. , 564 F.2d 1304, 1309 (9th Cir. 1977) (stating that “the judgment of the trial court should be given the greatest respect and the broadest discretion ” (internal quotation marks omitted)).

A court abuses its discretion if its decision is premised on legal error. Hawkins v. Comparet-Cassani , 251 F.3d 1230, 1237 (9th Cir. 2001). Moreover, the district court’s factual findings as to the applicability of Rule 23 criteria are entitled to the traditional deference given such determinations. See Local Joint Executive Bd. of Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc. , 244 F.3d 1152, 1161 (9th Cir. 2001).

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

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court.” Armstrong, 275 F.3d at 871 n.28. If evidence not available at the time of certification disproves Plaintiffs’ contentions that common issues predominate, the district court has the authority to modify or even decertify the class, Gen. Tel. Co. of Sw. v. Falcon , 457 U.S. 147, 160 (1982) ( “Even after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation.”), or use a variety of management devices to address the individualized issues that have arisen, see 2 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 4.26 (4th ed. 2002).4

Our review is limited to whether the district court correctly selected and applied Rule 23 criteria. Bogus v. Am. Speech & Hearing Ass’n, 582 F.2d 277, 289 (3d Cir. 1978); see also 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.

II. STANDARDS FOR CLASS CERTIFICATION UNDER 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;

4As the district court acknowledged, Dukes, 222 F.R.D. at 143, although federal courts are no longer permitted to engage in “conditional certification,” see Fed. R. Civ. P. 23 advisory committee’s note to 2003 amends., district courts retain the authority to amend or decertify a class if, based on information not available or circumstances not anticipated when the class was certified, the court finds that either is warranted.

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(2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.

Fed. R. Civ. P. 23(a).

[2] The district court must also find that at least one of the following three conditions is satisfied: (1) the prosecution of separate actions would create a risk of: (a) inconsistent or varying adjudications, or (b) individual adjudications dispositive 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) questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. See id. 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. Zinser v. Accufix Research Inst., Inc. , 253 F.3d 1180, 1186 (9th Cir.), amended by 273 F.3d 1266 (9th Cir. 2001).

[3] The parties vigorously contest the standards governing the district court in finding the Rule 23 requirements satisfied. For a number of reasons, we must clarify this standard. First, the parties’ briefs demonstrate the degree of debate over the standard in this circuit. Second, a number of recent cases in other circuits have endeavored to clarify the standard, and we find it prudent to follow suit given evidence of confusion. Third, it is only very recently that any case in this circuit has interpreted language under the standard that drifts away from our clear case law, and we write to clarify our precedent. Fourth, we are not aware of a circuit that has detailed the

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issue in the Title VII context, and the typical situation presented in such a case implicates significant differences in the doctrine that require explanation to reach a resolution here and in future Title VII class action certification decisions.

A. Supreme Court Authority

The Supreme Court has provided clear, if sometimes misunderstood, guidance on the issue of what standards a district court applies when deciding whether to certify a class.

The leading case describing these standards is Falcon, where the plaintiff successfully certified a class of MexicanAmericans claiming racial discrimination. After a full trial on the merits, however, the district court’s findings distinguishing the named representative’s claims from those of the class called the propriety of continued class certification into question.5 On appeal, the Supreme Court held that because of the district court’s findings at trial, Falcon’s “complaint provided an insufficient basis for concluding that the adjudication of his claim of discrimination in promotion would require the decision of any common question concerning the failure of [General Telephone] to hire more Mexican-Americans.” Id. at 158.

[4] The Court described the implications of its holding, noting that “[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff’s claim,

5After a trial, the district court in Falcon made converse findings regarding Falcon, who was the named plaintiff, and the class he sought to represent. The district court found that the defendant, General Telephone Company of the Southwest, had not discriminated against Falcon when it hired him, but had discriminated against him when it failed to promote him. Falcon, 457 U.S. at 152. But the district court also found the defendant had not discriminated against Mexican-Americans generally in promotion decisions, but had discriminated against them in hiring. Id. This disconnect created a potential typicality problem under Rule 23(a)(3).

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and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Id. at 160. In either case, the Court held, “a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. ” Id. at 161. In conducting this rigorous analysis, the Court explained that “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action. ” Id. at 160 (internal quotation marks omitted).

Illustrating further, the Court approvingly cited Judge Godbold’s concurring opinion in the Fifth Circuit case that had announced the “across-the-board” rule the Court was reviewing in Falcon. Judge Godbold’s concurrence addressed the role of the district court in understanding the likely course of the litigation, and the Supreme Court praised his focus on “the need for more precise pleadings. ” Id. at 160 (internal quotation marks omitted). The Court approved of his statement that “ ‘without reasonable specificity the court cannot define the class, cannot determine whether the representation is adequate, and the employer does not know how to defend.’ ” Id. at 161 (quoting Johnson v. Ga. Highway Express, Inc. , 417 F.2d 1122, 1126 (5th Cir. 1969) (Godbold, J., specially concurring).

[5] Falcon thus provides relatively straightforward guidance. When considering class certification under Rule 23, district courts are not only at liberty to, but must, perform a rigorous analysis to ensure that the prerequisites of Rule 23(a) have been satisfied. See id. at 160-61. It does not mean that a district court must conduct a full-blown trial on the merits prior to certification. A district court’s analysis will often, though not always, require looking behind the pleadings, even to issues overlapping with the merits of the underlying claims. See id. As we describe in more detail below, every circuit to have considered this issue, including our own previous deci-

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sions, has reached essentially the same conclusion: Falcon’s central command requires district courts to ensure that Rule 23 requirements are actually met, not simply presumed from the pleadings.

We also agree with the Second Circuit’s recent decision in Miles v. Merrill Lynch & Co. (In re Initial Pub. Offerings Securities Litigation) (“IPO”), which explained that, to the extent lower courts have evidenced confusion regarding the Rule 23 standard after Falcon, this confusion has existed because those courts have misread a Supreme Court statement made eight years before the Court handed down Falcon. See 471 F.3d 24, 33-34 (2d Cir. 2006). Specifically, courts have misunderstood Eisen v. Carlisle & Jacquelin , in which the Supreme Court stated, “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 maintained as a class action.” 417 U.S. 156, 177 (1974). “This statement has led some courts to think that in determining whether any Rule 23 requirement is met, a judge may not consider any aspect of the merits . . . . ” IPO, 471 F.3d at 33. It has “led other courts to think that a judge may not do so at least with respect to a prerequisite of Rule 23 that overlaps with an aspect of the merits of the case. ” Id.

As the IPO court recognized, the distinguishing features of Falcon and Eisen are the purposes for which the certifying court is using the underlying facts — whether to address a merits issue unnecessarily or to determine whether, for example, the plaintiffs have demonstrated questions of law or fact common to their proposed class. See IPO, 471 F.3d at 32-35. An easy way to understand this distinction is to analogize to a familiar dispute over the admissibility of alleged hearsay evidence. Offered for the truth of the matter asserted, an outof-court statement by someone not testifying is, of course, inadmissible hearsay. However, that same evidence used to impeach a witness may be properly admitted. So, too, with

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inquiries into facts overlapping with merits issues in the Rule 23 context. It is whether courts are using the facts to probe the plaintiffs’ claims of compliance with Rule 23, or to hear either parties’ claims directed to stand-alone merits issues, that renders a court’s use of the facts proper or improper. Courts have thus strayed from Falcon when they have myopically invoked Eisen to avoid considering facts properly relevant to the Rule 23 determination because the facts happen to be relevant to the later merits inquiry as well.

B. Case Law in Other Circuits

Like our decision today, and in part because of courts’ misunderstanding of Eisen, many of our sister circuits have recently been called upon to clarify the standard that a district court applies when deciding whether to certify a class under Rule 23.

Though IPO is the most notable of these decisions, other courts often trace the explanatory effort back to the Seventh Circuit’s decision in Szabo v. Bridgeport Machines, Inc ., 249 F.3d 672 (7th Cir. 2001). In Szabo, the court rejected a nationwide products liability class because the class was generally unsuitable for class-wide resolution because of choice of law problems on the state breach-of-warranty and fraud claims. Id. at 674. The Seventh Circuit also found that the district court below had “certified the class without resolving factual and legal disputes that strongly influence the wisdom of class treatment” because the district court had stated that the plaintiffs’ “allegations in the complaint are accepted as true for purposes of the class motion. ” Id. at 675. Analogizing to the preliminary jurisdictional inquiries that district courts routinely make under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2), the court explained that, “[b]efore deciding whether to allow a case to proceed as a class action, therefore, a judge should make whatever factual and legal inquiries are necessary under Rule 23. ” Id. at 676.

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The Second Circuit’s decision in IPO agreed with Szabo, providing what is now the leading case on the extent to which a district court must resolve Rule 23 issues that overlap with the merits of the case. IPO held that factual disputes concerning each of the Rule 23 factors must be analyzed and resolved. 471 F.3d at 41. This is a similar holding to our previous explanation—discussed in more detail below—that a district court must make “determinations” that the prerequisites of Rule 23(a) have been satisfied before it certifies a class, “which may require review of the same facts and the same law presented by review of the merits. ” Falcon, 457 U.S. at 161; Blackie v. Barrack, 524 F.2d 891, 897 (9th Cir. 1975). IPO explained that “the obligation to make such determinations is not lessened by overlap between a Rule 23 requirement and a merits issue. ” 471 F.3d at 41. IPO expressly rejected the Second Circuit’s approach in Caridad v. Metro-North Commuter Railroad , 191 F.3d 283, 291-93 (2d Cir. 1999), and Wal-Mart Stores, Inc. v. Visa U.S.A. Inc. (In re Visa Check/ MasterMoney Antitrust Litigation ) (“Visa Check”), 280 F.3d 124, 135 (2d Cir. 2001), which had permitted class certification based on “some showing” that the Rule 23 factors were met, obviating the need to assess conflicting expert testimony pertinent to the Rule 23 inquiries. IPO, 471 F.3d at 40.

Since IPO, a number of other circuits have detailed the issue. The First Circuit has reviewed these appellate cases, noting that “[o]ur sister circuits agree that when class criteria and merits overlap, the district court must conduct a searching inquiry regarding the Rule 23 criteria, but how they articulate the necessary degree of inquiry ranges along a spectrum which suggests substantial differences.” Brown v. Am. Honda (In re New Motor Vehicles Canadian Export Antitrust Litig. ), 522 F.3d 6, 24 (1st Cir. 2008) ( “New Motor Vehicles ”).

Though, of course, different circuits have used different words in articulating the review necessary, we think New Motor Vehicles overstates the degree of difference among the

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circuits. The core holding across circuits that have considered the issue is essentially unanimous: district courts must satisfy themselves that the Rule 23 requirements have been met before certifying a class, which will sometimes, though not always, require an inquiry into and preliminary resolution of disputed factual issues, even if those same factual issues are also, independently, relevant to the ultimate merits of the case. See, e.g., 1 Joseph M. McLaughlin, McLaughlin on Class Actions § 3:12 (6th ed. 2009) ( “Consensus is rapidly emerging among the United States Courts of Appeal. The First, Second, Third, Fourth, Fifth, Seventh, Eighth, Tenth and Eleventh Circuits have expressly adopted certification standards that require rigorous factual review and preliminary factual and legal determinations with respect to the requirements of Rule 23 even if those determinations overlap with the merits.”).

A closer discussion of the cases the First Circuit has cited demonstrates the truly narrow range in which this “spectrum” actually exists. Requiring the district court to “make specific findings that each Rule 23 criterion is met ” represents, the First Circuit has claimed, “around the more rigorous end of [the] spectrum,” and has been embraced by the Second, Fourth, Fifth, Seventh—and we would add Ninth—Circuits. New Motor Vehicles, 522 F.3d at 24 (citing IPO, 471 F.3d at 33, 41; Unger v. Amedisys Inc. , 401 F.3d 316, 321-22 (5th Cir. 2005) (requiring courts to find facts favoring class certification through the use of “rigorous, though preliminary, standards of proof ”); Gariety v. Grant Thornton, LLP , 368 F.3d 356, 366 (4th Cir. 2004) (requiring that “the factors spelled out in Rule 23 . . . be addressed through findings ”); Szabo, 249 F.3d at 675-76)); see Blackie, 524 F.2d at 897.

On the other end of this “spectrum,” according to the New Motor Vehicles court, are cases in “the Third and Eighth Circuits [which] sometimes require an inquiry into and preliminary resolution of disputes, but they do not require findings and do not hold that such inquiry will always be necessary. ”

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New Motor Vehicles , 522 F.3d at 24 (citing Blades v. Monsanto Co., 400 F.3d 562, 566-67 (8th Cir. 2005)); Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 259 F.3d 154, 166 (3d Cir. 2001)).

In our review of these cases, we find this “spectrum” of certification standards narrower and more internally consistent than does the First Circuit. To begin with, we respectfully disagree with New Motor Vehicles ’s characterization of the Third Circuit’s approach. The case New Motor Vehicles cited, Newton, 259 F.3d at 174-77, only discussed a “presumption” of conformity with Rule 23 in the context of the fraud-on-themarket presumption in a securities class action.

The Third Circuit has since provided clarification. It has noted that Newton does not hold that a district court can presume Rule 23 requirements met from contested pleadings outside the fraud-on-the-market context. Vallies v. Sky Bank, No. 08-4160, 2009 WL 5154473, at *7 (3d Cir. Dec. 31, 2009). It has also demonstrated its conformity with the other circuits’ standard more broadly. In In re Constar International Inc. Securities Litigation, the court explained that “we require that each Rule 23 component be satisfied.” 585 F.3d 774, 780 (3d Cir. 2009) (emphasis added) (citing In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 310 (3d Cir. 2009) ( “Hydrogen Peroxide”)). Recognizing the importance of the class certification decision, the court emphasized that “district courts, where appropriate, [are] to ‘delve beyond the pleadings to determine whether the requirements for class certification are satisfied.’ ” Id. (quoting Hydrogen Peroxide, 552 F.3d at 316; Newton, 259 F.3d at 167). It further elucidated, “[a]n overlap between a class certification requirement and the merits of a claim is no reason to decline to resolve relevant disputes when necessary to determine whether a class certification requirement is met. ” Id. (internal quotation marks omitted). The Third Circuit thus requires a district court “determination” that the “requirements” of Rule 23 have been “satisfied.” Id. While we readily recognize the benefit of the additional cases

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available to us in conducting our review, we respectfully disagree with the First Circuit’s conclusion that the Third Circuit allows a more lax standard of review than do other circuits.

New Motor Vehicles is on firmer ground describing the Eighth Circuit’s decision in Blades, though we find the language in that case more nuanced than New Motor Vehicles describes, and we disagree that Blades “suggests substantial differences” from other circuits. New Motor Vehicles , 522 F.3d at 24. The Blades court cited Falcon in describing the standard as follows:

To determine whether common questions predominate, a court must conduct a limited preliminary inquiry, looking behind the pleadings. In conducting this preliminary inquiry, however, the court must look only so far as to determine whether, given the factual setting of the case, if the plaintiffs [sic] general allegations are true, common evidence could suffice to make out a prima facie showing for the class . . . .

The preliminary inquiry at the class certification stage may require the court to resolve disputes going to the factual setting of the case, and such disputes may overlap with the merits of the case. See Szabo v. Bridgeport Machs., Inc. , 249 F.3d 672, 676-77 (7th Cir. 2001). Nonetheless, such disputes may be resolved only insofar as resolution is necessary to determine the nature of the evidence that would be sufficient, if the plaintiff’s general allegations were true, to make out a prima facie case for the class.

Blades, 400 F.3d at 566-67 (some citations omitted) (emphasis added).

While this language is not as definitive as that used by the Second Circuit in IPO, for example, it sets up essentially the

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same standard. Under Blades, district courts in the Eighth Circuit must “resolve” factual disputes going to the “setting of the case,” which we understand to mean the factual circumstances dictating whether the plaintiffs have met the Rule 23 requirements. Id. at 567. Supporting this understanding is Blades’s later statement explaining that “[t]o certify a class action under Rule 23(b)(3), the Court must find that: 1) common questions predominate . . . and 2) class resolution is superior to other available methods for the fair and efficient adjudication of the controversy.” Id. at 569 (emphasis added). Finally, like IPO, Blades understands Eisen as prohibiting the district court from making preliminary findings on merits issues not related to the Rule 23 resolution. See id. at 566-67; see also Richard A. Nagareda, Class Actions in the Administrative State: Kalven and Rosenfield Revisited , 75 U.Chi. L. Rev. 603, 616 (2008) ( “Nagareda, Class Actions”). Not surprisingly, then, IPO cited Blades as a key case supporting its conclusion to require district court determinations that each of the Rule 23 requirements is met. IPO, 471 F.3d at 38.

We thus view whether an appellate court requires district courts to “resolve,” id.; “find,” Unger, 401 F.3d at 319-20; or “determine,” IPO, 471 F.3d at 40-41, that Rule 23 requirements have been met, as essentially, even if not precisely, the same standard.6 To characterize such usage as embodying “substantial differences” seems to create a distinction where none exists. See New Motor Vehicles, 522 F.3d at 24; see also Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 113-14 (2009) (Nagareda,

6We recognize that these words imply slightly different approaches, and we agree with the IPO court’s thoughtful discussion of resisting use of the word “ ‘findings’ because the word usually implies that a district judge is resolving a disputed issue of fact, ” and the Rule 23 inquiry, though it may require findings in some cases, “is really a mixed question of fact and law.” 471 F.3d at 40. We cannot, however, agree that the difference in usage is significant enough that circuit courts using these various words employ substantially different standards. Cf. New Motor Vehicles , 522 F.3d at 24.

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Aggregate Proof) (describing federal courts as moving toward an “essentially uniform” standard that is “now-settled law”). Under any of these articulations, the charge to the district court follows the analysis the IPO court explained, and we agree, that Falcon and Eisen require. IPO, 471 F.3d at 41. The district court must analyze underlying facts and legal issues going to the certification questions regardless of any overlap with the merits. However, this does not mean a district court should put the actual resolution of the merits cart before the motion to dismiss, summary judgment, and trial horses by reaching out to decide issues unnecessary to the Rule 23 requirements.

Having discussed our sister circuits’ treatment of this issue, we now turn to the standard in our circuit as established by our previous cases.

C. Ninth Circuit Precedent

[6] Since we first addressed the issue in the wake of the Eisen and Falcon decisions, our cases have made clear that a district court inquiry overlapping with the merits is permissible, and often required, under Rule 23. See Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983) (“Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the certification stage. ” (citation omitted)). Later, we said that a district court is “at liberty to consider evidence which goes to the requirements of Rule 23 even though the evidence may also relate to the underlying merits of the case.” Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) (internal quotation marks omitted); see also Staton v. Boeing Co. , 327 F.3d 938, 954 (9th Cir. 2003) ( “The court may not go so far, of course, as to judge the validity of [the merits] claims. . . . But the breadth and consistency of class counsel’s initial evidence places the district court’s finding of commonality well within

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that court’s discretion.” (citation omitted)). We have also specifically cited Eisen in rejecting a party’s argument that Eisen prohibits any inquiry overlapping with the merits and explaining that such an overlapping inquiry is sometimes necessary under Rule 23. See Blackie, 524 F.2d at 897 (“Nor is the class issue separable from the merits in all cases (including this one). The common questions, typicality, conflicts and adequacy of representation, and predominance tests, are determinations . . . which may require review of the same facts and the same law presented by review of the merit”s.(citations omitted)).7

[7] We have adhered to the Supreme Court’s guidance in holding that “[a] class may only be certified if we are ‘satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’ ” Hanon, 976 F.2d at 509 (quoting

7Many other decisions have similarly shown this circuit’s proper, narrow reading of the “no merits inquiry” passage from Eisen to prohibit only merits inquiries unnecessary for the class certification decision. See, e.g., McElmurry v. U.S. Bank Nat’l Ass’n , 495 F.3d 1136, 1141-42 (9th Cir. 2007) (rejecting the appellants’ broad claim relying on misunderstood language from Eisen); Staton, 327 F.3d at 954 (citing Eisen in explaining that a merits inquiry is improper at the class certification stage though the district court was “well within” its discretion in considering overlapping issues); Valentino v. Carter-Wallace, Inc. , 97 F.3d 1227, 1232 (9th Cir. 1996) (discussing Eisen as prohibiting “a separate hearing to consider the merits of the plaintiffs’ claims when determining class certification ”); Hanon, 976 F.2d at 509 (describing Eisen as holding “a motion for class certification is not the appropriate point at which to resolve the merits of a plaintiff’s claim ”); Wright v. Schock , 742 F.2d 541, 544-45 (9th Cir. 1984) (understanding Eisen narrowly to allow a summary judgment motion before the class certification decision); Moore, 708 F.2d at 480 (“Although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage.”); Jordan v. County of Los Angeles , 669 F.2d 1311, 1321-22 (9th Cir.), (characterizing Eisen as confirming the narrow rule that “the class representative need not demonstrate a likelihood of success on the merits in order to maintain a class action ”), vacated on other grounds, 459 U.S. 810 (1982).

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Falcon, 457 U.S. at 161). We have also, however, recognized that Falcon contemplated cases in which “the issues are plain enough from the pleadings ” and do not require analysis beyond those papers. 457 U.S. at 160; Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 (9th Cir. 2005) (per curiam) (“The Supreme Court thus recognized over twenty years ago that a rigorous analysis does not always result in a lengthy explanation or in-depth review of the record. ”); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1023 (9th Cir. 1998). Thus, in some cases, the pleadings will be sufficient to render the certification decision, and in others, the district court must make determinations on facts overlapping with the merits.

In addition, our cases have understood that Falcon, like Rule 23 itself, requires “questions of law or fact that were common to the claims. ” 457 U.S. at 158 (emphasis added). Therefore, we have found class certification proper where a “plaintiff is attacking defendants’ discriminatory practices against females, and this is not just as it applied to plaintiff only,” because such a claim “identifies a common legal issue, discrimination against women, and a common factual problem, discrimination as applied ” by the defendant. Bouman v. Block, 940 F.2d 1211, 1232 (9th Cir. 1991) (internal quotation marks omitted); see also Rodriguez v. Hayes , No. 08-56156, 2010 WL 6394, at *12 (9th Cir. Jan. 4, 2010) ( “[T]he commonality requirements ask[s] us to look only for some shared legal issue or a common core of facts. ”). We have also, of course, rejected the “across-the-board” claims that Falcon prohibited, and we have denied class certification when a rigorous analysis did not show the class would implicate common questions. See, e.g., Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718, 730 (9th Cir. 2007) (citing Falcon in rejecting certification of a class action based on the unconscionability of a class action waiver because the district court did not perform the requisite analysis). As one example, we have explained that “commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members, ” because such a system

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implicates common factual questions. Armstrong, 275 F.3d at 868.

[8] Our most recent statement considering Falcon and Eisen comports with this understanding as well. Writing for the court in United Steel Workers v. ConocoPhillips Co. , Judge Bybee explained that it is the plaintiff’s theory that matters at the class certification stage, not whether the theory will ultimately succeed on the merits. See No. 09-56578, 2010 WL 22701, at *5 (9th Cir. Jan. 6, 2010). We thus found reversible error because the district court did not consider whether the plaintiff’s legal theory “was one in which common issues of law and or fact did not predominate, ” and instead found the class did not meet Rule 23’s requirements because “ ‘there can be no assurances that [plaintiffs] w[ould] prevail on this theory.’ ” Id. (citing the district court) (first emphasis added). In short, we have consistently held that when considering how the facts and legal issues apply to a class under Rule 23(a), the district court must focus on common questions and common issues, not common proof or likely success on the questions commonly raised. See id.

For the most part, the dozens of district court cases in this circuit parsing Eisen, Falcon, and our precedent, have considered Eisen’s language in context, concluding that they must make determinations that the requirements of Rule 23 have been met, and acknowledging that these determinations will sometimes require examining issues that overlap with the merits. See, e.g., Endres v. Wells Fargo Bank, No. C 06-7019, 2008 WL 344204, at *2 (N.D. Cal. Feb. 6, 2008) ( “[T]he court is not permitted to make a preliminary inquiry into the merits of the plaintiffs’ claims at that stage of the litigation. Nevertheless, the court must consider evidence relating to the merits if such evidence also goes to the requirements of Rule 23.” (internal quotation marks and citation omitted)); Westways World Travel, Inc. v. AMR Corp. , 218 F.R.D. 223, 230 (C.D. Cal. 2003) ( “Although the Supreme Court once stated that courts have no authority to conduct a preliminary inquiry

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into the merits of a suit in order to determine whether it may be maintained as a class action, [citing Eisen] later cases make clear that a preliminary inquiry into the merits is sometimes necessary to make a meaningful determination of class certification issues. At the same time, the court is required to take the allegations of the plaintiff’s complaint as true. Plaintiff bears the burden of showing that the elements of Rule 23 are met.” (citations omitted)). 8 These cases have correctly

8That district courts must consider questions overlapping with the merits, if doing so is necessary to find the Rule 23 requirements met, is the understanding of the majority of district court orders considering the issue in this circuit. See Colvin v. Citigroup Global Mkts., Inc., No. C 09-00238, 2009 WL 1657331, at *1-2 (N.D. Cal. June 11, 2009) (hearing issues overlapping with merits before class certification motion); In re First Am. Corp. ERISA Litig. , 258 F.R.D. 610, 616 (C.D. Cal. 2009) (citing Eisen but also noting Falcon’s statement that class determinations are often “enmeshed” with merits issues); In re Cooper Cos. Sec. Litig. , 254 F.R.D. 628, 641 n.7 (C.D. Cal. 2009) (noting the obligation to consider evidence relating to the Rule 23 determination, but stating that “[a]t the same time, the inclusion of evidence that may speak to the merits of a case does not mean that a district court should mistake class action certification for summary judgment”); Ballew v. Matrixx Initiatives, Inc. , No. CV-07-267, 2008 WL 4831481, at *2 (E.D. Wash. Oct. 31, 2008) ( “It is true that at this stage of the proceedings the Court is not resolving whether Plaintiff can establish that she can prove her case. Rather, the narrow question before the Court is whether, under Fed. R. Civ. P. 23, a class action is a proper vehicle for litigating the products liability claims brought by Plaintiff.”); Bishop v. Petro-Chem. Transp., LLC , 582 F. Supp. 2d 1290, 1305 (E.D. Cal. 2008) ( “[T]he Court has evaluated the evidence of the Motor Carrier exemption, not to determine whether plaintiff will ultimately prevail at trial, but to determine, again, whether the proposed class members are similarly situated. ”); Lindquist v. Farmers Ins. Co. of Ariz. , No. CV 06-597, 2008 WL 343299, at *6 (Feb. 6, 2008 D. Ariz. 2008) ( “While preliminary inquiry into the merits is sometimes appropriate to the extent necessary to evaluate class certification issues that happen to be intertwined with facts relating to the underlying merits . . . the general rule followed by federal courts [is] that trial courts may not decide the merits of the case or consider the likelihood of success on the merits in determining whether the requirements of Rule 23 class certification are met. ”); Alexander v. JBC Legal Group, P.C. , 237 F.R.D. 628, 630 (D. Mont. 2006) ( “It is improper for this Court to consider the merits of the complaint beyond

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threaded the needle between Eisen, Falcon, and our precedent.

In the less typical instances in which district courts in this circuit have been led astray, a common reason seems to have been a misreading of our statement in footnote 17 of Blackie v. Barrack, in which we explained that district courts are “bound to take the substantive allegations of the complaint as true, thus necessarily making the class order speculative in the sense that the plaintiff may be altogether unable to prove his allegations.” 524 F.2d at 901 n.17; see also Edwards v. City of Long Beach , 467 F. Supp. 2d 986, 991 (C.D. Cal. 2006) (“The court is bound to take the substantive allegations in the complaint as true. ”). But, that statement is taken out of con-

what is necessary to decide whether the requirements of Rule 23 have been met.”); In re Seagate Tech. II Sec. Litig. , 843 F. Supp. 1341, 1367 (N.D. Cal. 1994) (noting that “district courts must examine some of the merits” because “the adequacy of the representation cannot be ascertained without examining the composition of the class ”); Hernandez v. Alexander, 152 F.R.D. 192, 194 (D. Nev. 1993) ( “The determination of whether to certify a class does not permit or require a preliminary inquiry into the merits. Only the class certification requirements of Rule 23 need be considered at the class certification stage. However, before certifying a class action the trial court must be satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been met. ” (citations to Eisen and Falcon omitted)); Lim v. Citizens Sav. & Loan Ass’n , 430 F. Supp. 802, 805-06 (N.D. Cal. 1976) ( “Although the Eisen rule has evolved into a wedge for broad class certification by plaintiffs, a close reading of the Eisen case indicates the Supreme Court’s contrary intention . . . . ”); El Concilio v. Modesto Elementary Sch. Dist., No. C-76-2479, 1978 WL 56, at *1 (N.D. Cal. May 11, 1978) ( “While the Court is foreclosed from a preliminary inquiry into the merits in order to determine whether it may be maintained as a class action, it must determine whether plaintiffs have met their burden of establishing the existence of a claim of unlawful employment practices affecting an ascertainable class of persons of which they are members.” (internal quotation marks and citation omitted)); Nguyen Da Yen v. Kissinger , 70 F.R.D. 656, 661 (N.D. Cal. 1976) ( “In determining whether a matter should proceed as a class action the court is required to make findings concerning each essential element of the class action rule.”).

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text when relied on in this manner. 9 The subsequent sentences in Blackie, which the erring district courts almost universally neglect to include, explained that, although “the court may not put the plaintiff to preliminary proof of his claim, it does require sufficient information to form a reasonable judgment. Lacking that, the court may request the parties to supplement the pleadings with sufficient material to allow an informed judgment on each of the Rule’s requirements .” 524 F.2d at 901 n.17 (emphasis added). Discussing when a certification inquiry overlaps with the merits, we further explained in Blackie:

Nor is the class issue separable from the merits in all cases (including this one). The common questions, typicality, conflicts and adequacy of representation, Fed. R. Civ. P. 23(a), and predominance tests, Fed. R. Civ. P. 23(b)(3), are determinations . . . which may require review of the same facts and the same law presented by review of the merits.

524 F.2d at 897.

[9] A better reading of Blackie, then, is to understand it as having the meaning that our cases, and the majority of district court opinions, have ascribed to it: Blackie is entirely consistent with the Supreme Court’s guidance, explicitly requiring

9District courts in this circuit have quoted this passage somewhat out of context on a number of occasions. See Mateo v. V.F. Corp. , No. C 0805313, 2009 WL 3561539, at *4 (N.D. Cal. Oct. 27, 2009) (citing Blackie though noting that the defense’s arguments addressed only the merits and not the Rule 23 inquiry); Perez v. Safety-Kleen Sys., Inc. , 253 F.R.D. 508, 511 (N.D. Cal. 2008) (noting that “the court must accept the substantive allegations contained in plaintiffs’ complaints as true ”); Nw. Fruit Co. v. A. Levy & J. Zentner Co. , 116 F.R.D. 384, 388 (E.D. Cal. 1986) (same); see also Steig D. Olson, “Chipping Away”: The Misguided Trend Toward Resolving Merits Disputes as Part of the Class Certification Calculus , 43 U.S.F. L. Rev. 935, 949 n.89 (2009) (understanding Blackie as requiring acceptance of a plaintiff’s claims as to not only merits questions, but Rule 23 requirements as well).

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a district court to probe behind the pleadings if doing so is necessary to make findings on the Rule 23 certification decision. Thus, Blackie does not, and could not, require the district court to unquestioningly accept a plaintiff’s arguments as to the necessary Rule 23 determinations. The sense in which Blackie referred to class certification as speculative is the same way in which we most recently, and more artfully, described the inquiry:

[A] court can never be assured that a plaintiff will prevail on a given legal theory prior to a dispositive ruling on the merits, and a full inquiry into the merits of a putative class’s legal claims is precisely what both the Supreme Court and we have cautioned is not appropriate for a Rule 23 certification inquiry.

United Steel Workers, 2010 WL 22701, at *5.

In short, the explanation we provide today is not a new standard at all. Though a small number of district courts in this circuit have misunderstood Blackie and relied on Eisen in the way that the Second Circuit has cautioned against, and that we now reject, the precedent from this court is consistent. We are unable to find a single case in our court that incorrectly relied on the “no merits inquiry ” language from Eisen in certifying a class without examining necessary issues because they overlapped with the merits. Cf. Caridad, 191 F.3d at 291-92 (applying the “no merits inquiry ” language from Eisen out of context to prohibit the proper Rule 23 analysis). Our explanation confirms what our decisions have held for more than twenty-five years: A district court must sometimes resolve factual issues related to the merits to properly satisfy itself that Rule 23’s requirements are met, but the purpose of the district court’s inquiry at this stage remains focused on, for example, common questions of law or fact under Rule 23(a)(2), or predominance under Rule 23(b)(3), not the proof of answers to those questions or the likelihood of success on the merits. Falcon, 457 U.S. at 158 (requiring

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a “specific presentation identifying the questions of law or fact that were common to the claims of respondent and of the members of the class he sought to represent ” (emphasis added)); United Steel Workers , 2010 WL 22701, at *5 (district court erred in basing its decision on whether the plaintiffs could prove merits rather than whether their claims implicated common questions of law or fact). Of course, for class certification to be proper, the common questions cannot simply arise from artful pleading. Plaintiffs must raise questions that the district court concludes, after a rigorous analysis, are susceptible to common resolution at a later stage.

D. Clarifying the Standard

1. The Proper Standard of Rule 23 Adjudication

This review of Supreme Court dictates, as well as our own and other circuits’ treatment of the issue, leads us to recognize a number of constant holdings across circuits that we must incorporate into our clarification of the proper standard governing a district court in considering a Rule 23 motion for class certification.

To begin with, at the class certification stage, while Eisen prohibits a court from making determinations on the merits that do not overlap with the Rule 23 inquiry, district courts must make determinations that each requirement of Rule 23 is actually met. This bedrock rule is consistent with the Supreme Court’s statements, other circuits’ decisions, and our long-standing precedent. While plaintiffs need not make more than allegations as to their substantive claims, whether the suit is appropriate for class resolution must be actually demonstrated, not just alleged, to the district court’s satisfaction.

In addition, in the cases such as IPO in which courts have recognized how Eisen is sometimes misunderstood, those circuits have uniformly reserved discretion with the district court to avoid a trial-level inquiry at the certification stage despite

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the need to find the Rule 23 requirements met. 10 See, e.g., Blades, 400 F.3d at 567 ( “The closer any dispute at the class certification stage comes to the heart of the claim, the more cautious the court should be in ensuring that it must be resolved in order to determine the nature of the evidence the plaintiff would require. ”). District courts must maintain the ability to cut off discovery to avoid either party bootstrapping a trial or summary judgment motion into the certification stage. Nearly every circuit to consider the issue, including our own, has recognized the practical importance of the certification decision as leverage for settlement, yet Rule 23 gives neither party the right to turn the certification decision into a trial.

When reading recent class certification cases, one also notices the prevalence of securities fraud cases, and particularly the fraud-on-the-market presumption, in the evolution of the Rule 23 standard. See, e.g., Oscar Private Equity Invs. v. Allegiance Telecom, Inc., 487 F.3d 261, 264 (5th Cir. 2007); IPO, 471 F.3d at 30-31; Bowe v. PolyMedica Corp. (In re PolyMedica Corp. Secs. Litig. ), 432 F.3d 1, 6-7 (1st Cir. 2005); Unger, 401 F.3d at 323-24; Gariety, 368 F.3d at 36466; West v. Prudential Sec., Inc. , 282 F.3d 935, 937-38 (7th Cir. 2002).

It is an interesting feature of the case law’s development that it has occurred largely in these fraud-on-the-market cases, in which a plaintiff typically must show the six “basic elements” of a securities fraud action, Dura Pharms., Inc. v.

10IPO’s “release valve” reads as follows:
[W]e reach the following conclusions: . . . (5) a district judge has ample discretion to circumscribe both the extent of discovery concerning Rule 23 requirements and the extent of a hearing to determine whether such requirements are met in order to assure that a class certification motion does not become a pretext for a partial trial of the merits.
471 F.3d at 41.

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Broudo, 544 U.S. 336, 341-42 (2005), and the efficient market component of the causation element overlaps with the merits. We must, then, be aware that applying the same procedural rules, such as Rule 23, can lead to different outcomes when the underlying legal and factual framework is different. See, e.g., Hohider v. United Parcel Serv., Inc. , 574 F.3d 169, 182-85 (3d Cir. 2009) (describing how the pattern and practice evidentiary framework from Title VII cases is not perfectly applicable in the context of the Americans with Disabilities Act).

Thus, in contrast to a securities class action based on a fraud-on-the-market theory, in a pattern and practice discrimination case, a plaintiff will typically not come to court in the first place without anecdotal evidence. For practical purposes, assuming a plaintiff possesses anecdotal evidence, the plaintiff’s statistical evidence does not overlap with the merits, it largely is the merits. See Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 986-87 (1988); Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 337-39 (1977). This means that disputes over whose statistics are more persuasive are often not disputes about whether the plaintiffs raise common issues or questions, but are really arguments going to proof of the merits. See Nagareda, Class Actions, supra, at 619-20 (“Nowhere is this [disputed statistics] problem more acute than in employment discrimination class actions centered on statistical analysis of an aggregate nature. ”). Of course, if one party argued that the other party’s statistics were unreliable or based on an unaccepted method, this may be an issue the district court would have to resolve to determine whether the potentially problematic statistics were even capable of raising a common question.

In fact, after IPO, but before his recent elevation to the Second Circuit, Judge Gerard Lynch recognized this problem in a Title VII gender discrimination case in which the plaintiffs were seeking to certify on the same grounds as those here. Predictably faced with a dispute regarding whether the plain-

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tiffs’ statistics demonstrated commonality, Judge Lynch
addressed IPO’s application in a Title VII, gender discrimination context.11

The problem, the district court explained, was that “[i]n deciding that the class certification order complied with In re IPO, it is important to note that disparate impact cases present unique difficulties in analyzing the commonality requirement of Rule 23(a). Plaintiffs in disparate impact cases often rely on statistical evidence to prove the merits of their claim. ” Hnot v. Willis Group Holdings Ltd. , 241 F.R.D. 204, 210-11 (S.D.N.Y. 2007). The court continued, “[i]n such a case, however, the same evidence must be considered to determine whether a plaintiff has satisfied the commonality requirement.” Id. at 211.

In resolving this problem and certifying the class, the district court noted, “[c]ontrary to defendants’ assertions, In re IPO does not stand for the proposition that the Court should, or is even authorized to, determine which of the parties’ expert reports is more persuasive. Defendants ignore the fact that In re IPO specifically rejected this interpretation of Rule 23.” Id. at 210. Instead, Judge Lynch explained, “In re IPO reiterated that ‘experts’ disagreement on the merits—whether a discriminatory impact [can] be shown—[is] not a valid basis for denying class certification.’ ” Id. (alterations in original) (quoting IPO, 471 F.3d at 35). Thus, the court could only “examine the expert reports as far as they bear on the Rule 23 determination.” Id.

Judge Lynch similarly clarified, with regard to the disparate treatment issue in the case before him, that “plaintiffs and defendants disagree on whose statistical findings and observations are more credible, but this disagreement is relevant only

11The plaintiffs in Hnot pled both disparate impact and disparate treatment theories of discrimination under Title VII. See Hnot v. Willis Group Holdings Ltd., 228 F.R.D. 476, 486 (S.D.N.Y. 2005).

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to the merits of plaintiffs’ claim—whether plaintiffs actually suffered disparate treatment—and not to whether plaintiffs have asserted common questions of fact or law; plaintiffs’ ultimate success at trial on the merits requires an answer to that question, specifically that defendants actually did discriminate against plaintiffs. ” Id. at 210-11. “By asking the Court to decide which expert report is more credible, defendants are requesting that the Court look beyond the Rule 23 requirements and decide the issue on the merits, a practice In re IPO specifically cautions against.” Id. at 210.

Thus, in addition to demonstrating Rule 23’s proper implementation in various legal contexts (securities class actions versus Title VII claims), Hnot also illustrates a second feature of the certification cases that we must address. Because the fraud-on-the-market cases are typically decided under Rule 23(b)(3)’s predominance requirement, a related feature of the circuit court cases considering the proper standard a district court applies, when deciding whether to certify a class, is the difference between cases describing review of evidence under Rule 23(a) and those under Rule 23(b). 12 We are unaware of any argument claiming that a different standard should apply in the two inquiries, and the cases generally treat the precedent as applying equally to both contexts. We do, however, note that the inquiry cannot be divorced from the text of Rule 23, which, of course, requires plaintiffs to make different showings under different parts of the rule. This distinction helps order the doctrine, keeping in mind the different requirements under Rule 23(a) and (b) and how those requirements may play out in a district court’s certification decision.

This insight derives from the Supreme Court’s explanation of the predominance test under Rule 23(b)(3). Predominance, the Court explained, “tests whether proposed classes are suffi-

12More specifically, as the cases demonstrate, is the standard for evidence under Rule 23(a)(2), commonality, versus Rule 23(b)(3), predominance.

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ciently cohesive to warrant adjudication by representation, ” Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 623 (1997), a standard “far more demanding ” than the commonality requirement of Rule 23(a), id. at 623-24. Thus, we would expect that cases in which the parties are contesting facts underlying the Rule 23(b)(3) determination may often require more determinations by the district court than those in which Rule 23(a)(2) is the primarily contested issue. Rule 23(a)(2) is about invoking common questions, see Falcon, 457 U.S. at 158, whereas Rule 23(b)(3) requires a district court to formulate “some prediction as to how specific issues will play out in order to determine whether common or individual issues predominate in a given case, ” New Motor Vehicles, 522 F.3d at 20 (internal quotation marks omitted). We thus should not be surprised that a district court will have to make more precise factual determinations under Rule 23(b)(3) than under Rule 23(a)(2). This insight does not apply a procedural rule differently in two like contexts; it applies the text of Rule 23 itself to the district court’s task.

While we find the case law across circuits more uniform than some courts have implied, see id. at 24, to the extent it is not, this result may be because of courts’ failure to recognize this key difference between a district court’s job under Rule 23(a)(2) and its job under Rule 23(b)(3). 13 This conclusion is further supported when one notices that Falcon’s primary inquiry was under Rule 23(a), 457 U.S. at 156-58, whereas many of the circuit courts discussed above were concerned with Rule 23(b)’s predominance test and, thus, required the district court to make more detailed determina-

13Even commentators who clearly recognize this difference often lapse into speaking about Rule 23 as requiring a single showing, minimizing the differences between Rule 23(a)(2) and Rule 23(b)(3). See, e.g., Nagareda, Class Actions, supra, at 622 ( “To task the court at the class certification stage here with the making of a ‘definitive assessment’ of compliance with Rule 23 would be to call, as a practical matter, for an assessment of which side is right on the merits with regard to the existence of a company-wide policy.”).

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tions as to how the facts at issue would play out—whether they would predominate—in the merits of the litigation. See, e.g., Hydrogen Peroxide, 552 F.3d at 310 (Rule 23(b)(3) predominance); New Motor Vehicles , 522 F.3d at 26 (same); IPO, 471 F.3d at 45 (same); In re PolyMedica Corp. Secs. Litig., 432 F.3d at 3 & n.4 (same); Unger, 401 F.3d at 320, 324-25 (same); Blades, 400 F.3d at 566 (same); Gariety, 368 F.3d at 364-65 (same); Szabo, 249 F.3d at 676-77 (same).

Though some courts have noted the difference between Rule 23(a) and 23(b) in passing, see Hydrogen Peroxide, 552 F.3d at 310-11,14 we are not aware of any decisions detailing the difference, and some courts have failed to note the distinction at all. See, e.g., IPO, 471 F.3d at 33 n.3 ( “We see no reason to doubt that what the Supreme Court said about Rule 23(a) requirements applies with equal force to all Rule 23 requirements, including those set forth in Rule 23(b)(3). ”). We think a great deal of any disparity in different courts’ explication of the Rule 23 standard can be explained by this difference. The lesson for future district courts is that, in a given case, the text of Rule 23(a), as compared to Rule 23(b), may require them to determine more or different facts (typically more under Rule 23(b)(3)) to determine whether the plaintiffs have met their Rule 23 burden.

[10] In short, these observations, which include the Supreme Court’s direction, long-standing precedent in this court, and treatment from other circuits, lead us to the following explanation of the proper standards governing a district court’s adjudication of a Rule 23 motion for class certification. First, when considering class certification under Rule 23, district courts are not only at liberty to, but must, perform a rigorous analysis to ensure that the prerequisites of Rule 23 have been satisfied, and this analysis will often, though not always, require looking behind the pleadings to issues over-

14See also Olson, supra, at 947 (noting that class certification must be particularly predictive under Rule 23(b)(3)).

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lapping with the merits of the underlying claims. It is important to note that the district court is not bound by these determinations as the litigation progresses. Second, district courts may not analyze any portion of the merits of a claim that do not overlap with the Rule 23 requirements. Relatedly, a district court performs this analysis for the purpose of determining that each of the Rule 23 requirements has been satisfied. Third, courts must keep in mind that different parts of Rule 23 require different inquiries. For example, what must be satisfied for the commonality inquiry under Rule 23(a)(2) is that plaintiffs establish common questions of law and fact, and answering those questions is the purpose of the merits inquiry, which can be addressed at trial and at summary judgment. Fourth, district courts retain wide discretion in class certification decisions, including the ability to cut off discovery to avoid a mini-trial on the merits at the certification stage. Fifth, different types of cases will result in diverging frequencies with which the district court will properly invoke its discretion to abrogate discovery. As just one example, we would expect a district court to circumscribe discovery more often in a Title VII case than in a securities class action resting on a fraud-on-the-market theory, because the statistical disputes typical to Title VII cases often encompass the basic merits inquiry and need not be proved to raise common questions and demonstrate the appropriateness of class resolution. Plaintiffs pleading fraud-on-the-market, on the other hand, may have to establish an efficient market to even raise common questions or show predominance.

2. The Dissent’s “Significant Proof” Standard

In addition to setting out our own review, we feel compelled to discuss the dissent’s consideration of this issue. The Supreme Court’s decisions in Falcon and Eisen are the primary guides to our ruling in this case. The dissent, in suggesting that we are unfaithful to Falcon, seeks to create a new class action requirement based on a hypothetical in one sentence of Supreme Court dicta; conflates, or at least fails to dis-

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tinguish, the posture of Falcon and the present case; ignores the weight of the many cases in other circuits arriving at the same standard we have described above; and renders itself unpersuasive by critiquing the district court’s eighty-fourpage analysis as insufficiently rigorous. In doing so, the dissent is unfaithful to the actual distinctions the Supreme Court relied upon in Falcon, and variously depicts Falcon as instituting a “significant proof” “burden” or “ ‘significant proof’ requirement” that Falcon did not create. Dissent at 6247, 6454.

We read Falcon, as has nearly every Court of Appeals to consider the question, as creating the standard we describe above. But in discussing what it views as the analysis required by Falcon, the dissent quotes a portion of a sentence of Falcon dicta in footnote 15 as standing for the requirement that plaintiffs cannot prevail at the certification stage without showing “[s]ignificant proof that an employer operated under a general policy of discrimination. ” Id. at 6244. However, the entire footnote sentence reads as follows: “Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes .” Falcon, 457 U.S. at 159 n.15 (emphasis added). 15

15The dissent chides us for ignoring the “ ‘significant proof’ requirement” from Falcon, an approach the dissent finds troubling, particularly because Falcon is “directly on point. ” Dissent at 6245-46. Putting aside the fact that, unlike here, the problem in Falcon was a proposed class consisting of members of the general public who had sought employment, represented by an employee who had sought promotion, alleging different theories of discrimination, see Falcon, 457 U.S. at 157-58, ignoring relevant Supreme Court guidance would indeed be troubling if that was in fact what we were doing. But the dissent mischaracterizes the role that “significant proof” played in the Falcon analysis. The statement was a hypothetical in clear dicta. Id. at 159 n.15. It is important not to apply Supreme Court dicta “to create a new rule—one [the Court] never envisioned. ”

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Falcon’s discussion of two distinct processes—hiring and promotion—for which “significant proof” could prove sufficient to certify a single class, is an unusually high standard that Plaintiffs here need not meet because they did not present the distinct legal theories of recovery that the Falcon plaintiffs, both employees and applicants, had pursued together in one class. “The question before the district court was not whether [Plaintiffs] have definitively proven disparate treatment and a disparate impact; rather, the question was whether the basis of [Plaintiffs’] discrimination claims was sufficient to support class certification. ” Brown v. Nucor Corp. , 576 F.3d 149, 156 (4th Cir. 2009), cert. denied, No. 09-981, 2010 WL 285702 (Mar. 1, 2010).

Contrary to the dissent,16 Falcon does not say that Plaintiffs

Lopez-Rodriguez v. Holder , 560 F.3d 1098, 1099 (9th Cir. 2009) (order) (Bea, J., dissenting from denial of reh’g en banc). Further, here, we are not taking Supreme Court statements and “blandly shrug[ging] them off because they were not a holding. ” Newdow v. U.S. Congress , 328 F.3d 466, 480 (9th Cir. 2003) (order) (O’Scannlain, J., dissenting from denial of reh’g en banc). Instead, we are considering the statements and avoiding creating a new rule of law, noting that we should be particularly wary of conceiving such a rule from dicta when the facts underlying the dicta are easily distinguished from the present case and when the dicta relied upon was in the form of a hypothetical.
16The dissent reads Falcon to require a showing of evidence “sufficient to carry plaintiffs’ burden of adducing significant proof. ” Dissent at 6259. However, the dissent’s encapsulating all of Falcon into this one phrase in dicta ignores other key distinctions on which the Court was actually relying. Falcon does not hold that a plaintiff must prove a widespread policy of discrimination to obtain class certification nor, of course, does it allow a district court to certify a class based on a plaintiff’s mere allegations of discriminatory practices. 457 U.S. at 157-58. Rather, Falcon only says that an individual who, on his own behalf, does not allege any overall policy cannot, by proving his own case, establish on the merits an inference relevant to the group, thus remedying his failure to otherwise make a showing of commonality. Id. Such a statement is a far cry from suggesting, as does the dissent, see Dissent at 6247, 6249-50, that a class cannot be certified unless the plaintiffs prove a discriminatory overall policy — in which case there would be no reason to have a trial at all.

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must show a common policy of proven discrimination at the class action stage, rather than just a common policy alleged to be discriminatory. 457 U.S. at 158-59. Of course, as we have already explained, named plaintiffs must do more than merely allege discriminatory practices against themselves. Id. As we demonstrate below, Plaintiffs here do so, making showings through their expert testimony and statistical evidence, which further distinguishes the certification decision here from that decision in Falcon. In maintaining otherwise in its discussion, the dissent confuses merits decisions such as Teamsters, 431 U.S. at 336, and class action certification decisions.17 It also ignores our previous statement examining Falcon footnote 15 in which we explained that “[w]e understand footnote fifteen of Falcon to present a demonstrative example rather than a limited exception to the overall skepticism toward broad discrimination class actions. ” Staton, 327 F.3d at 955. In other words, as we have previously described Falcon, the Supreme Court “does not generally ban all broad classes but rather precludes a class action that, on the basis of one form of discrimination against one or a handful of plaintiffs, seeks to adjudicate all forms of discrimination against all members of a group protected by Title VII, § 1981, or a similar statute.” Id.

The dissent also largely ignores Supreme Court guidance by failing to recognize that Falcon addressed the claim that the allegations of an employee subject to discrimination in

17The dissent’s claim that Plaintiffs must prove discrimination at this stage, Dissent at 6247, conflates the class certification and merits phases of the litigation. See Brown, 576 F.3d at 153 ( “[A]llegations of a practice of disparate treatment in the exercise of unbridled discretion raises questions of law and fact common to all subject black employees. ” (emphasis added) (internal quotation marks omitted))); Shipes v. Trinity Indus. , 987 F.2d 311, 316 (5th Cir. 1993) ( “The threshold requirements of commonality and typicality are not high . . . . 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). ” (emphasis added)).

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promotion decisions “fairly encompassed” the claims of nonemployees allegedly subject to discrimination in a discrete hiring process. Falcon, 457 U.S. at 158. Such a determination under Rule 23 is clearly distinct from an inquiry where, as here, a class consists entirely of individuals actually employed under the same corporate policies. 18 Critically, in Falcon, the individual plaintiff’s claim was based on promotion practices for his allegations and hiring practices for the putative class members, yet Falcon’s “complaint contained no factual allegations concerning petitioner’s hiring practices, ” id. at 150, despite the fact that the class members’ claims depended on pattern or practice in hiring, id. at 159. In contrast, where the individual plaintiffs seek to prove their own cases through pattern or practice methods, they are necessarily dependent on proving facts relevant to others of the same protected group subject to the same policy, class action or no class action. See Watson, 487 U.S. at 994-95; see also Nagareda, Aggregate Proof, supra, at 150 ( “The terms ‘pattern’ and ‘practice’ themselves imply an aggregate perspective. ”).

18Indeed, the record provides significant evidence of central control. The district court found that, “[h]aving reviewed the extensive evidence submitted by the parties, . . . Wal-Mart’s systems for compensating and promoting in-store employees are sufficiently similar across regions and stores to support a finding that the manner in which these systems affect the class raises issues that are common to all class members. ” Dukes, 222 F.R.D. at 149. Yet the dissent seems to assume that central control was not a pervasive feature of Wal-Mart’s baseline promotion policies, or that if it was, such control undercuts Plaintiffs’ case. Dissent at 6253 (rejecting Plaintiffs’ claim that “ ‘the subjective decision-making in compensation and promotions takes place within parameters and guidelines that are highly uniform, and within a strong corporate culture,’ ” because “this argument is contrary to the thrust of plaintiffs’ legal theory ”) (citing Dukes, 222 F.R.D. at 157). Such a view ignores the precise contours of Plaintiffs’ claims. Questioning the degree of central control over the framework policies is particularly surprising given the district court’s findings, see Dukes, 222 F.R.D. at 145-54, and additional evidence in the record that, for example, Wal-Mart posted employees in the “Rising Star Program” who were eligible for promotion on a wall in the Bentonville Home Office.

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Finally, Plaintiffs here are unlike the plaintiff in Falcon, who failed to “otherwise [ ]support[ his] allegation that the company ha[d] a policy of discrimination” except by claiming that he himself had been denied a promotion on discriminatory grounds. Falcon, 457 U.S. at 157-58. As we detail below, Plaintiffs here have introduced “significant proof” of WalMart’s policies, and their effects on the certified class, and have introduced evidence of far more than “the validity of [their] own claim[s]. ” Id. Even if the dissent were correct in creating a “significant proof” standard (or burden, or requirement), which it is not, it would not apply to Plaintiffs in this case. “Subjective decisionmaking processes” are exactly what the Plaintiffs allege here and what the Supreme Court’s hypothetical expressed concern with in Falcon. Id. at 159 n.15. In addition, it is not clear that such a standard, if it existed, need apply to Plaintiffs—everyone of whom was or is an employee —at all because they are not situated as the Falcon plaintiffs, who were both employees seeking promotion and job applicants pursuing a position and thus needed to show different facts and allege diverging legal theories.

Again unlike in Falcon, and as discussed in detail below, the district court here did not presume or fail “to evaluate carefully the legitimacy [of Plaintiffs’ claims to be] proper class representative[s],” id. at 160, but rather found Rule 23 satisfied only after undertaking the “rigorous analysis” the Supreme Court requires, see Dukes, 222 F.R.D. at 143-69. The specific recognition of Falcon’s “rigorous analysis” requirement guided the district court’s analysis throughout its lengthy order, and the court made determinations that each of Rule 23’s requirements were satisfied. Id. at 143-44, 166-68 (applying Falcon). The dissent’s attenuated claim that the district court abused its discretion by failing to require a “specific presentation identifying the questions of law or fact that were common to the claims of respondent and of the members of the class he sought to represent, ” see Falcon, 457 U.S. at 158, is vitiated by the twenty-four pages in which the district court exhaustively performed exactly that analysis, explicitly

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considering questions of law and fact that were common to the members of the class and the named representatives, 19 see Dukes, 222 F.R.D. at 145-69. In short, and as we will now explain, at the certification stage, it is difficult for us to envision a more rigorous analysis than the one the district court conducted.

III. CERTIFICATION OF THIS CLASS

Unsurprisingly, the class in this case is broad and diverse, encompassing both salaried and hourly employees in a range of positions, who are or were employed at one or more of Wal-Mart’s 3,400 stores across the country. The district court found that the large class is united by a complex array of company-wide practices, which Plaintiffs contend discriminate against women.

A. Rule 23(a)

At the outset of considering the district court’s certification order in light of the above-clarified standard, we note two facets of the district court’s review.

First, this case reached us after a significantly more searching review than cases in other circuit courts explaining the Rule 23 standard. In Szabo, for example, the district court “assumed that whatever [the plaintiff] allege[d] must be true, ” and it “[p]roceed[ed] as if class certification under Rule 23 were governed by the same principles as evaluating the sufficiency of the complaint under Rule 12(b)(6). ” 249 F.3d at 674-75. In Gariety, the case came to the Fourth Circuit after

19These common issues of law and fact, necessary to bridge the gap from the class representatives to the entire class, are discussed in Part III.A. For now, it is sufficient to note that they include an analysis of similar promotion and compensation policies Wal-Mart applied to all employees, a dominant corporate culture Wal-Mart maintained throughout its stores, and statistical evidence showing class-wide gender disparities in compensation. Dukes, 222 F.R.D. at 145-69.

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the district court had concluded that “the fact that the plaintiffs have asserted that the Keystone market was efficient is enough at the certification stage to find the market efficient. ” 368 F.3d at 361 (emphasis added); see also Vallario v. Vandehey, 554 F.3d 1259 , 1265-66 (10th Cir. 2009) (district court abused its discretion in thinking it was barred from any consideration of action’s merits); IPO, 471 F.3d at 30 (district court finding that only “plaintiffs—who have the burden of proof at class certification—must make ‘ some showing’ ”).

In other words, previous circuit courts addressing similar issues have been faced with district courts making the same mistake that we described a small number of district courts in this circuit have made in citing Blackie out of context: refusing to consider any issue overlapping with the merits, and assuming the plaintiffs’ substantive allegations as true for the Rule 23 inquiry. As we demonstrate below, such review is entirely dissimilar from the district court’s review in this case.

Second, we also note that resolving this case requires a close reading of the district court’s lengthy opinion to determine the standard the district court applied in deciding to certify the class. Contrary to the claims of Wal-Mart and the dissent, such a reading of the district court’s individual determinations on Rule 23(a) shows that the district court actually weighed evidence and made findings sufficient under the standard we have described above.

[11] In broadly discussing the standard of review, the district court stated the following:

A party seeking to certify a class must demonstrate that it has met all four requirements of Federal Rule of Civil Procedure 23(a), and at least one of the requirements of Rule 23(b). Rule 23(a) requires that all of the following four factors be met . . . . In short, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy. . . .

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The party seeking certification must provide facts sufficient to satisfy Rule 23(a) and (b) requirements. In turn, the district court must conduct a rigorous analysis to determine that the prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon., 457 U.S. 147, 161 (1982). If a court is not fully satisfied, certification should be refused. . . . See Fed. R. Civ. P. 23 advisory committee’s note to 2003 amends.

. ...

. . . “[A]lthough some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the certification stage. ” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983) (citation omitted); see also Nelson v. United States Steel Corp., 709 F.2d 675, 679-80 (11th Cir. 1983) (plaintiffs’ burden at class certification “entails more than the simple assertion of [commonality and typicality] but less than a prima facie showing of liability”) (citation omitted).

Dukes, 222 F.R.D. at 143-44 (some citations omitted) (last alteration in original) (emphasis added). Unlike some other district courts, which have assumed facts in a complaint, the district court here spent significant effort explaining a nuanced standard that clearly comprehended the need to look well beyond the pleadings in the case.

[12] Most importantly, as we will now explain, the district court’s standard led to a review that complies with Falcon and with our herein-described standards that a district court must follow when deciding whether to certify a class.

1. Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable. ” Wal-Mart does not contest this point.

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2. Commonality

Rule 23(a)(2) requires that “there are questions of law or fact common to the class. ” Commonality focuses on the relationship of common facts and legal issues among class members. See, e.g., Conte & Newberg, supra, § 3:10, at 271. We noted in Hanlon, 150 F.3d at 1019:

Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be common to satisfy 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.

The commonality test is

“qualitative rather than

quantitative”—one significant issue common to the class may

be sufficient to warrant certification, see, e.g., Savino v. Com-

puter Credit, Inc ., 173 F.R.D. 346, 352 (E.D.N.Y. 1997),

aff’d, 164 F.3d 81 (2d Cir. 1998); see also Conte & Newberg,

supra, § 3:10, at 272-74, a standard that dovetails with our

discussion above, requiring plaintiffs to show common ques-

tions or issues.

The district court found that Plaintiffs had provided evidence 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 corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence

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raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.

Dukes, 222 F.R.D. at 166. Discussing commonality, the district court alluded to the determinations Rule 23 requires in certifying a class. The court stated, “Rule 23(a)(2) requires that common questions of law or fact exist among class members.” Id. at 144. Recognizing this requirement of Rule 23, the district court went on to make reasoned determinations that commonality was met, concluding that “th[e] evidence more than satisfies plaintiffs’ burden to demonstrate commonality under Rule 23(a)(2). ” Id. at 145. The district court then detailed the four categories of commonality evidence to which we now turn. Id. We conclude, as explained in more detail below, that it was within the district court’s discretion, and in line with Falcon and the standard we have clarified today, to determine that the commonality prerequisite to class certification was satisfied. See Fed. R. Civ. P. 23(a)(2). 20

a. Evidence of a Common Policy of Discrimination

[13] Pursuant to Falcon, 457 U.S. at 161, Plaintiffs presented four categories of commonality evidence that the district court subjected to a “rigorous analysis”: (1) facts supporting the existence of company-wide policies and practices that, in part through their subjectivity, provide a potential conduit for discrimination; (2) expert opinions supporting the existence of company-wide policies and practices that likely include a culture of gender stereotyping; (3) expert sta-

20Of course, returning to the standard discussed above, if the district court had rejected Wal-Mart’s arguments regarding commonality solely because they overlapped with “merits issues,” that would have been error. However, as we explain in the following sections, the district court did not do this but, instead, conducted a “rigorous analysis” of the conflicting evidence presented on the commonality question and ultimately concluded that Plaintiffs raised “questions of law or fact common to the class. ” Fed. R. Civ. P. 23(a)(2); see Falcon, 457 U.S. at 161; Hanon, 976 F.2d at 509.

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tistical evidence of class-wide gender disparities attributable to discrimination; and (4) anecdotal evidence from class members throughout the country of discriminatory attitudes held or tolerated by management. See Dukes, 222 F.R.D. at 145-66. Wal-Mart contends this evidence is insufficient to suggest a common factual or legal question related to the existence of discrimination.

(1) Factual Evidence

As factual evidence, Plaintiffs presented evidence of the following: (1) uniform personnel and management structure across stores; (2) Wal-Mart headquarters’s extensive oversight of store operations, company-wide policies governing pay and promotion decisions, and a strong, centralized corporate culture; and (3) consistent gender-related disparities in every domestic region of the company. Such evidence supports Plaintiffs’ 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 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 managers’ deposition testimony; organizational charts; correspondence, memos, reports, and presentations relating to personnel policy and practice, diversity, and equal employment opportunity issues; documents describing the culture and history of the company; and a large body of social science research on the impact of organizational policy and practice on workplace bias.

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Dr. Bielby testified that he employed a social framework analysis to examine 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. ”21 In Dr. Bielby’s opinion, “social science research demonstrates that gender stereotypes are especially likely to influence personnel decisions when they are based on subjective factors, because substantial decisionmaker discretion tends to allow people to seek out and retain stereotyping-confirming information and ignore or minimize information that defies stereotypes. ” Id. at 153 (internal quotation marks omitted). Dr. Bielby concluded that: (1) WalMart’s centralized coordination, reinforced by a strong organizational culture, sustains uniformity in personnel policy and practice; (2) there are significant deficiencies in Wal-Mart’s equal employment policies and practices; and (3) Wal-Mart’s personnel policies and practices make pay and promotion decisions vulnerable to gender bias. See id. at 153-54.

The district court reviewed Plaintiffs’ and Wal-Mart’s competing claims as to Wal-Mart’s uniform culture and determined that “the evidence indicates that in-store pay and promotion decisions are largely subjective and made within a substantial range of discretion by store or district level managers, and that this is a common feature which provides a wide enough conduit for gender bias to potentially seep into the system.” Id. at 152. Having evaluated this evidence in detail, the court determined “that given the evidence regarding strong uniform culture and policies, the degree and impact of this practice is a significant question of fact common to the class as a whole. ” Id. at 153. Such a reasoned determination is what our standard for Rule 23 requires.

21For a description of the “social framework analysis,” see Melissa Hart & Paul M. Secunda, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 Fordham L. Rev. 37, 41-55 (2009).

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Wal-Mart vigorously challenges Dr. Bielby’s third conclusion as vague and imprecise because he concluded that WalMart is “vulnerable” to bias or gender stereotyping but failed to identify a specific discriminatory policy at Wal-Mart. Specifically, Wal-Mart contends that Dr. Bielby’s testimony does not meet the standards for expert testimony set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993), which held that a trial court must act as a “gatekeeper” in determining whether to admit or exclude expert evidence.

Wal-Mart made an identical argument to the district court and the district court properly rejected it. A close reading of the district court’s order demonstrates its correct understanding of its role at the Rule 23(a)(2) certification stage — to make factual determinations regarding evidence as it relates to common questions of fact or law but not to decide which parties’ evidence is ultimately more persuasive as to liability. The court stated, “Dr. Bielby presents enough of a basis, both in his review of the scientific literature and on the facts of the case, to provide a foundation for his opinions. ” Dukes, 222 F.R.D. at 154. The court correctly explained that whether the jury was ultimately persuaded by those opinions was a question on the merits. For the class certification, however, Dr. Bielby’s opinions, for which Wal-Mart did not challenge the methodology, raised a question “of corporate uniformity and gender stereotyping that is common to all class members. ” Id. We cannot say that considering Dr. Bielby’s opinions in this method was an abuse of discretion.

This conclusion is furthered by the fact that Wal-Mart did not (and does not) challenge Dr. Bielby’s methodology or contend that his findings lack relevance because they “do[ ] not relate to any issue in the case, ” Daubert, 509 U.S. at 591 (internal quotation marks omitted). Wal-Mart challenges only whether certain inferences can be persuasively drawn from his data. But because Daubert does not require a court to admit or exclude evidence based on its persuasiveness, but rather

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requires a court to admit or exclude evidence based on its scientific reliability and relevance, id. at 587-92 (relevance standard “is a liberal one, ” under which evidence is relevant if it has “ ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence’ ” (quoting Fed. R. Evid. 401)), testing Dr. Bielby’s testimony for “Daubert reliability” would not have addressed WalMart’s objections. It would have simply revealed what WalMart itself has admitted and courts have long accepted: that properly analyzed social science data, like that offered by Dr. Bielby, may support a plaintiff’s assertions that a claim is proper for class resolution. See Price Waterhouse v. Hopkins , 490 U.S. 228, 235-36, 255 (1989) (considering similar evidence offered by expert social psychologist).

[14] Accordingly, Wal-Mart’s contention that the district court was required to strike Dr. Bielby’s testimony under the Daubert test at the class certification stage, simply because the conclusion he reached seemed unpersuasive absent certain corroborating evidence, is misplaced.22 See Daubert, 509 U.S.

22We are not convinced by the dissent’s argument that Daubert has exactly the same application at the class certification stage as it does to expert testimony relevant at trial. Dissent at 6255. However, even assuming it did, the district court here was not in error. Thus we need not resolve this issue here.
In accepting Dr. Bielby’s social framework analysis, the district court stated:
The Court is further guided by Daubert v. Merrell Dow Pharm., Inc. (Daubert II) , 43 F.3d 1311, 1316 (9th Cir.1995), in which the Ninth Circuit stated 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.’ ” Id., quoting Daubert I, 509 U.S. 579, 113 S. Ct. 2786. The Ninth Circuit continued: “Our task, then, is to analyze not what the experts say, but what basis they have for saying it.” Daubert II, 43 F.3d at 1316. The Court is satisfied that Dr. Bi[e]lby’s opinion—while subject to critique—is based on

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at 595 ( “The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate.”). While a jury may ultimately agree with Wal-Mart that, in the absence of a specific discriminatory policy promulgated by Wal-Mart, it is not more likely than not, based solely on Dr. Bielby’s analysis, that Wal-Mart engaged in actual gender discrimination, that question must be left to the merits stage of the litigation (and presumably will not have to be decided as there will be other evidence). At the class certification

valid principles. Thus, it is sufficiently probative to assist the Court in evaluating the class certification requirements at issue in this case. Accordingly, Defendant’s motion to strike Dr. Bilby’s declaration is denied.
Dukes v. Wal-Mart, Inc. , 222 F.R.D. 189, 192 (N.D. Cal. 2004) ( “Dukes II”).
On this review, regardless of whether full Daubert review is required at the class certification stage, we cannot say that admitting Dr. Bielby’s social framework analysis was an abuse of discretion. The district court specifically considered Daubert’s applicability to Dr. Bielby and was within its discretion to limit its inquiry. As the district court observed, Dr. Bielby’s testimony could be admissible even without reaching “definitive[ ]” conclusions, because tentative rather than “conclusive determination[s]” are in “the nature of this particular field of science. ” Dukes, 222 F.R.D. at 154.
Other cases support this conclusion. The Third Circuit, citing IPO, has noted that when the plaintiffs’ ability to prove their case “is genuinely disputed, the district court must resolve it after considering all relevant evidence. Here [in Hydrogen Peroxide], the District Court apparently believed it was barred from resolving ” these expert disputes. Hydrogen Peroxide, 552 F.3d at 325. Unlike Hydrogen Peroxide and other cases Wal-Mart cites, in the present case the district court heard, rather than excluded, the bulk of the relevant evidence. As a general rule, “ ‘[d]istrict courts are not required to hold a Daubert hearing before ruling on the admissibility of scientific evidence,’ ” Millenkamp v. Davisco Foods Int’l, Inc., 562 F.3d 971, 979 (9th Cir. 2009) (quoting Jaros v. E.I. DuPont (In re Hanford Nuclear Reservation Litig. ), 292 F.3d 1124, 1138 (9th Cir. 2002)). Plaintiffs clearly established foundation for Dr. Bielby’s testimony and statistics. It was not an abuse of discretion for the district court not to exclude them, under Daubert or otherwise.

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stage, it is enough that Dr. Bielby presented scientifically reliable evidence tending to show that a common question of fact —i.e., “Does Wal-Mart’s policy of decentralized, subjective employment decision making operate to discriminate against female employees?”—exists with respect to all members of the class.23 This he did and, thus, we find no error in the district court’s acceptance of Dr. Bielby’s evidence to support a finding of commonality.

(3) Statistical Evidence

It is well established that plaintiffs may demonstrate commonality by presenting statistical evidence, which survives a “rigorous analysis,” sufficient to fairly raise a common question concerning whether there is class-wide discrimination. See Falcon, 457 U.S. at 159 n.15, 161; Caridad, 191 F.3d at 292;24 see also Stastny v. S. Bell Tel. & Tel. Co. , 628 F.2d

23As discussed below in Part II.A.2.b, this court and many others have held that “delegation to supervisors, pursuant to company-wide policies, of discretionary authority without sufficient oversight . . . gives rise to common questions of fact warranting certification of the proposed class. ” Caridad, 191 F.3d at 291, overruled on other grounds by IPO , 471 F.3d at 39-42; see Hnot, 241 F.R.D. at 210 (explaining that IPO did not overrule this aspect of Caridad); see also Staton, 327 F.3d at 955-56 (rejecting argument that “decisionmaking at Boeing is too decentralized to permit a class that combines plaintiffs from disparate locales ”); Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993) (upholding commonality finding where all of company’s plants “utilized the same subjective criteria in making personnel decisions ”); Cox v. Am. Cast Iron Pipe Co. , 784 F.2d 1546, 1557 (11th Cir. 1986) (holding that “ ‘[a]llegations of similar discriminatory employment practices, such as . . . [the] use of entirely subjective personnel processes that operated to discriminate, would satisfy the commonality and typicality requirements of Rule 23(a)’ ” (alterations in original) (quoting Carpenter v. Stephen F. Austin State Univ. , 706 F.2d 608, 617 (5th Cir. 1983))); Segar v. Smith, 738 F.2d 1249, 1276 (D.C. Cir. 1984) (explaining that “subjective criteria may well serve as a veil of seeming legitimacy behind which illegal discrimination is operating ”).
24See Hnot, 241 F.R.D. at 210 ( “Caridad held, in part, that class challenges to subjective employment practices, like other disparate treatment

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267, 278 (4th Cir. 1980) (recognizing that statistical data showing comparable disparities experienced by protected employees may indicate a policy or practice that commonly affects the class members and raises a common question concerning whether the pattern or practice is discriminatory).

[15] A careful reading of the district court’s treatment of the competing statistical evidence demonstrates that, in conducting its analysis, the district court followed the correct standard as explained in Falcon and our earlier cases, and clarified today.

Dr. Richard Drogin, Plaintiffs’ statistician, analyzed data at
a regional level. He ran separate regression analyses for each of the forty-one regions 25 containing Wal-Mart stores. 26 He
concluded that “there are statistically significant disparities

and disparate impact claims, may satisfy the commonality requirement. In re IPO did not even address this aspect of Caridad. . . . [I]t did not question Caridad’s holding that statistical evidence can demonstrate commonality in a challenge to subjective employment practices, which remains controlling authority.” (citation omitted)).
25Each region contains approximately 80 to 85 stores.
26Regression 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 purpose 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 inference 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 statistical tool . . . designed to isolate the influence of one particular factor — [e.g.,] sex—on a dependent variable—[e.g.,] salary. ” (internal quotation marks omitted)).

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between men and women at Wal-Mart in terms of compensation and promotions, that these disparities are wide-spread across regions, and that they can be explained only by gender discrimination.” Dukes, 222 F.R.D. at 154. Dr. Marc Bendick, Plaintiffs’ labor economics expert, conducted a “benchmarking” study comparing Wal-Mart with twenty of its competitors, concluding Wal-Mart promotes a lower percentage of women than its competitors. 27 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. 28 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 interchange of employees at the various facilities. See Kirkland v. N.Y. State Dep’t of Corr. Servs., 520 F.2d 420, 425 (2d Cir. 1975) (recognizing that the focus of analysis depends on the nature of a 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

27“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.” Dukes, 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 WalMart 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 WalMart at a similar rate. ” Id.
28This argument is unsurprising, and is the statistical argument similarly situated defendants make as a matter of course.

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company-wide control over Wal-Mart’s uniform compensation policies and procedures; (2) the dissemination of WalMart’s uniform compensation policies and procedures resulting from the frequent movement of store managers; or (3) Wal-Mart’s strong corporate culture. Dukes, 222 F.R.D. at 157.

In conducting its rigorous analysis of these claims, the district court first re-stated its standard of review. Its decision makes clear that the district court made determinations that Plaintiffs’ statistics raised common questions of fact or law only after it rigorously analyzed them, probing significantly behind the pleadings and resolving facts necessary to make determinations on Rule 23(a)(2).

Discussing the proper standard for evaluating the statistics, the district court said it rejected a full-blown merits evaluation of the evidence but had to “view[ ] the statistical evidence and testimony through the proper lens of the standards applicable to a class certification motion. ” Dukes, 222 F.R.D. at 155. Though noting it would not decide the actual merits of the claims, the court did “delve[ ] into the substance of the expert testimony . . . to the extent necessary to determine if it [wa]s sufficiently probative of an inference of discrimination to create a common question as to the existence of a pattern and practice of gender discrimination at Wal-Mart.” Id. This is the precise inquiry that cases such as IPO have required, and it clearly meets the standard we outline above, particularly given the depth of the district court’s review, the evidentiary posture of the case as a Title VII pattern and practice case, and the underlying procedural standard where the district court here was reviewing evidence under Rule 23(a)(2), to raise a common question, rather than, like the cases Wal-Mart cites, Rule 23(b)(3), to determine predominance. See Hnot, 241 F.R.D. at 210.

In addition to formulating a review that complied with Falcon and our precedent, the district court, contrary to Wal-

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Mart’s claims, did not improperly rely on out-of-circuit cases the Second Circuit overruled in IPO. Specifically, Wal-Mart cites Visa Check and Caridad as decisions IPO rejected, noting the district court’s supposed reliance on this reasoning renders its decision error. As an initial matter, the district court did not cite Visa Check at all. See Dukes, 222 F.R.D. 137 passim. While it did cite to Caridad, nothing about its citation to Caridad was erroneous.

The district court cited Caridad five times. Two instances of this reliance can be immediately set aside as unproblematic because they relied on Caridad’s holding that excessive subjectivity in corporate policies can contribute to a finding of commonality. Dukes, 222 F.R.D. at 149-50, 154. IPO neither addressed nor overruled this holding in Caridad, and it still remains “controlling authority” in the Second Circuit. Hnot, 241 F.R.D. at 210. A third citation to Caridad supported the district court’s statement that, “although some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage.” Dukes, 222 F.R.D. at 144 (internal quotation marks omitted) (citing Caridad, 191 F. 3d at 292). This statement is entirely consistent with Falcon, our precedent, and our ruling today. The two other citations to Caridad equally show that the district court did not adopt the “some showing” standard that the Second Circuit properly rejected. Instead, the district court refused to consider the merits—it would not conclusively find whether Wal-Mart had discriminated—but it analyzed the evidence to the extent, under Rule 23(a)(2), that it had to determine whether “there are questions of law or fact common to the class. ” Fed. R. Civ. P. 23(a)(2); Dukes, 222 F.R.D. at 143. 29

29The district court’s other two citations to Caridad supported its statements that, first, “[d]efendant’s arguments seek to engage the Court in a merits evaluation of the expert opinions. The Court rejects this approach, and views the statistical evidence and testimony through the proper lens

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[16] Critically, the district court did not shy away from issues overlapping with the merits; rather it devoted fifteen pages of its opinion to probing the parties’ statistics. The district court merely refused to decide the underlying merits themselves and examined evidence only to the extent necessary to satisfy itself under Rule 23(a)(2) that Plaintiffs raised common questions. In doing so, it joined dozens of other district courts in this circuit that have engaged the proper analysis, all using different wording, but all probing behind the pleadings to make determinations on the Rule 23 requirements. See, e.g., In re Cooper Cos. Sec. Litig. , 254 F.R.D. 628, 641 n.7 (C.D. Cal. 2009); Bishop v. Petro-Chem. Transp., LLC, 582 F. Supp. 2d 1290, 1305 (E.D. Cal. 2008); Alexander v. JBC Legal Group, P.C., 237 F.R.D. 628, 629 (D. Mont. 2006); Westways World Travel, Inc. , 218 F.R.D. at 230.

Turning to the factual assertions in Plaintiffs’ evidence, the court made a preliminary determination, based on the following “largely uncontested” statistics:

[W]omen working in Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time even for men and women hired into the

of the standards applicable to a class certification motion. ” Dukes, 222 F.R.D. at 155 & n. 21 (citing Caridad, 191 F.3d at 292). Second, “[t]he ultimate question of whether subjective decision-making and a uniform culture contribute to a nation-wide pattern of gender discrimination will, of course, be for a jury to decide. At this stage, however, these factors are apparent enough to support Dr. Drogin’s regional approach as at least a reasonable means of conducting a statistical analysis. ” Id. at 159 & n.29 (citing Caridad, 191 F.3d at 292-93). These are determinations of the type we require for Rule 23(a)(2) certification. Though we have used different language in clarifying the standard today, the district court examined the evidence and made a determination, over Wal-Mart’s evidence, that Plaintiffs’ evidence raised questions of law or fact common to the class. That is what Rule 23(a)(2), the Supreme Court, and we require.

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same jobs at the same time, that women take longer to enter into management positions, and that the higher one looks in the organization the lower the percentage of women.

Dukes, 222 F.R.D. at 155. Importantly, and as instructed by Falcon, these factual determinations were arrived at after looking beyond the pleadings to Plaintiffs’ expert’s deposition. Id.

Correctly noting that descriptive statistics do not address causation, the district court then analyzed not the pleadings, but Plaintiffs’ and Wal-Mart’s statistics, finding, “In short, all of Dr. Drogin’s regressions show that gender is a statistically significant variable in accounting for the salary differentials between female class members and male employees at WalMart stores.” Id. at 156.

The court specifically analyzed whether aggregation of statistics for regional units was proper or whether Wal-Mart was correct to insist upon a store-level evaluation. The district court first stated the relevant sub-standard: “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 interchange of employees, at the various facilities. ” Id. at 157 (citation omitted). It continued, “Dr. Drogin contends that it is proper to conduct the analysis on a regional level because the subjective decision-making in compensation and promotions takes place within parameters and guidelines that are highly uniform . . . . Plaintiffs also have shown, as discussed above, that the primary salary decision-makers, Store Managers, experience frequent relocation among the various stores. ” Id. at 157.

[17] On appeal, Wal-Mart contends that the district court erred by not finding Wal-Mart’s statistical evidence more persuasive than Plaintiffs’ evidence because, according to Wal-

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Mart, its analysis was conducted store-by-store. However, contrary to Wal-Mart’s characterization of its analysis, and the dissent’s concerns regarding statistical aggregation,30 WalMart’s own 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 substore level by comparing departments to analyze the pay differential between male and female hourly employees. 31 Moreover, our task here is to determine whether the district court abused its discretion in finding that, based on all the evidence presented, there existed common questions of fact sufficient to justify class certification. See Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005); Armstrong, 275 F.3d at 867. We are not to re-examine the relative strength or

30Contrary to the dissent’s characterization, the district court was cognizant of the possibility of aggregation problems in the data. Dukes, 222 F.R.D. at 155-59 & n.22. The dissent’s invocation of “Simpson’s Paradox” to discount Plaintiffs’ statistical evidence is not compelling, particularly at the class certification stage. See Dissent at 6253 n.12. First, Simpson’s Paradox is a problem of incorrect causation inferences as much as it is the result of an aggregation problem, see Judea Pearl, Causality: Models, Reasoning, and Inference 130 (2000) (noting that the study the dissent cites, while not “defective,” highlights “that no adjustment is guaranteed to give an unbiased estimate of causal effects, direct or indirect, absent a careful examination of the causal assumptions that ensure identification”), and the district court considered potential problems and causation inferences in its discussion of the competing regression analyses. See Dukes, 222 F.R.D. at 155-56 & n.22. Second, at trial, Wal-Mart is free to further argue the unpersuasiveness of Plaintiffs’ statistics, but lacking evidence showing a likelihood of a Simpson’s Paradox, and given the many causal factors the statistical analyses addressed, see id.; Marios G. Pavlides & Michael D. Perlman, How Likely is a Simpson’s Paradox , 63 Am. Statistician 226, 229-30 (2009), we find the district court properly considered Plaintiffs’ statistics probative after a rigorous analysis. See Falcon, 457 U.S. at 161; Dukes, 222 F.R.D. at 156-59.
31This 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.

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persuasiveness of the commonality evidence ourselves. Thus, even if we were to find, based on an independent review of the record, that Wal-Mart’s statistical evidence was more persuasive than Plaintiffs’—which we do not, in any event—this alone would not allow us to find that the district court improperly relied on Dr. Drogin’s testimony as a valid component of its commonality analysis or that the district court erred in its ultimate conclusion that the commonality prerequisite was satisfied. That the jury might later find Wal-Mart’s statistical evidence more persuasive does not detract from the district court’s determination, after extensive review, that Dr. Drogin’s regional analysis raises common issues appropriate for class adjudication.

Here, again, the district court followed the Supreme Court’s guidance to thoughtfully “probe behind the pleadings, ” Falcon, 457 U.S. at 160, and did not abuse its discretion when it relied on Dr. Drogin’s use and interpretation of statistical data as a valid component of its determination that Plaintiffs raised common questions. It considered Wal-Mart’s challenges to Dr. Drogin’s statistics and made the specific determination that “the Court is not persuaded that Dr. Drogin’s aggregated statistical analysis should be rejected because he did not choose to utilize the Chow test, ” as Wal-Mart had urged. Dukes, 222 F.R.D. at 158. In other words, for the purposes of class certification, the district court reasonably made the determination to credit Plaintiffs’ statistics.

Wal-Mart also claims the district court erred in determining that Wal-Mart provided little or no proper legal or factual challenge to Dr. Drogin’s analysis, 32 and that, contrary to Wal-Mart’s contention, Dr. Haworth’s Store Manager survey evidence—which was stricken for failing to satisfy the stan-

32For example, Wal-Mart maintains that the district court erred by not requiring Dr. Drogin to perform a “Chow test” to determine whether data could be properly aggregated. We have not found a single case suggesting or requiring use of such a test.

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dards of Rules 702 and 703 of Evidence 33 —did not undermine or contradict Dr. Drogin’s evidence.

In rejecting the inclusion of Wal-Mart’s Store Manager surveys as a challenge to Dr. Drogin’s statistics because they were not based on a scientifically valid reasoning or methodology, Dukes II, 222 F.R.D. at 197-98 (discussing Rules 702 and 703), see Daubert, 509 U.S. at 592-93, the court noted that even if the evidence were included, “[t]he survey would not provide sufficient additional weight to Defendant’s challenge to Dr. Drogin’s analysis to sway the Court from its conclusion that his testimony supports an inference of discrimination, and thus the existence of substantial questions common to the class, ” Dukes II, 222 F.R.D. at 198 n.9 (emphasis added). In so ruling, the district court went even further into the merits than necessary to make a reasoned, justifiable determination, after proper review under the correct standard, that Plaintiffs’ claims were appropriate for class adjudication due to common questions.

Thus, because Dr. Drogin adequately explained, and the district court rigorously analyzed, why his statistical method best reflected the alleged discrimination, the court did not abuse its discretion when it credited Dr. Drogin’s analysis of statistical evidence of common discrimination questions. Nor did the district court abuse its discretion when it concluded

33In 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. 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. InterTel Techs., 244 F.3d 1167, 1179 n.8 (9th Cir. 2001) (recognizing that the appellant waived a claim by failing to raise it in her briefs).

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that Dr. Drogin’s analysis supported Plaintiffs’ contention that there is a common core of facts flowing from Wal-Mart’s corporate structure and policies that affects class members generally with regard to their discrimination claims. While Plaintiffs and Wal-Mart disagree on whose findings are more persuasive, the disagreement is not one of whether Plaintiffs have asserted “common questions of law or fact.” Falcon, 457 U.S. at 157, 159. The disagreement is the common question, and deciding which side has been more persuasive is an issue for the next phase of the litigation. Requiring even more findings and further analysis from the district court would be to force a trial on the merits at the certification stage.

Finally, and discussed further below, the district court’s review of statistics showing discrimination regarding promotions was also not an abuse of discretion. Plaintiffs and Defendant disagree over whether Dr. Drogin’s analysis of internal promotion data was proper. Specifically, both sides agreed that Wal-Mart’s actual applicant flow data for promotions during the class period was limited and contained significant gaps. Dukes, 222 F.R.D. at 162. Dr. Drogin’s statistics estimated the applicant flow by “tabulating ‘the incumbents in historical feeder jobs for each promotion.’ ” Id. Wal-Mart argued that the data, “while limited, is nonetheless sufficient to justify an extrapolation for all job openings during the entire class period.” Id.

The district court, addressing this statistical dispute, found Plaintiffs’ statistics “sufficient to create an inference of discrimination.” Id. at 164. In doing so, the district court found Dr. Drogin’s reasoning and methodology valid and applicable in the case. While the court noted in passing that Dr. Drogin’s statistics were “reasonable,” the court also, and more appropriately, stated that “it is well recognized that where actual applicant flow data is inadequate or unavailable, other measures of applicant flow—including but not limited to “feeder pools”—are deemed acceptable so long as they are used in a reliable manner.” Id. at 162-63. In doing so the district court

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cited an evidence treatise, Ninth Circuit precedent, and a district court case that had accepted the same type of feeder pool methodology in a dispute of the very same experts—Dr. Drogin and Dr. Haworth. Id. at 163 & n.37 (citing Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1185-86 (9th Cir. 2002); R. Paetzold and S. Willborn, The Statistics of Discrimination §§ 4.02-4.04 (2002); Stender v. Lucky Stores, Inc. , 803 F. Supp. 259, 333-34 (N.D. Cal. 1992)).

Thus, properly considering Dr. Drogin’s statistics, the court made a determination on the applicant pool data. It found that “Defendant’s assertion that its approach is necessarily superior does not withstand scrutiny. Rather, Defendant’s arguments, which go to the weight of the evidence [i.e., the persuasiveness on the merits], merely highlight the presence of a significant issue affecting all class members which supports, rather than defeats, granting class certification. ” Id. at 164. This determination was thus made after a rigorous analysis of the parties’ statistical claims.

[18] In short, the district court stated the legal standard, analyzed Plaintiffs’ and Wal-Mart’s competing claims to the propriety of aggregating statistics on a regional level and addressing Wal-Mart’s missing applicant flow data, noted Plaintiffs have “shown” reasons to accept their statistics, dismissed Wal-Mart’s statistical challenges, demonstrated these finding were supported by relevant Ninth Circuit precedent (and an identical dispute involving the same two experts), rejected Wal-Mart’s reliance on a district court case purportedly explaining why the sub-store statistical analysis was proper, and, finally, determined that at the class certification stage all of this analysis was sufficient to support Dr. Drogin’s analysis and raise questions of law or fact common to the class. This searching analysis was solid, well founded and in no way an abuse of discretion.

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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 convincingly to life.” Teamsters, 431 U.S. at 339; see also Rudebusch v. Hughes , 313 F.3d 506, 517 (9th Cir. 2002). WalMart contends that the district court erred by concluding that the anecdotal evidence, presented by Plaintiffs in the form of sworn declarations, supported a finding of commonality. 34 Wal-Mart maintains that the declarations depict a handful of “widely divergent” events that cannot be deemed probative or representative of discrimination in pay or management-track promotions.

In their declarations, the potential class members testified to being paid less than similarly situated men, being denied or delayed in receiving promotions in a disproportionate manner 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 district court credited this evidence.

[19] Wal-Mart argues that 120 declarations cannot sufficiently represent a class of this size. However, we find no authority requiring or even suggesting that a plaintiff class submit a specific number of declarations for such evidence to have any value. Moreover, the district court did not state that this anecdotal evidence provided sufficient proof to establish commonality by itself, but merely noted such evidence provides support for Plaintiffs’ contention that commonality is present. See Dukes, 222 F.R.D. at 166 ( “This anecdotal evidence, in combination with the other evidence previously discussed, further supports an inference that [Wal-Mart’s]

34Plaintiffs submitted declarations from each of the class representatives, as well as 114 declarations from putative class members around the country. See Dukes, 222 F.R.D. at 165.

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policies and procedures have the effect of discriminating against Plaintiffs in a common manner. ”).35 Because the com-
bination of these declarations and Plaintiffs’ other evidence,
discussed below, raise an inference of common discriminatory
experiences, the district court did not abuse its discretion when it considered Plaintiffs’ anecdotal evidence. 36

Finally, in arguing against certification based on affidavits, Plaintiffs’ personal allegations, statistics, and expert testimony, the dissent intersperses references of Falcon immediately with discussion of Cooper v. Federal Reserve Bank, 467 U.S. 867, 879 (1984), claiming “individual stories do not constitute significant proof that Wal-Mart has adopted a general policy of discrimination or that such a policy prevails ” at Wal-Mart. Dissent at 6250. This criticism, and particularly its temporary suspension of consideration of the statistical evidence, is indicative of the dissent’s repeated attempts to go beyond the Supreme Court’s concern with the need for “more

35Of course, the district court made no finding that Plaintiffs’ anecdotal declarations alone would raise an inference of common discriminatory experiences. Therefore, contrary to the dissent’s mischaracterization of our holding, Dissent at 6244-45, this case does not present the opportunity for us to consider, let alone affirm, such a hypothetical finding.
36The dissent’s accusation that both we and the district court are playing the “proverbial shell game,” is unpersuasive given the weight of the evidence the district court considered. See Dissent at 6259. Not surprisingly, the dissent’s implication that a single form of evidence must, by itself, be able to support a commonality finding to satisfy the standard of significance set forth in Falcon, cites no authority for its proposition. Id. Even under a preponderance of the evidence standard, see, e.g., Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc. , 546 F.3d 196, 202 (2d Cir. 2008), the district court’s review here would have been sufficient, finding Plaintiffs’ “evidence more than satisfies plaintiffs’ burden to demonstrate commonality under Rule 23(a)(2).” See Dukes, 222 F.R.D. at 143, 145 (“The party seeking certification must provide facts sufficient to satisfy Rule 23(a) and (b) requirements. In turn, the district court must conduct a rigorous analysis to determine that the prerequisites of Rule 23 have been met. If a court is not fully satisfied, certification should be refused .” (citations omitted)).

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precise pleadings” in class actions, Falcon, 457 U.S. at 16061 (citing Johnson, 417 F.2d at 1125), and the Court’s command that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” id. at 160, in an effort to reframe the question as one on whether Plaintiffs can actually succeed on the merits. Cf. Eisen, 417 U.S. at 177-78 (explaining that the plaintiffs’ likelihood of success on the merits is not part of deciding whether certification is proper).

Contrary to the dissent’s proposed standard, Plaintiffs here need not “establish a prima facie case ” on the merits. Dissent at 6263. Class certification in Cooper had already taken place and, in fact, the case had gone through a trial. 467 U.S. at 872. The decision for the Supreme Court was whether the class’s loss at trial precluded a class member from maintaining his own, separate civil action subsequent to the loss. Id. at 869. This is an entirely different posture than the present case presents, and the standard for winning a claim under McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), is, of course, different than that for certifying a class action. See Cooper, 467 U.S. at 875-76; Falcon, 457 U.S. at 160-61.

b. Subjective Decision Making

As discussed above, the district court found substantial evidence suggesting common pay and promotion policies among Wal-Mart’s many stores. See Dukes, 222 F.R.D. at 148-51. 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 conclusion, contending that managers’ discretionary authority does not support a finding of commonality because “[d]ecentralized, discretionary decisionmaking is not inherently discriminatory.”

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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) (internal quotation marks omitted). Wal-Mart is correct that discretionary decision making by itself is insufficient to meet Plaintiffs’ burden. The district court recognized this, noting that managerial discretion is but one of several factors that supported a finding of commonality. See Dukes, 222 F.R.D. at 149-50 ( “And while the presence of excessive subjectivity, alone, does not necessarily create a common question of fact, where, as here, such subjectivity is part of a consistent corporate policy and supported by other evidence giving rise to an inference of discrimination, courts have not hesitated to find that commonality is satisfied.”).

Wal-Mart is incorrect, however, that decentralized, subjective decision making cannot contribute to a common question of fact regarding the existence of discrimination. See Falcon, 457 U.S. at 159 n.15. Indeed, courts from around the country have found “[a]llegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, [sufficient to] satisfy the commonality and typicality requirements of Rule 23(a).” Shipes v. Trinity Indus. , 987 F.2d 311, 316 (5th Cir. 1993); see also supra note 7 and cases cited therein.

[20] Plaintiffs produced substantial evidence of WalMart’s centralized firm-wide culture and policies, see Dukes, 222 F.R.D. at 151-54, thus providing a nexus between the subjective decision making and the considerable statistical evidence demonstrating a pattern of lower pay and fewer 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) (subjective decision making may give rise to an inference of discrimination where evidence shows a nexus between decision making and discrimination). Therefore, for the reasons stated above, there was no abuse of

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discretion in determining that Wal-Mart’s subjective decisionmaking policy provides support for Plaintiffs’ contention that commonality exists among potential class members.

c. Commonality Conclusion

[21] The district court’s analysis of Rule 23(a)(2) complies with the standard the Supreme Court has set down and we have explained today for a district court adjudicating a motion for class certification. Plaintiffs’ factual evidence, expert opinions, statistical evidence, and anecdotal evidence provide sufficient support to raise the common question whether WalMart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII. Evidence of Wal-Mart’s subjective decision-making policies suggests a common legal or factual question regarding whether WalMart’s policies or practices are discriminatory. Many other courts have reached the same conclusion based on similar evidence. See, e.g., Staton, 327 F.3d at 955; Shipes, 987 F.2d at 316; Cox v. Am. Cast Iron Pipe Co. , 784 F.2d 1546, 1557 (11th Cir. 1986); Segar v. Smith, 738 F.2d 1249, 1276 (D.C. Cir. 1984).

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 typicality determination. However, because Wal-Mart refers, somewhat obliquely, to the typicality factor in its opening brief and because typicality and commonality are similar and tend to merge, see Falcon, 457 at 157 n.13,37 we conclude that

37Although the “commonality and typicality requirements of Rule 23(a) tend to merge,” see Falcon, 457 U.S. at 157 n.13, each factor serves a 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 Newberg on Class Actions § 3:13, at 317.

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Wal-Mart did not waive its opportunity to challenge the district court’s findings with regard to typicality.

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. As discussed below, to satisfy the typicality prerequisite, Plaintiffs must demonstrate that their claims and their class representatives are sufficiently typical of the class.

a. Plaintiffs’ Claims Are Sufficiently Typical

Rule 23(a)(3) requires that “the claims or defenses of the representative parties 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 identical.” 150 F.3d at 1020; see also Staton, 327 F.3d at 957 (stating that “a class representative [from each job category] for each type of discrimination claim alleged . . . is not necessary”).

Thus, we must consider whether the injury allegedly suffered by the named plaintiffs and the rest of the class resulted from the same allegedly discriminatory practice. See Staton, 327 F.3d at 957 . Even though individual employees in different stores with different managers may have received different levels of pay or may have been denied promotion or promoted at different rates, because the discrimination they claim to have suffered occurred through alleged common practices—e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping—the district court did not abuse its discretion by finding that their claims are sufficiently typical to satisfy Rule 23(a)(3).

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b. Plaintiffs’ Representatives Are Sufficiently Typical of the Class

Typicality requires that the named plaintiffs be members of the class they represent. See Falcon, 457 U.S. at 156. There is no dispute that the class representatives are “typical” of the 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 instore managers because only one of the class representatives holds a salaried management position, and she holds a somewhat low-level position.

However, because all female employees faced the same alleged discrimination, the lack of a class representative for each management category does not undermine Plaintiffs’ certification goal. See Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994) (An employee can challenge discrimination in “different job categories where the primary practices used to discriminate in the different categories are themselves similar. While it may be prudent to have the class divided into sub-classes represented by a named plaintiff from each of the differing job categories, it would not be necessary to the validity of the class certification to do so. ”); Paxton v. Union Nat’l Bank, 688 F.2d 552, 562 (8th Cir. 1982) ( “Typicality is not defeated because of the varied promotional opportunities at issue, or the differing qualifications of the plaintiffs and class members.”).

In addition, because the range of managers in the proposed class is limited to managers working in Wal-Mart’s stores and excludes those at regional or national offices, it is not an excessively diverse class; a named plaintiff occupying a lower-level, salaried, in-store management position is sufficient to satisfy the “permissive” typicality requirement. Staton, 327 F.3d at 957 (recognizing that, “ ‘[u]nder the rule’s permissive standards,’ ” plaintiffs are not required to offer a

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class representative for each type of discrimination claim alleged (quoting Hanlon, 150 F.3d at 1020)).

[22] Because Plaintiffs’ claims and Plaintiffs’ representatives are sufficiently typical of the class, the district court acted within its discretion when it found that Plaintiffs satisfied the typicality prerequisite.

4. Adequate Representation

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 v. Gleich , 318 F.3d 937, 955 (9th Cir. 2003).

Before the district court, Wal-Mart argued that Plaintiffs cannot satisfy this factor because of a conflict of interest between female in-store managers who are both plaintiff class members and decision-making agents of Wal-Mart. Relying on Staton, the district court recognized that courts need not deny certification of an employment class simply because the class includes both supervisory and non-supervisory employees. See Dukes, 222 F.R.D. at 168; see also Staton, 327 F.3d at 958-59. This decision was not an abuse of discretion. Finally, because Wal-Mart does not challenge the district court’s finding that Plaintiffs’ class representatives and counsel are adequate, we need not analyze this factor.

5. Commonality, Typicality, and Manageability of Promotion Claims

The district court certified Plaintiffs’ promotion claims for injunctive and declaratory relief and punitive damages, but concluded that “manageability concerns” required that “any

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lost pay remedy on Plaintiffs’ promotion claim would be limited to that subset of the class for whom objective applicant data exists.” Dukes, 222 F.R.D. at 183. Wal-Mart objects to the certification of Plaintiffs’ promotion claims, even with this limitation, on commonality and manageability grounds. Plaintiffs, on the other hand, object to the district court’s limitation of eligibility for back pay to positions for which objective applicant data exist.

[23] Title VII pattern and practice class actions frequently include both salary and promotion claims. See, e.g., Bazemore v. Friday, 478 U.S. 385, 406 (1986) (per curiam); Cooper, 467 U.S. at 870. As discussed above, the district court found that Plaintiffs here have provided evidence sufficient to support their contention that company-wide corporate practices and policies—including excessive subjectivity in personnel decisions, gender stereotyping, and maintenance of a strong corporate culture—affected both compensation and promotion of all Plaintiffs in a common manner. Dukes, 222 F.R.D. at 166. Although there may be some variation among individual promotion decisions, variation does not prevent class certification of common issues of fact. See Hanlon, 150 F.3d at 1019 (“Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be common to satisfy the rule.”). Given its findings regarding Wal-Mart’s companywide promotion policies and minimum guidelines, see Dukes, 222 F.R.D. at 148-49, the district court did not abuse its discretion by concluding that there was a sufficient common factual basis among putative class members’ promotion claims to satisfy Rule 23(a)(2).

[24] We also affirm the district court’s conclusion that a back pay remedy for promotion claims would be manageable only “with respect to those positions for which objective applicant data is available to document class member interest.” Dukes, 222 F.R.D. at 183. Wal-Mart’s extensive database containing information on each employee individually with respect to job history, seniority, job review ratings, and

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many other factors, see id. at 183-85, would enable a determination of each class member’s qualifications for promotion without the need for potentially unmanageable individualized hearings. The district court did not abuse its discretion by limiting eligibility for back pay, however, because allowing class members to demonstrate post hoc their previous interest in promotions might indeed be unmanageable. See id. at 181-82.

6. Rule 23(a) Conclusion

[25] Based on the evidence before the district court, which it rigorously analyzed pursuant to Falcon, 457 U.S. at 161, and the standard herein described, the district court did not abuse its discretion when it found that the Rule 23(a) elements were satisfied.

B. Rule 23(b)

As mentioned earlier, Plaintiffs moved to certify the class under Rule 23(b)(2), which requires showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole. ” Fed. R. Civ. P. 23(b)(2).38 The district court agreed with Plaintiffs. See Dukes, 222 F.R.D. at 170-71. Wal-Mart argues the district court merely “paid lip service” to Rule 23(b)(2) and erred in certifying the class under Rule 23(b)(2) because claims for monetary relief predominate over claims for injunctive and declaratory relief.

[26] 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) advisory committee’s note to 1966 amends., 39 F.R.D. 69, 102; see also Zinser, 253 F.3d at 1195

38The purported class need only satisfy one of Rule 23(b)’s prongs to be sustainable. See Zinser, 253 F.3d at 1186.

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(“Class certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory or injunctive.”). An interpretation of Rule 23(b)(2) that prevented any claim for monetary relief would render this advisory committee requirement redundant or irrelevant.

We first turn to the appropriate standard for determining when monetary relief “predominates” over declaratory and injunctive relief and therefore precludes certification of a Rule 23(b)(2) class. We have previously joined the Second Circuit in adopting a test that focuses on the plaintiffs’ subjective intent in bringing a lawsuit. See Molski, 318 F.3d at 950; Robinson v. Metro-North Commuter R.R. Co. , 267 F.3d 147, 164 (2d Cir. 2001). In contrast, several other circuits use the “incidental damages standard ” that was first enunciated by the Fifth Circuit in Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 415-16 (5th Cir. 1998). See, e.g., Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 646-51 (6th Cir. 2006); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir. 2001); Lemon v. Int’l Union of Operating Eng’rs Local No. 139 , 216 F.3d 577, 580-81 (7th Cir. 2000). Under the Allison approach, monetary relief predominates over other forms of relief “unless it is incidental to requested injunctive or declaratory relief.” See Allison, 151 F.3d at 415.

We see no need to employ either approach, which are both, essentially, glosses on the text of the Advisory Committee’s Note’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages. ” Merriam-Webster defines “predominant” as “having superior strength, influence, or authority: prevailing.” Merriam-Webster’s Collegiate Dictionary 978 (11th ed. 2004). To be certified under Rule 23(b)(2), therefore, a class must seek only monetary damages that are not “superior [in] strength, influence, or authority ” to injunctive and declaratory relief.

An analysis of a plaintiff’s subjective intent in bringing a suit, as required by the standard set forth in Molski, is, at best,

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an incomplete method for answering this question. By eschewing consideration of the practical impact of a request for monetary relief on the litigation itself, the sole emphasis on the plaintiff’s intent ignores important indicators of the “strength, influence, [and] authority ” of a request for specific monetary relief. In short, Molski’s focus on subjective intent and its concomitant failure to consider the pragmatic impact of a request for monetary relief render it fatally flawed.

The Molski approach is troubling for the additional reason that it requires courts to engage in a nebulous and imprecise inquiry into the plaintiffs’ intent in bringing a particular suit. Only in those cases in which a request for injunctive relief is obviously a ruse will this inquiry provide a clear answer. More often than not, we suspect that the answer will be equivocal and, therefore, essentially an entirely discretionary one.

Although the standard set forth in Allison is an objective one that does consider the practical effect of a request for monetary damages, it suffers from a different deficiency. By requiring monetary relief to be no more than “incidental” to injunctive or declaratory relief, the Allison approach is in direct conflict with the text of the Advisory Committee’s Note, which forbids certification under Rule 23(b)(2) if monetary relief is the “predominant” form of relief. See 151 F.3d at 412-16. “Predominant” is not synonymous with “more than incidental.” As a result, the Allison approach would preclude the certification of some Rule 23(b)(2) classes that the drafters of the Rules intended to allow.

Allison’s standard also “usurps the district courts’ authority

granted by Rule 23 . . . to rigorously analyze the case, probe

behind the pleadings if necessary, and exercise its own discre-

tion within the framework of the rules in determining whether

the action is to be so maintained. ” Id. at 431 (Dennis, J., dis-

senting); see also Robinson, 267 F.3d at 165 (describing Alli-

son’s incidental damages test as a

“one-size-fits-all

approach”). Such a limitation is in direct conflict with the

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Federal Rules’ intention that district courts be afforded discretion. The predominance test suggested by the Advisory Committee’s Note, by contrast, is consistent with the wide discretion given to district courts in making the class certification decision and accomplishing Title VII’s remedial objectives.

[27] To the extent Molski required the district court to inquire only into the intent of the plaintiffs and focus primarily on determining whether reasonable plaintiffs would bring suit to obtain injunctive or declaratory relief even in the absence of a possible monetary recovery, see Molski, 318 F.3d at 950 & n.15, it is overruled. In light of the inadequacy of both the Allison and Molski approaches, we adopt instead the standard that Rule 23(b)(2)’s drafters straightforwardly indicated: Rule 23(b)(2) certification is not appropriate where monetary relief is “predominant” over injunctive relief or declaratory relief. To determine whether monetary relief predominates, a district court should consider, on a case-by-case basis, the objective “effect of the relief sought ” on the litigation. See Allison, 416 F.3d at 416. Factors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature—as measured by recovery per class member—raise particular due process and manageability concerns would all be relevant, though no single factor would be determinative.

[28] Under this standard, as discussed more fully below, the district court’s decision to include claims for back pay in a class certified under Rule 23(b)(2) was not an abuse of its discretion. On the other hand, the district court did abuse its discretion by failing to analyze whether certifying Plaintiffs’ punitive damages claims under Rule 23(b)(2) caused monetary damages to predominate, notwithstanding its decision to require notice and an opportunity for Plaintiffs to opt-out of the punitive damages claims.

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1. Wal-Mart’s 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 conduct be generally applicable to the class. Wal-Mart’s contention that its “unrebutted” statistics demonstrate that there is no evidence of pervasive discrimination that would justify injunctive relief and that, therefore, the “challenged conduct” does not affect all members, is simply not persuasive. As explained above, Wal-Mart’s evidence was rebutted by Plaintiffs to the extent that Plaintiffs’ evidence and theories remain viable at this pre-merits analysis stage. Further, the issue before us is whether monetary relief predominates, not whether Plaintiffs will ultimately prevail.

2. The Large Size of the Class Does Not Undermine Plaintiffs’ Claim That Injunctive and Declaratory Relief Predominate

Wal-Mart contends that monetary claims necessarily predominate because this case involves claims that may amount to billions of dollars. However, such a large amount is principally a function of Wal-Mart’s size, and the predominance test turns on the primary goal and nature of the litigation—not the theoretical or possible size of the total damages award. A comparison between the amount of monetary damages available for each plaintiff and the importance of injunctive and declaratory relief for each is far more relevant to establishing predominance than the total size of a potential monetary award for the class as a whole. As the district court stated, “focusing 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 purposes of Title VII. ” Dukes, 222 F.R.D. at 171. Because Wal-Mart has not shown that the size of the mone-

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tary request undermines Plaintiffs’ claim that injunctive and declaratory relief predominate, we find that Wal-Mart’s argument fails.

3. Request for Back Pay Does Not Undermine Plaintiffs’ Claim That Injunctive and Declaratory Relief Predominate

Wal-Mart asserts that Plaintiffs’ request for back pay weighs against certification because it proves that claims for monetary relief predominate. The district court reasoned that back pay “is recoverable as an equitable, make-whole remedy in employment class actions notwithstanding its monetary nature.” Dukes, 222 F.R.D. at 170. Wal-Mart contends that the district court erred by failing to recognize that back pay, whether “equitable” or not, is still a form of monetary relief.

Wal-Mart’s argument is without merit. Although the circuits have adopted different tests for determining when monetary relief predominates, every circuit to have addressed the issue has acknowledged that Rule 23(b)(2) does allow for some claims for monetary relief. 39 More to the point, it is equally well accepted, even by circuits that are generally restrictive in certifying classes seeking monetary damages under Rule 23(b)(2), that a request for back pay in a Title VII case is fully compatible with the certification of a Rule

39See, e.g., Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 331 (4th Cir. 2006) (awards of back pay do not predominate over the injunctive remedies because their calculation generally involves relatively uncomplicated factual determinations); In re Monumental Life Ins. Co. , 365 F.3d 408, 418 (5th Cir. 2004) (same); Cooper v. S. Co., 390 F.3d 695, 720 (11th Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc. , 546 U.S. 454, 457-58 (2006) (noting that back pay can be awarded in a case certified under Rule 23(b)(2)); see also Reeb , 435 F.3d at 650 (same); Coleman v. GMAC, 296 F.3d 443, 449 (6th Cir. 2002) (same); Robinson, 267 F.3d at 164 (holding compensatory or punitive damages sometimes permissible under Rule 23(b)(2)); Thomas v. Albright, 139 F.3d 227 (D.C. Cir. 1998) (upholding a settlement in which claims for compensatory damages were included in a class certified under Rule 23(b)(2)).

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23(b)(2) class. See, e.g., Allison, 151 F.3d at 415; see also Thorn, 445 F.3d at 331; Cooper, 390 F.3d at 720; Coleman, 296 F.3d at 449. As the Fifth Circuit stated in Allison, “final injunctive relief [was] appropriate and the defendant’s liability for back pay [was] rooted in grounds applicable to all members of the defined class. Under these circumstances the award of back pay, as one element of the equitable remedy , conflicts in no way with the limitations of Rule 23(b)(2).” 151 F.3d at 415 (internal quotation marks omitted). 40

Courts have provided two justifications for the conclusion that a request for back pay is consistent with certification under Rule 23(b)(2). First, appellate courts have noted that, “in the Title VII context, awards of backpay do not predominate over the injunctive remedies available because the ‘calculation of back pay generally involves [relatively un]complicated factual determinations and few[ ] individualized issues.’ ” Thorn, 445 F.3d at 331-32 (alterations in original) (quoting Coleman, 296 F.3d at 449). The second rationale is that back pay is “an integral component of Title VII’s ‘make whole’ remedial scheme,” see Allison, 151 F.3d at 415, a scheme to which the drafters of the Federal Rules of Civil

40Athough some circuits have held that a request for back pay technically weighs on the monetary side of the scale, even though it is also an equitable form of relief, none has held that this prevents requests for back pay from being certified under Rule 23(b)(2). See, e.g., Thorn, 445 F.3d at 3332 (“Rule 23(b)(2) class certification is proper in the Title VII context not because backpay is an equitable form of relief, but because injunctive or declaratory relief predominates despite the presence of a request for back pay.”); Eubanks v. Billington, 110 F.3d 87, 95 (D.C. Cir. 1997); see also In re Monumental Life Ins. Co. , 365 F.3d at 418 ( “[E]quitable monetary remedies are less likely to predominate over a class’s claim for injunctive relief, but this has more to do with the uniform character of the relief rather than with its label. ”).
We need not decide whether to adopt the view that a request for equitable relief such as back pay weighs against certification because here, even assuming without deciding that it does, Plaintiffs’ request for back pay does not predominate over their request for the injunctive and declaratory relief and therefore does not prevent certification under Rule 23(b)(2).

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Procedure clearly intended Rule 23(b)(2) to apply. Fed. R. Civ. P. 23(b)(2) advisory committee’s note to 1966 amends., 39 F.R.D. at 102 (stating that the principal category of cases certifiable under Rule 23(b)(2) are “actions in the civil-rights field where a party is charged with discriminating unlawfully against a class”).

We find this reasoning persuasive and therefore join the
consensus view that a request for back pay in a Title VII case
is fully consistent with the certification of a Rule 23(b)(2) class action.41 Accordingly, we hold that the district court did

41The dissent claims that “the majority misses the point ” in citing Coleman for the Sixth Circuit’s statement “that back pay is a permissible remedy in a Rule 23(b)(2) class, ” 296 F.3d at 449, because “the issue is not that plaintiffs seek back pay, ” but whether “individualized treatment makes class-wide relief improper. ” Dissent at 6275 n.28. While it is true that the Sixth Circuit rejected certification of the class in Coleman, it did so by distinguishing the plaintiff’s claim for back pay and compensatory damages from previous cases that upheld certification of a class under Rule 23(b)(2) that sought back pay but not compensatory damages. Id. at 449 (“[C]alculation of back pay generally involves less complicated factual determinations and fewer individualized issues. ”). Further, the Coleman court took issue with the plaintiff’s own calculations of compensatory damages, which she sought to calculate “by reference to the markup [on a car loan] charged to each individual member of the class. ” Id. Given that Plaintiffs here are not seeking compensatory damages, and that, unlike here, there was no way in Coleman to calculate damages other than an individualized framework that, in fact, the plaintiff proposed, we find Coleman instructive for its statement “that back pay is a permissible remedy in a Rule 23(b)(2) class.” Id. (citing Alexander v. Aero Lodge No. 735, 565 F.2d 1364, 1372 (6th Cir. 1977) ( “A request for back pay does not preclude certification under [23(b)(2)]. ”))
The dissent’s claim of error is equally misguided to Thorn where the concern with individualized inquiries related to the subjective state of mind requirement for the Fourth Circuit’s accrual rule for a statute of limitations. See Thorn, 445 F.3d at 317, 320. The Fourth Circuit addressed an earlier ruling in apparent conflict by explaining the previous case had dealt with constructive notice and was thus amenable to class resolution, but under the subjective, actual notice claim presented in Thorn there was no way around individualized inquiries. Id. at 325. Here, back pay and other

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not abuse its discretion when it concluded, like many courts before it, that this discrimination class action was certifiable under Rule 23(b)(2) notwithstanding Plaintiffs’ prayer for back pay relief.

4. Monetary Relief May Predominate With Respect to Plaintiffs’ Bifurcated Punitive Damages Claims

In determining whether “appropriate final relief relates exclusively or predominantly to money damages, ” Fed. R. Civ. P. 23(b)(2), advisory committee’s note to 1996 amends., 39 F.R.D. at 102, claims for punitive damages weigh against certification under Rule 23(b)(2) because punitive damages are, of course, neither injunctive nor declaratory relief. The view that punitive damages can never be awarded consistent with Rule 23(b)(2), however, has not been adopted by this circuit.42 On the other hand, this court also has not approved

claims can be calculated on a class-wide basis, and because this is a pattern and practice case, discrimination must be shown at a group level. See Domingo v. New England Fish Co. , 727 F.2d 1429, 1444 (9th Cir. 1984) (per curiam); infra notes 49 and 53. Further, the Thorn court, in discussing Title VII cases, stated that “in the Title VII context, awards of back pay do not predominate over the injunctive remedies available because the calculation of back pay generally involves relatively uncomplicated factual determinations and few individualized issues . . . . Rule 23(b)(2) class certification is proper in the Title VII context not because back pay is an equitable form of relief, but because injunctive or declaratory relief predominates despite the presence of a request for back pay. ” Thorn, 445 F.3d at 331-32 (brackets, citation, and internal quotation marks omitted). Again, given these statements and distinguishing contexts, we find Thorn supportive of our conclusion that a request for back pay in a Title VII case is fully consistent with the certification of a Rule 23(b)(2) class action.
42Neither Williams v. Owens-Illinois, Inc. , 665 F.2d 918, 928-29 (9th Cir. 1982), nor Zinser, 253 F.3d at 1195-96, supports Wal-Mart’s argument that this circuit will not certify a class action that involves punitive damages. Rather, this court merely held that it was not an abuse of discretion to deny class certification based on the specific facts presented in

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class certification under Rule 23(b)(2) involving the potential for substantial punitive damages.

To decide whether certification under Rule 23(b)(2) is appropriate, per the standard described in Part II, a district court must squarely face and resolve the question of whether the monetary damages sought by the plaintiff class predominate over the injunctive and declaratory relief. If so, then the court may either deny certification under Rule 23(b)(2) or bifurcate the proceedings by certifying a Rule 23(b)(2) class for equitable relief and a separate Rule 23(b)(3) class for damages. See Molski, 318 F.3d at 951 n.16 (citing Jefferson v. Ingersoll Int’l Inc. , 195 F.3d 894, 897-98 (7th Cir. 1999)). 43

Here, the district court certified Plaintiffs’ punitive damages claims as a separate class, but did so under Rule 23(b)(2) rather than Rule 23(b)(3), exercising its discretion to impose additional requirements for notice and the opportunity to optout of this separate Rule 23(b)(2) class. See Dukes, 222 F.R.D. at 173 (“[N]otice and the opportunity to opt-out can be provided in a (b)(2) class action” and “shall be provided to the plaintiff class with respect to Plaintiffs’ claim for punitive damages.”). As the district court noted, its discretion to require notice and the opportunity to opt-out in a Rule

those cases. See Williams, 665 F.2d at 929 (holding that damages requests were not incidental to the request for injunctive relief where requested compensatory damages were not clearly compatible with class injunctive relief); Zinser, 253 F.3d at 1195-96 (same, holding that a request for medical monitoring against manufacturer of pacemaker is not certifiable under Rule 23(b)(2) in the specific circumstances of the case, where the class primarily sought establishment of a reserve fund for past and future damages, compensation for future medical treatment, and other compensatory and punitive damages).
43Relying on Rule 23(c)(4), our own precedent also generally allows class treatment of common issues even when not all issues may be treated on a class basis. See Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9th Cir. 1996); see also Augustin v. Jablonsky (In re Nassau County Strip Search Cases), 461 F.3d 219, 226 (2d Cir. 2006) (same).

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23(b)(2) class action is well established. Id. (citing In re Mon-
umental Life Ins. Co. , 365 F.3d at 417; Molski, 318 F.3d at
951 n.16; Robinson, 267 F.3d at 165-67; Jefferson, 195 F.3d at 898-99).44

Notwithstanding its decision to require notice and an opportunity for opt-out, the district court abused its discretion by certifying the punitive damages claims under Rule 23(b)(2) without first undertaking an analysis of whether certification of the claim for punitive damages (in addition to injunctive and declaratory relief as well as back pay) rendered the final relief “predominantly” related to monetary damages. See Fed. R. Civ. P. 23(b)(2), advisory committee’s note to 1996 amends., 39 F.R.D. at 102. Although notice and an opportunity for Plaintiffs to opt-out of the punitive damages claims alleviated some of the concerns regarding cohesiveness and due process that substantial punitive damages claims potentially raise, requiring these procedures does not remove the district court’s obligation to determine whether each of the requirements of certification under either Rule 23(b)(2) or (b)(3) is met.

[29] On remand, the district court must determine whether certification under Rule 23(b)(2) of the punitive damages claims would cause monetary relief to predominate. As discussed above, the district court should not limit its inquiry to the former Molski factors, but should also consider any other factors relevant to whether monetary relief predominates

44The dissent argues that Ticor Title Insurance Co. v. Brown , 511 U.S. 117 (1994) (per curiam), precludes district courts from granting notice and opt-out rights in class actions certified under Rule 23(b)(2). Dissent at 6270-71. Ticor involved the res judicata effect of a prior case certified under Rule 23(b)(2) without an opportunity for opt-out, so the Court’s attention, quite understandably, was not focused on the extent of the district court’s discretion to provide for such measures. Ticor’s reference to typical Rule 23(b)(2) procedures also was contained in an order dismissing a grant of certiorari and therefore was not even dictum, let alone a holding. See id.

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when determining if certification under Rule 23(b)(2) is appropriate.45 We note at least four factors present in this case that
are relevant to the question whether monetary relief predomi-
nates, but the district court need not limit its inquiry to these
factors alone.

First, the inclusion of a punitive damages request means that the key issue in this case, Wal-Mart’s liability, will be decided by a jury, rather than a judge. This significant procedural change weighs in favor of finding that monetary relief would predominate if the punitive damages claims are certified, although it is not dispositive. 46

Second, Plaintiffs’ request for punitive damages introduces a new and substantial factual issue. To recover punitive damages, Plaintiffs must show not only that Wal-Mart engaged in a pattern or practice of discrimination, but also that it did so “with malice or with reckless indifference to the federally protected rights of ” Plaintiffs. 42 U.S.C. § 1981a(b)(1). This additional factual question will likely require the Plaintiffs to introduce significant evidence and legal argument that would not have otherwise been necessary; the need for such extra evidence and argument weighs in favor of a finding that monetary relief predominates.

Third, the size of a potential punitive damages award, measured on an individual basis, could be quite significant. Title VII permits a punitive damage award of up to $300,000 per employee. See id. § 1981a(b)(3). Such a large potential award raises due process and manageability concerns. Although the

45The dissent largely ignores the limits herein imposed on the district court’s certification order, particularly regarding the mode of proof described below. Dissent at 6271, 6277-78.
46We do not mean to suggest that the issue of Wal-Mart’s liability could not ultimately be decided by a jury. If the district court concludes that the punitive damages class can be certified as a Rule 23(b)(3) class and adopts a hybrid approach, then a jury would have to decide the liability issue for both the Rule 23(b)(2) and the (b)(3) class.

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district court’s decision to provide notice and opt-out to class members alleviates some of these concerns, the size of the potential award per class member in this case militates in favor of a finding that monetary relief predominates, triggering the need for other safeguards applicable when a class is certified under Rule 23(b)(3), rather than Rule 23(b)(2).

Finally, we note that, unlike in other punitive and compensatory damages cases, this case does not require individualized punitive damages determinations. Plaintiffs’ theory of liability is a class-wide theory that is based on a company policy that allegedly affects all class members in a similar way. See Allison, 151 F.3d at 417 (leaving open the possibility that a punitive damage class could be certified under 23(b)(2) where the “plaintiffs challenge broad policies and practices ” and “contend that each plaintiff was affected by th[o]se polices and practices in the same way ”). While this factor counsels against a finding that punitive damages predominate, it also is not necessarily dispositive.

In sum, we hold that the district court abused its discretion when it certified a Rule 23(b)(2) class including punitive damages without first undertaking a comprehensive analysis of whether the inclusion of such damages in this case causes monetary relief to predominate. To allow for further pertinent fact-finding, we remand the certification of the bifurcated punitive damages claims to the district court to consider whether certification is proper under Rule 23(b)(2). We decline to prejudge the outcome of this determination because the question of whether monetary relief predominates should be answered by the district court in the first instance, consistent with the Federal Rules’ intention to vest district courts with significant discretion.

[30] If the district court concludes that the punitive damage class in this action cannot be certified under Rule 23(b)(2), it should also consider whether class certification of the punitive damages claims is appropriate under Rule 23(b)(3). We and

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a number of other courts of appeals have endorsed such “hybrid certification” of Rule 23(b)(2) and Rule 23(b)(3) classes in one action, particularly in civil rights cases that may involve significant monetary damages. See, e.g., Molski, 318 F.3d at 951 n.16; Jefferson, 195 F.3d at 898; Eubanks, 110 F.3d at 96.

Under this hybrid approach, the highly cohesive Rule 23(b)(2) phase of the proceedings, including liability, can be adjudicated without the costly class notice and opt-out process required under Rule 23(b)(3). In order to protect the due process interests of absent class members, however, notice and opt-out is required for the Rule 23(b)(3) punitive damages proceedings. See Fed. R. Civ. P. 23(c)(2), advisory committee’s note to 2003 amends. ( “If a Rule 23(b)(3) class is certified in conjunction with a (b)(2) class, the (c)(2)(B) notice requirements must be satisfied as to the (b)(3) class.” (emphasis added)); Eubanks, 110 F.3d at 96 ( “[Hybrid certification] effectively grant[s] (b)(3) protections . . . at the monetary relief stage.”); Diaz v. Hillsborough County Hosp. Auth. , 165 F.R.D. 689, 695 (M.D. Fla. 1996) (explaining that in Stage I, the court will resolve liability using Rule 23(b)(2) procedures and, if liability is established, adjudicate damages using “opt out” procedures in Rule 23(b)(3)). This procedure retains the benefits of Rule 23(b)(2) and Rule 23(b)(3) for all parties, and “promotes both ease of administration and the underlying principles of Rule 23. ” See Williams v. Local No. 19, Sheet Metal Workers Int’l Ass’n , 59 F.R.D. 49, 56 (E.D. Pa. 1973) (explaining that the liability issue will be litigated first and, if the plaintiffs are successful, notice will be given for the damages proceeding).

We do not express a view on whether the punitive damages claims in this case meet the Rule 23(b)(3) requirements or, if so, how the district court should manage the class proceedings in order to comply with Seventh Amendment principles. We believe, however, that this might be a case in which

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“[d]ivided certification also is worth consideration. ” Jefferson, 195 F.3d at 898.

5. Class Certification May Not be Proper as to Class Members Who Were Not Wal-Mart Employees as of the Date Plaintiffs’ Complaint Was Filed

Wal-Mart’s final contention is that, because a substantial number of the putative class members no longer work for Wal-Mart—and, thus, no longer have standing to seek injunctive or declaratory relief—such relief cannot possibly predominate over monetary relief for purposes of certifying this class under Rule 23(b)(2).

[31] We agree with Wal-Mart to this extent: those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed do not have standing to pursue injunctive or declaratory relief. See Walsh v. Nev. Dep’t of Human Res. , 471 F.3d 1033, 1037 (9th Cir. 2006) (recognizing that former employees lack standing to seek injunctive relief because they “would not stand to benefit from an injunction requiring the anti-discriminatory policies [to cease] at [their] former place of work ”); ACLU of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir. 2006) ( “When evaluating whether [the standing] elements are present, we must look at the facts ‘as they exist at the time the complaint was filed.’ ” (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 569 n.4 (1992))). Under these circumstances, it is difficult to say that monetary relief does not predominate with respect to claims by plaintiffs who lack standing to seek injunctive or declaratory relief.

[32] However, this does not mean that former employees are ineligible to receive any form of relief. Although women who were not employed by Wal-Mart as of June 8, 2001, the date on which the complaint was filed, do not have standing to seek injunctive or declaratory relief, they may be eligible

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to receive back pay and punitive damages. The district court may, in its discretion, certify a separate Rule 23(b)(3) class of former employees for back pay and punitive damages.

Putative class members who were still Wal-Mart employees as of June 8, 2001, do have standing to seek the injunctive and declaratory relief requested in the complaint. 47 See Lomax, 471 F.3d at 1015. We are satisfied that class certification under Rule 23(b)(2) was not an abuse of discretion, at least as to those Plaintiffs’ claims, for the reasons explained in Parts II.B.1-II.B.4.

In summary, we affirm the district court’s certification of a Rule 23(b)(2) class insofar as the class consists of current employees (as of the date the complaint was filed), with respect to claims for injunctive relief, declaratory relief, and back pay. On remand, the district court should analyze whether certification under Rule 23(b)(2) or Rule 23(b)(3) is appropriate for the punitive damages claims and whether an additional class or classes may be appropriate under Rule 23(b)(3) with respect to the claims of former employees. The court may, if appropriate, certify an additional class or classes under Rule 23(b)(3).

IV. CLASS ACTION CAN PROCEED IN A WAY THAT IS BOTH MANAGEABLE AND IN ACCORDANCE WITH DUE PROCESS

[33] The district court was cognizant of the large size of the class when it concluded that the class size was not unmanageable. See Dukes, 222 F.R.D. at 173. Indeed, the district court acknowledged that, “[w]hile courts possess wide discretion to flexibly respond to manageability issues that may arise

47For this reason, the dissent’s observation, Dissent at 6240, that four of the lead plaintiffs have left Wal-Mart since filing their complaint, is irrelevant. Their standing was established as of that date and they were under no obligation to continue to work for Wal-Mart throughout several years of subsequent litigation in order to maintain their legal rights.

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during the course of a class action, this Court must be confident that such issues will not be of such a magnitude as to defy its ability to oversee this case in a responsible and reasonable manner.” Id. (citation omitted). After “giv[ing] these matters considerable thought and deliberation, ” the district court concluded that, with one minor exception, 48 “the size of the class would not present undue obstacles to managing ” this class action. Id.

To demonstrate the manageability of the class action, the
district court outlined a trial plan based, in large part, on how
other courts have handled similarly large and complex class action suits.49 Wal-Mart, supported by a number of businessrelated amici,50 contend that at least some aspects of this trial

48This one exception related to Plaintiffs’ promotion claim. The district court determined that it would be unmanageable to fashion a remedy for the subset of the class for whom objective applicant data did not exist. See Dukes, 222 F.R.D. at 183. As discussed above, the district court did not abuse its discretion in its analysis and resolution of this issue.
49The trial plan described by the district court involved two stages. In Stage I, Plaintiffs would attempt to prove that Wal-Mart engaged in a pattern and practice of discrimination against the class via its company-wide employment policies and that the pattern or practice “was undertaken maliciously or recklessly in the face of a perceived risk that defendant’s actions would violate federal law. ” Dukes, 222 F.R.D. at 173. If Plaintiffs prevailed in Stage I, the case would move to Stage II, the remedy phase. The first task in Stage II would be to fashion class-wide injunctive relief. The second task would be to calculate and distribute the back pay award. As to Plaintiffs’ promotional claim, a formula would be used to calculate the “lump sum” in back pay that Wal-Mart owes to the class (a procedure similar to that employed in Domingo, 727 F.2d at 1444-45). As to Plaintiffs’ equal pay claim, the court would examine Wal-Mart’s employment records to determine which class members were victims of this form of discrimination (and how much in back pay each is owed) to determine a second “lump sum” owed by Wal-Mart. Dukes, 222 F.R.D. at 174-86. A separate procedure would then be used to distribute these lump sums to those class members entitled to share in them — a stage in which WalMart would no longer have an interest. Id. at 179 n.49.
50The court was favored with an extraordinary variety of amicus briefs that were both thoughtful and helpful to it in its deliberations.

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plan violate their due process rights, as well as section 706(g)(2) of Title VII, 51 the Rules Enabling Act, 52 and the Supreme Court’s decision in Teamsters, 431 U.S. at 359-60. 53

51This section states that “[n]o order of the court shall require . . . the payment to [a person] of any back pay, if such individual . . . was refused employment or advancement or was suspended or discharged for any reason other than [unlawful] discrimination ” and that, “[o]n a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court . . . shall not award damages. ” Title VII, § 706(g)(2) (codified at 42 U.S.C. § 2000e-5(g)(2)).
52This statute states that the Federal Rules of Civil Procedure, including Rule 23 regarding class actions, “shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect. ” 28 U.S.C. § 2072(b).
53The dissent also argues that Wal-Mart “has a statutory right, recognized by the Supreme Court, to prove that its actions against individual employees were not discriminatory, ” which the dissent understands to mean that the district “court must allow up to 1.5 million individual determinations of liability.” Dissent at 6238, 6265. However, as the dissent recognizes, this case is at least largely one for prospective relief, which is available once a pattern and practice of discriminatory conduct is proven. The dissent ignores that the pattern and practice has to be proven on a group basis. Teamsters, 431 U.S. at 336 (Plaintiffs have “to prove more than the mere occurrence of isolated or ‘accidental’ or sporadic discriminatory acts. [They] ha[ve] to establish by a preponderance of the evidence that [gender] discrimination was the company’s standard operating procedure—the regular rather than the unusual practice. ”). It is both uneconomical and inefficient to do so in individual actions. In fact, since Teamsters, we have affirmatively held that the district court may award class-wide relief at the damages phase of a Title VII class action without individualized hearings. See Domingo, 727 F.2d at 1444 (“The facts of this case justify a departure from an individualized remedy for each claimant . . . [because the defendant’s] lack of objective hiring criteria and use of word-of-mouth recruitment . . . makes it difficult to determine precisely which of the claimants would have been given a better job absent discrimination, but it is clear that many should have.” (citations omitted)). The dissent’s view would thus essentially preclude class members from either obtaining relief that is available or proving the prima facie portion of the damages case under Teamsters.

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[34] At this stage, we express no opinion regarding WalMart’s objections to the district court’s tentative trial plan (or that trial plan itself), but simply note that, because there are a range of possibilities—which may or may not include the district court’s proposed course of action—that would allow this class action to proceed in a manner that is both manageable and in accordance with due process, manageability concerns present no bar to class certification here.

For example, in Hilao v. Estate of Marcos , 103 F.3d 767,
782-87 (9th Cir. 1996), the district court employed the follow-
ing procedure to determine the amount of compensatory damages due the plaintiffs in a large class action: 54

In all, 10,059 claims were received. The district court ruled 518 of these claims to be facially invalid, leaving 9,541 claims. From these, a list of 137 claims was randomly selected by computer. This number of randomly selected claims was chosen on the basis of the testimony of James Dannemiller, an expert on statistics, who testified that the examination of a random sample of 137 claims would achieve “a 95 percent statistical probability that the same percentage determined to be valid among the examined claims would be applicable to the totality of claims filed.” . . . .

The district court then appointed Sol Schreiber as a special master (and a court-appointed expert under Rule 706 of the Federal Rules of Evidence). Schreiber supervised the taking of depositions . . . of the 137 randomly selected claimants . . . .

54Hilao was a 10,000+ plaintiff class action filed by Philippine nationals and their descendants who were allegedly victims of torture, summary execution, and “disappearance” at the hands of Ferdinand E. Marcos, the Philippines’ former president.

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Id. at 782 (subheading omitted). “Schreiber then reviewed the claim[s],” and “[h]e recommended that 6 claims of the 137 in the sample be found not valid. ” Id. at 782-83. “Schreiber then recommended the amount of damages to be awarded to the 131 [remaining] claimants. ” Id. at 783.

Based on his recommendation that 6 of the 137 claims in the random sample (4.37%) be rejected as invalid, he recommended the application of a fiveper-cent invalidity rate to the remaining claims.

. ...

He recommended that the award to the class be determined by multiplying the number of valid remaining claims . . . by the average award recommended for the . . . claims . . . .

. ...

By adding the recommended awards . . . Schreiber arrived at a recommendation for a total compensatory damage award . . . .

. ...

A jury trial on compensatory damages was [then] held . . . [Hilao’s statistical expert] testified that the selection of the random sample met the standards of inferential statistics, that the successful efforts to locate and obtain testimony from the claimants in the random sample “were of the highest standards ” in his profession, that the procedures followed conformed to the standards of inferential statistics, and that the injuries of the random-sample claimants were representative of the class as a whole. Testimony from the 137 random-sample claimants and their witnesses was introduced. Schreiber testified as

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to his recommendations, and his report was supplied to the jury. The jury was instructed that it could accept, modify or reject Schreiber’s recommendations and that it could independently, on the basis of the evidence of the random-sample claimants, reach its own judgment as to the actual damages of those claimants and of the aggregate damages suffered by the class as a whole.

The jury deliberated for five days before reaching a verdict. Contrary to the master’s recommendations, the jury found against only two of the 137 claimants in the random sample. As to the sample claims, the jury generally adopted the master’s recommendations, although it did not follow his recommendations in 46 instances. As to the claims of the remaining class members, the jury adopted the awards recommended by the master. The district court subsequently entered judgment for 135 of the 137 claimants in the sample in the amounts awarded by the jury, and for the remaining plaintiffs . . . in the amounts awarded by the jury, to be divided pro rata.

Id. at 783-84 (subheadings and footnotes omitted).

On appeal, the Hilao court was presented with some of the same objections to its trial plan as Wal-Mart presents here. 55 After a lengthy discussion, however, the Hilao court rejected these challenges and approved of the trial plan, addressing the due process issue as follows:

While the district court’s methodology in determining valid claims is unorthodox, it can be justified

55For example, the defendant in Hilao argued that the trial plan “violated its rights to due process because individual questions apply to each subset of claims, i.e., whether the action was justified, the degree of injury, proximate cause, etc.” 103 F.3d at 785 (internal quotation marks omitted).

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by the extraordinarily unusual nature of this case. “ ‘Due process,’ unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances. ” Cafeteria and Restaurant Workers Union, Local 473 v. McElroy , 367 U.S. 886, 895 . . . (1961).

. ...

The interest of the [defendant] that is affected is at best an interest in not paying damages for any invalid claims. . . . The statistical method used by the district court obviously presents a somewhat greater risk of error in comparison to an adversarial adjudication of each claim, since the former method requires a probabilistic prediction (albeit an extremely accurate one) of how many of the total claims are invalid. . . . Hilao’s interest in the use of the statistical method, on the other hand, is enormous, since adversarial resolution of each class member’s claim would pose insurmountable practical hurdles. The “ancillary” interest of the judiciary in the procedure is obviously also substantial, since 9,541 individual adversarial determinations of claim validity would clog the docket of the district court for years. Under the balancing test set forth in Mathews [v. Eldridge, 424 U.S. 319 (1976),] and [Connecticut v.] Doehr[, 501 U.S. 1 (1991)], the procedure used by the district court did not violate due process.

Hilao, 103 F.3d at 786-87 (footnote and citations omitted).

Because we see no reason why a similar procedure to that used in Hilao could not be employed in this case, 56 we con-

56We note that this procedure would allow Wal-Mart to present individual defenses in the randomly selected “sample cases,” thus revealing the

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clude that there exists at least one method of managing this

large class action that, albeit somewhat imperfect, nonetheless

protects the due process rights of all involved parties.

57

Accordingly, we find no manageability-based reason to find

this otherwise-certifiable class unsuited to class certification.

CONCLUSION

For the reasons set forth above, we hold that the district court acted within its broad discretion in concluding that it would be better to handle some parts of this case as a class action instead of clogging the federal courts with innumerable individual suits litigating the same issues repeatedly. The district court did not abuse its discretion in finding the requirements of Rule 23 satisfied with respect to those Plaintiffs who were still Wal-Mart employees on June 8, 2001, and with respect to claims for injunctive and declaratory relief and

approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination. The “invalid claim rate ” revealed by this process would, as it did in Hilao, come very close to the invalid claim rate one would expect to find among the entire class.
57We do not suggest that this is the only conceivable way in which this class action could lawfully progress. Indeed, the district court may want to consider whether a more limited “test case” procedure similar to that employed in In re TMI Litig. Consol. Proceedings , 927 F. Supp. 834, 837 & n.5 (M.D. Pa. 1996), would aid the parties in evaluating the strength of their respective claims.
And, of course, the option proposed by the district court may also remain viable; indeed, it appears that a number of circuits have approved of similar trial plans in discrimination cases. See, e.g., Segar, 738 F.2d at 1291 (explaining why a similar trial plan did not violate § 706(g)(2) of Title VII and commenting that, “[i]f effective relief for the victims of discrimination necessarily entails the risk that a few nonvictims might also benefit from the relief, then the employer, as a proven discriminator, must bear that risk”); see also Shipes, 987 F.2d at 316-19; Catlett v. Mo. Highway & Transp. Comm’n , 828 F.2d 1260, 1266-67 (8th Cir. 1987). We point to the Hilao procedure above solely because this circuit has already considered and approved of that procedure.

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back pay. Given the tentative nature of the district court’s trial plan, we decline to address Wal-Mart’s due process and manageability challenges to that plan. We note, however, that the district court has the discretion to modify or decertify the class should it become unmanageable. Although the size of this class action is large, mere size does not render a case unmanageable.

We deny Plaintiffs’ cross-appeal, because the district court did not abuse its discretion when it found that back pay for promotions may be limited to those Plaintiffs for whom proof of qualification and interest exists. Finally, we must reiterate that our findings relate only to class action procedural questions; we neither analyze nor reach the merits of Plaintiffs’ allegations of gender discrimination.

AFFIRMED in part; REMANDED in part. Each party to bear its own costs on appeal.

GRABER, Circuit Judge, concurring:
The majority and the dissent have written scholarly and complete explanations of their positions. What the length of their opinions may mask is the simplicity of the majority’s unremarkable holding:
Current female employees may maintain a Rule 23(b)(2) class action against their employer, seeking injunctive and declaratory relief and back pay on behalf of all the current female employees, when they challenge as discriminatory the effects of their employer’s company-wide policies.
If the employer had 500 female employees, I doubt that any of my colleagues would question the certification of such a

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class. Certification does not become an abuse of discretion merely because the class has 500,000 members.

I therefore concur fully in the majority opinion.

IKUTA, Circuit Judge, with whom Chief Judge KOZINSKI and Judges RYMER, SILVERMAN, and BEA join, dissenting:
No court has ever certified a class like this one, until now. And with good reason. In this case, six women who have worked in thirteen of Wal-Mart’s 3,400 stores seek to represent every woman who has worked in those stores over the course of the last decade—a class estimated in 2001 to include more than 1.5 million women. According to the plaintiffs’ theory, Wal-Mart has a corporate policy of discrimination which it implements through the discretionary decisions of store managers, resulting in class-wide injury in violation of Title VII of the Civil Rights Act of 1964.
But while the six plaintiffs allege they have suffered discrimination at the hands of a few individual store managers, they fail to present “[s]ignificant proof” of a discriminatory policy or practice of Wal-Mart that would make it possible to conclude that 1.5 million members of the proposed class suffered similar discrimination. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 159 n.15 (1982). Without evidence of a company-wide discriminatory policy implemented by managers through their discretionary decisions, or other evidence of a discriminatory company-wide practice, there is nothing to bind these purported 1.5 million claims together in a single action. See id. at 158-59.
Then there is the problem of individual hearings. Under Title VII, Wal-Mart has the right to raise affirmative defenses as to each class member’s claim. This means the court must

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allow up to 1.5 million individual determinations of liability. On its face, a class action of this sort makes no sense.

In certifying the class despite these obstacles, the district court abused its discretion. In affirming most of the district court’s determinations, the majority compounds the error, and creates a precedent for class action suits that departs from the language and intent of Rule 23 of the Federal Rules of Civil Procedure, ignores Supreme Court mandates, and neglects the rights of defendants. I respectfully dissent.

I

A brief review of the facts highlights the obstacles to certifying this class. Wal-Mart is the largest private employer in the world, Dukes v. Wal-Mart Stores, Inc. (Dukes I), 222 F.R.D. 137, 141 (N.D. Cal. 2004), and the largest retail chain in the United States . At year-end 2001, when this suit was filed, Wal-Mart employed over 930,000 retail employees in hundreds of different jobs at roughly 3,400 stores nationwide.

Wal-Mart’s corporate structure is complex. The company divides its retail operation into seven divisions, six for WalMart and one for Sam’s Club. 1 Those divisions are split into 41 separate regions, each of which is overseen by a regional vice president. The regions are further divided into roughly 400 individual districts, which are headed by district managers. Each of Wal-Mart’s regions consists of 80 to 85 stores, with Wal-Mart employing anywhere from 80 to 500 people per store.

Individual stores are run by store managers who are responsible for hiring and promoting the hourly employees in their respective stores. At each store, assistant managers report to

1Sam’s Club is a separate corporate division within Wal-Mart, but operates in roughly the same manner and with a similar organizational structure as Wal-Mart.

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store managers; these management positions are salaried, and employees may be promoted to these positions after first working as entry-level, non-salaried management trainees. Wal-Mart’s retail employees work hourly in 53 different departments and 170 different job classifications; these positions include cashiers, associates, team leads, and department managers.

Wal-Mart gives its managers substantial discretion in both pay and promotion decisions. Store managers make pay decisions for hourly employees, subject only to a general pay structure. Id. at 146. Store managers “are allowed to depart from the minimum start rates, within a two dollar per hour range, without being constrained by objective criteria and with limited oversight. ” Id. at 146-47. Wal-Mart also allows store managers to increase pay for exceptional performance. Id. at 147. District managers set the pay for salaried employees. They have “discretion to set pay rates with little guidance and limited oversight.” Id.

Managers likewise have substantial discretion in making promotion decisions. Wal-Mart has corporate guidelines regarding entrance requirements for its management trainee program, but individual store managers may apply their own subjective criteria in selecting employees who will be invited to enter the program. Id. at 148. Decisions regarding advancement into the highest store-level managerial positions (assistant manager, co-manager, and store manager) are “similarly based on subjective assessments beyond adherence to corporate minimum guidelines. ” Id. Discretion is “further compounded by the fact that the company does not monitor the promotion decisions being made or otherwise systematically review the grounds on which candidates are selected for promotion.” Id. at 149.

This action was brought by six women on behalf of all women who were employed in any retail store position throughout Wal-Mart. Two of these six women still work at

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Wal-Mart. Of the other four, one was terminated, 2 and three left Wal-Mart before the complaint was even filed. 3 In the aggregate, these six plaintiffs worked at ten stores in California, one store in Texas, one store in Oklahoma, and one store in Missouri. Three plaintiffs allege that they expressed interest in, or applied for, various promotions at the store in which they were then employed, but did not receive them. These three women allege that men were promoted instead. Only one of these plaintiffs, Christine Kwapnoski, has held a management position. Two plaintiffs allege that similarly situated men received higher pay. One plaintiff alleges that a lessqualified man received the same pay as she did.

Together, these six women assert that they are adequate class representatives of a class comprising “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.” Id. at 141-42. The class includes every woman working in Wal-Mart’s retail stores, which by definition encompasses salaried store managers who were responsible for the allegedly discriminatory hiring decisions, 4 assistant managers and co-managers who were also responsi-

2Edith Arana was terminated in October 2001 for falsifying her time sheets.
3The complaint was filed in June 2001. Patricia Surgeson left Wal-Mart in March 2001 to take another job, Cleo Page resigned in November 2000 after she received a written warning for performance issues, and Deborah Gunter resigned in August 1999 after Wal-Mart reduced her hours.
4For example, proposed class representative Page alleges that she was passed over for promotion by her store manager, Monique Taylor. Proposed class representative Gunter complained about being passed over for a promotion by her store manager, Kathy Bishop, who Gunter also alleges brushed off allegations Gunter made about sexual harassment. Proposed class representative Kwapnoski discussed her interest in promotion with her assistant manager, Nancy Hom. Taylor, Bishop, and Hom are all members of the proposed class. This case features the unusual distinction of placing victims and their alleged victimizers on the same side of the counsel table.

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ble for much of the alleged discriminatory treatment, and
hourly workers whose in-store positions range from personnel
clerk to deli manager. At the time the suit was filed, the class was estimated to include 1.5 million women. 5

II

Before it can certify a class, a court must ensure that the proposed class meets the standards set forth in Rule 23 of the Federal Rules of Civil Procedure. Rule 23 is a procedural rule that permits courts to aggregate the legal claims of multiple parties when it is efficient and fair to do so. 6 It does not alter the substance of claims or the plaintiffs’ burden to prove their claims. See 28 U.S.C. § 2072(b).

We review the district court’s class certification decisions for abuse of discretion. Staton v. Boeing Co. , 327 F.3d 938, 953 (9th Cir. 2003). Abuse of discretion occurs when the district court commits a legal error, or when it “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. ” Vinole v. Countrywide Home Loans , Inc., 571 F.3d 935, 939 (9th Cir. 2009) (citation and internal quotation marks omitted).

5The majority criticizes the dissent for pointing out the large size of the class, reasoning that the class size may decrease by up to two-thirds if past employees are excluded. See Maj. Op. at 6148 n.3. In determining whether the district court abused its discretion, however, we must consider the class actually certified by the district court, which included past employees. Dukes I, 222 F.R.D. at 188. Moreover, as explained below, the reasons this class cannot be certified apply with equal force regardless of whether the class represents 1.5 million individuals or the class of 500,000 envisioned by the majority.
6Rule 23(a) of the Federal Rules of Civil Procedure provides that “[o]ne or more members of a class may sue or be sued as representative parties on behalf of all members only if ” the class meets the prerequisites of numerosity, commonality, typicality, and adequacy of representation.

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Here, the district court abused its discretion in two ways. First, it failed to follow the Supreme Court’s direction to “evaluate carefully the legitimacy of the named plaintiff’s plea that he is a proper class representative under Rule 23(a), ” Falcon, 457 U.S. at 160, and to ensure “after a rigorous analysis” that the prerequisites of Rule 23(a) have been met, id. at 161. Second, the district court erred in ignoring Wal-Mart’s statutory right to raise defenses to liability for back pay and punitive damages under Title VII, see 42 U.S.C. § 2000e5(g)(2); Rules Enabling Act, 28 U.S.C. § 2072(b), and therefore abused its discretion in holding that the proposed class could be certified under Rule 23(b)(2). I would reverse and remand this action to the district court to correct these errors, which I address below in turn.

A

In Falcon, the Supreme Court held that when a small number of plaintiffs allege company-wide discrimination and attempt to certify a company-wide class, the district court must undertake a “rigorous analysis” to determine whether the Rule 23(a) commonality and typicality factors exist. 7 Falcon, 457 U.S. at 157, 161; see Staton, 327 F.3d at 953-54 (calling a proposed class of 15,000 members throughout six facilities an “ambitious” claim for commonality that was “therefore especially worthy of scrutiny ”). As Falcon explained, the plaintiff’s own experience of discrimination does not allow the district court to infer that “discriminatory treatment is typ-

7The term “commonality” refers to the requirement in Rule 23(a) that “there are questions of law or fact common to the class ”; “typicality” refers to the requirement 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). Falcon noted that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. ” 457 U.S. at 158 n.13.

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ical of [the employer’s employment] practices. ” 457 U.S. at 158; see E. Tex. Motor Freight Sys., Inc. v. Rodriguez , 431 U.S. 395, 403-04 (1977). Indeed, the Court warned, “if one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential companywide class action. ” Falcon, 457 U.S. at 159. Instead, to maintain a company-wide class action based on discrimination, the plaintiff must bridge the “wide gap” between: (1) the plaintiff’s own discriminatory treatment; and (2) the existence of a class that has suffered the same injury as the plaintiff as a result of a company-wide discriminatory policy. Id. at 157.

This principle is simple common sense. A female employee in a store in California, for example, may have a valid claim that her supervisor discriminated against her when making decisions regarding promotion opportunities. But this individual claim would not by itself entitle the California employee to bring the alleged discrimination claims of female employees in a store in Wyoming. Absent evidence that the Wyoming employees had been subject to the same sort of discrimination and could bring the same sort of claims, such a proposed class would clearly fail the Rule 23(a) commonality and typicality requirements. A fortiori, a female employee in California could not represent a class of all female employees in Wal-Mart absent similar proof to bridge the gap between her claim and the existence of company-wide discrimination.

The Supreme Court has identified two situations in which a plaintiff could potentially bridge this gap. The first is where a plaintiff alleges that an employer “used a biased testing procedure” to evaluate all members of the proposed class. Id. at 159 n.15. This makes sense because if the employer used a biased testing procedure throughout the company, then every employee subject to the test would have a similar claim.

The Court’s second example applies directly to this case: a plaintiff “conceivably” could bring a company-wide Title VII

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action if the plaintiff adduced “[s]ignificant proof that an employer operated under a general policy of discrimination ” and the discriminatory policy was implemented through “entirely subjective decision making processes ” in a manner that affected all members of the class. Id. This example also makes sense. As the majority acknowledges, Maj. Op. at 6208, subjective decision making by itself is not a discriminatory practice. See Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 988, 990 (1988) ( “It is true, to be sure, that an employer’s policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct. ”). But if an employer has a company-wide policy of discrimination against women, and the employer implements this policy through company-wide subjective decision making, then the plaintiff could reasonably claim that all female employees were subject to the same discriminatory employment practice. As in our prior example, if the female employee in the California store could offer proof of a company-wide policy of discrimination against women, she would be able to allege that female employees in stores throughout the country suffered a similar discriminatory injury as she did.

Although Falcon did not spell out what constitutes “significant proof” of the existence of a general policy of discrimination, it did make one thing clear: Evidence of discrete instances of discrimination are insufficient to sustain an inference of an employer’s general policy and do not rise to the level of “significant proof.” See 457 U.S. at 158 (holding that evidence that the plaintiff “was passed over for promotion when several less deserving whites were advanced ” may support a claim of individual discrimination, but “would not necessarily justify” a company-wide claim of discrimination). This is the standard that must be applied to the claims here.

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The majority offers several reasons for concluding it is not bound by Falcon’s “significant proof” requirement. First, the majority claims that this requirement has little weight because it was a “hypothetical in clear dicta. ”8 Maj. Op. at 6178 n.15. This contention has no merit. We are bound by the Supreme Court’s instructions whether they are stated in the first sentence of an opinion or in the final footnote. Falcon’s analysis of Rule 23(a) is controlling here, given that it is the sole Supreme Court case addressing Rule 23(a) in the Title VII discrimination context and is directly on point in this case. Moreover, the significant proof requirement is clearly a reasonable interpretation of Rule 23(a); a plaintiff cannot bring a company-wide discrimination class action unless there is sufficient evidence that the alleged discriminatory injury actually affected employees throughout the company.

Second, the majority attempts to cabin Falcon to its facts, asserting that the “significant proof” requirement applies only when the plaintiff is an employee of the company and other members of the purported class are job applicants. In such a case, the majority asserts, the plaintiff and the purported members of the class have “distinct legal theories of recovery.” Maj. Op. at 6179. The majority’s efforts to distinguish Falcon on this ground are unpersuasive. Falcon’s determination that the district court erred in certifying a class of existing employees and job applicants was based on the general principle that a plaintiff’s claims must “fairly encompass” those of

8To support this point, the majority cites to a dissent from the denial of rehearing en banc, Lopez-Rodriguez v. Holder , 560 F.3d 1098 (9th Cir. 2009), which provides no support. See Maj. Op. 6178-79 n.15. LopezRodriguez merely stated that the Supreme Court’s language should not be applied “to create a new rule—one [the Court] never envisioned. ” Maj. Op. at 6178 n.15 (quoting Lopez-Rodriguez, 560 F.3d at 1099). This truism does not support the majority’s position that we have the option to ignore the Supreme Court’s guidance on an issue directly before the Court, as in Falcon.

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the class to meet the Rule 23(a) commonality and typicality requirements. See Falcon, 458 U.S. at 156. In elaborating further on this principle, the Supreme Court explained that plaintiffs who seek to bridge the gap between their claims and those of the class members by alleging a general companywide policy of discrimination must adduce “significant proof” that such a policy exists. Id. at 159 n.15. The Supreme Court did not limit this principle to classes combining plaintiffs with hiring and promotion claims.

Finally, the majority claims that Falcon’s “significant proof” requirement conflates the class certification and merits phases of the litigation. Maj. Op. at 6180 n.17. This is incorrect. Falcon does not require plaintiffs to prove the merits of their claim; here, for example, plaintiffs need not establish a prima facie case of discrimination that can survive the employer’s rebuttal evidence, nor need they prove their claims for individual relief. See Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 360 (1977). But Falcon does require the plaintiffs to put forth some significant proof, i.e., evidence beyond allegations, that a general policy of discrimination exists. Falcon, 457 U.S. at 159 n.15. More important, as Falcon states (and as the majority acknowledges), courts at the class certification stage must “probe behind the pleadings” to examine evidence which goes to the requirements of Rule 23, even if such evidence also relates to the underlying merits of the case. Id. at 160. In this context, the degree of overlap between the merits determination and the determination that the class meets the Rule 23 requirements is largely irrelevant. Id. Rather, Falcon’s principle that a handful of individual incidents of discrimination are insufficient for class certification is applicable both at the merits stage and the class certification stage. See Cooper v. Fed. Reserve Bank , 467 U.S. 867, 876-77 (1984). If plaintiffs cannot demonstrate that the proposed class was subject to a general policy of discrimination, then the class action is not an efficient mechanism for pursuing relief, and the district court may not certify the class.

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We must consider plaintiffs’ motion for class certification under Rule 23(a) in light of Falcon’s requirements. In this case, the plaintiffs asked the district court to certify a class of 1.5 million women based on: (i) 120 anecdotes; (ii) statistical evidence; and (iii) expert testimony. 9 In light of Falcon, the district court’s responsibility to conduct a rigorous scrutiny of this evidence was clear. As explained below, the evidence does not come close to meeting the Falcon requirements for demonstrating commonality and typicality.

1

On its face, 120 anecdotes, or one anecdote for every 12,500 class members, does not support plaintiffs’ claim that Wal-Mart had a company-wide policy of discrimination. The affidavits describe the affiants’ experiences in, at most, 235 of Wal-Mart’s 3,400 stores, meaning that the affidavits provide no information about working conditions in over 3,100 stores. A single affidavit from a single store in Michigan tells little about whether there is discrimination at each of the other 72 stores in Michigan, let alone the rest of the company. Cooper, 467 U.S. at 877-78; see Cooper v. S. Co. , 390 F.3d 695, 714-15 (11th Cir. 2004) (holding that evidence of discrimination in one part of a company does not necessarily give rise to an inference of discrimination in a different part of the company), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457-58 (2006) (per curiam).

9As pointed out by the majority, the plaintiffs also produced “facts supporting the existence of company-wide policies and practices. ” Maj. Op. at 6187. Because it is undisputed that Wal-Mart maintains uniform company-wide policies, and because the mere existence of company-wide policies says nothing about whether such policies are discriminatory, there is no need to discuss such “facts” separately from plaintiffs’ other purported evidence.

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Nor are the 120 affidavits geographically representative of Wal-Mart as a whole. See Cooper, 390 F.3d at 719 (upholding the district court’s determination that, “given the sheer size and geographically dispersed nature of the defendants’ workforce, the anecdotal evidence—disturbing as some of it may have been—was inadequate to establish discrimination classwide”). Here, more than half of the 120 women who submitted affidavits are concentrated in only six states—Alabama, California, Florida, Missouri, Texas, and Wisconsin—where less than a third of Wal-Mart stores are located. There are no more than one or two affidavits relating to Wal-Mart operations in half the states, and 14 states are not represented at all.10

The Supreme Court has held that a court may find a

company-wide policy of discrimination where plaintiffs have

offered a substantial number of affidavits compared to the

size of the class, along with sufficient statistical evidence. 11

Teamsters, 431 U.S. at 339. In Teamsters, for example, 40

anecdotes of discrimination out of a class of some 334

employees (one out of every eight class members) were held

probative of a pattern or practice of discrimination.

See

10The number of Wal-Mart stores and managers set forth in this paragraph are based on information provided by plaintiffs’ expert, Dr. Marc Bendick, and are current as of 1999.
11Until today, this circuit’s largest stretch to uphold certification in an employment discrimination class action based on a small number of incidents of discrimination occurred in Staton, where 237 individuals sought to represent a class of 15,000 African American employees. 327 F.3d at 948 n.4, 953. Cautioning that this was an “ambitious” claim for commonality that was “especially worthy of scrutiny, ” id. at 954, we nevertheless upheld the district court’s class certification. In doing so, we noted that plaintiffs’ lawyers interviewed more than 1,300 employees from facilities across the country, filed detailed documentation of discrimination experienced by 200 of those employees, and produced a company-wide internal survey to support their claims of class-wide racial discrimination. Id. Accordingly, at a minimum, the plaintiffs presented anecdotal evidence from one out of every 75 class members. No court, however, has ever held that one anecdote could suffice to represent the experiences of as vast a number as 12,500 class members.

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United States v. T.I.M.E.-D.C., Inc. , 517 F.2d 299, 308 (5th Cir. 1975), overruled by Teamsters, 431 U.S. 324. These 40 anecdotes were from employees spread throughout the company and represented seven of the company’s ten largest operations. See id. at 315 & n.30.

On the other hand, the Supreme Court has concluded that a handful of discriminatory incidents is insufficient evidence of a company-wide policy of discrimination to justify certification of a company-wide class. Falcon, 457 U.S. at 159. A plaintiff’s individual experience of discriminatory treatment does not itself raise the inference that such treatment is typical of the employer’s practices. Id. at 158; see Cooper, 467 U.S. at 877-78 (“[A] class plaintiff’s attempt to prove the existence of a companywide policy, or even a consistent practice within a given department, may fail even though discrimination against one or two individuals has been proved. ”).

Here, 120 affidavits compared to 1.5 million members of the class amount to nothing more than evidence of “isolated or sporadic” incidents of discrimination, Cooper, 468 U.S. at 876, which are insufficient to show a company-wide policy of discrimination. See Falcon, 457 U.S. at 159. The affiants claim discrimination in different forms, at the hands of different people, in different stores, in different parts of the country, at different times, and under a constellation of facts unique to each individual. Whether or not these 120 employees have actionable discrimination claims against the store and management where they worked, their individual stories do not constitute significant proof that Wal-Mart has adopted a general policy of discrimination or that such a policy prevails in the remaining 3,100 stores. In relying on such scanty anecdotal evidence to support class certification, the district court failed to “probe behind the pleadings ” to determine whether the six plaintiffs actually did “possess the same interest and suffer the same injury ” as the proposed class members. Id. at 160.

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The majority makes the same mistake. Discarding WalMart’s objection that the district court abused its discretion in considering the 120 affidavits to be an adequate basis for certifying the class, the majority states, “we find no authority requiring or even suggesting that a plaintiff class submit a specific number of declarations for such evidence to have any value.” Maj. Op. at 6205. This is a straw-man argument. The Supreme Court has not specified a threshold number of affidavits that a plaintiff alleging company-wide discrimination must have in hand. But if the plaintiff’s affidavits do not raise the inference that the employer’s practices are “motivated by a policy of [gender] discrimination” pervading the employer’s company, they do not support class certification. Falcon, 457 U.S. at 158. Here, the majority’s conclusion that one declaration for every 12,500 women, amounting to a handful of declarations scattered among 3,400 stores in fifty states, “raise[s] an inference of common discriminatory experiences, ” Maj. Op. at 6206, does not pass even the straight-faced test.

2

The plaintiffs’ statistical evidence is no better. Plaintiffs relied most heavily on the statistical study produced by Dr. Richard Drogin, a retired professor of statistics from California State University, Hayward. Drogin conducted a regional analysis comparing the percentage of women promoted into management positions at Wal-Mart with the percentage of women in the available pool of hourly workers, and concluded that women were underrepresented in management in almost every one of Wal-Mart’s 41 regions. Drogin also compared the earnings of women to the earnings of men at WalMart and concluded that in each region, Wal-Mart pays women less than men in comparable hourly positions.

Wal-Mart objected to this evidence on the ground that data aggregated at the regional or national level did not demonstrate there was a general policy of discrimination throughout Wal-Mart’s 3,400 individual retail stores. The district court

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dismissed these objections. Rejecting what it characterized as Wal-Mart’s effort “to engage the Court in a merits evaluation of the expert opinions, ” the district court stated it would “delve[ ] into the substance of the expert testimony only to the extent necessary to determine if it is sufficiently probative of an inference of discrimination to create a common question as to the existence of a pattern and practice of gender discrimination at Wal-Mart.” Dukes I, 222 F.R.D. at 155. Applying this standard, the court held that Drogin’s regional analysis was not “lacking in probative value, ” was “at least a reasonable means of conducting a statistical analysis, ” id. at 159, and therefore was sufficient to “create an inference of discrimination” for class certification purposes, id. at 164.

The district court’s superficial examination of Drogin’s statistics constituted legal error. The plaintiffs’ class proposal hinged on its proof that Wal-Mart had a general policy of discrimination; absent convincing proof on that point, the plaintiffs could not bridge the gap between their discrimination claims and the purported claims of the class. Accordingly, the district court was obliged to scrutinize plaintiffs’ evidence and make a reasoned determination as to whether it constituted significant proof that Wal-Mart had a general policy of discrimination, and thus whether the requirements of Rule 23(a) had been met. See Falcon, 457 U.S. at 161.

The district court expressly rejected this responsibility. Instead of rigorously analyzing whether the plaintiffs’ evidence was significant proof of a general policy of discrimination, the district court made it Wal-Mart’s burden to prove that Drogin’s statistics were no longer probative or were “fatally flawed.” See Dukes I, 222 F.R.D. at 161-62; see also id. at 159 (concluding that Wal-Mart failed to persuade the court “that Dr. Drogin’s regional analysis should be rejected . . . because it is lacking in probative value ”); id. at 160 (concluding that “[Wal-Mart] has not discredited or nullified Dr. Drogin’s results” with respect to Wal-Mart’s objection that Drogin’s methodology failed to account for a variety of rele-

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vant factors). The majority affirms this error by simply labeling the district court’s analysis as “rigorous” and insisting (without analysis) that the district court adequately probed behind the pleadings.

Had the district court properly analyzed the evidence, it could not have concluded that Drogin’s statistics constituted significant proof of plaintiffs’ theory. Information about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level. As Wal-Mart’s statistical expert, Dr. Joan Haworth, explained, the statistical disparities at the regional level could be due to decisions made at only a small percentage of WalMart stores.12 Indeed, Haworth concluded that, when data is considered at the store level, over 90 percent of Wal-Mart’s stores showed no statistical difference in the hourly pay rates between men and women associates with similar work-related characteristics. Although Drogin argued that it was proper to conduct an analysis on a regional level because “the subjec-

12In fact, Haworth pointed out that the statistical disparities between men and women at the regional level could also be the result of the aggregation of the data itself. This problem is known as “Simpson’s Paradox,” which refers to “illusory disparities in improperly aggregated data that disappear when the data are disaggregated. ” Eng’g Contractors Ass’n of S. Fla. Inc. v. Met. Dade County, 122 F.3d 895, 919 n.4 (11th Cir. 1997); see also P.J. Bickel, E.A. Hammel, & J.W. O’Connell, Sex Bias in Graduate Admissions: Data from Berkeley , 187 Science 398 (1975) (using Simpson’s Paradox to explain how researchers found a statistically significant bias in favor of male applicants when analyzing admissions data from all 101 of Berkeley’s graduate departments, despite the fact that only 4 departments had a statistically significant bias in favor of males and 6 departments had a statistically significant bias in favor of females). As the article cited by the majority shows, it is especially likely that Drogin’s statistics would display illusory disparities, because Drogin based his study on pre-existing information that was collected from a large sample size. See Marios G. Pavlides & Michael D. Perlman, How Likely Is a Simpson’s Paradox, 63 Am. Statistician 226, 230 (2009).

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tive decision-making in compensation and promotions takes place within parameters and guidelines that are highly uniform, and within a strong corporate culture, ” Dukes I, 222 F.R.D. at 157, this argument makes little sense. Among other things, this argument is contrary to the thrust of plaintiffs’ legal theory, namely, that the decisions of individual managers regarding pay and promotions are subjective and not subject to uniform “parameters and guidelines.” It is also contrary to the district court’s own determination that “in-store pay and promotion decisions are largely subjective and made within a substantial range of discretion by store or district level managers.” Id. at 152. More important, because statistical disparities may exist at the regional level even if the majority (or all) of the store managers made nondiscriminatory decisions at the store level, Drogin’s data is not sufficiently probative of conditions at the store level to constitute significant proof of the existence of a class subjected to a policy of company-wide discrimination.13

The majority disposes of Wal-Mart’s objection that regional data is not indicative of a general discriminatory policy at individual stores by criticizing Wal-Mart’s statistics, which aggregated data at the sub-store rather than the store level, an approach the district court had previously allowed.

13The district court also relied on a study prepared by Dr. Marc Bendick, Ph.D., an economist and consultant, which made a company-wide comparison of Wal-Mart with twenty purportedly similar (but much smaller) retail companies. The study concluded that on a company-wide basis Wal-Mart promoted a smaller percentage of women than its competitors. Again, the district court applied the wrong legal standard. Instead of conducting a rigorous evaluation of the evidence as required by Falcon, it accepted Bendick’s study at face value because it held it was “sufficiently probative to assist the Court in evaluating the class certification requirements at issue in this case. ” Dukes v. Wal-Mart, Inc. (Dukes II), 222 F.R.D. 189, 195 (N.D. Cal. 2004). In fact, Bendick’s study did not provide support for plaintiffs’ claim that the 1.5 million women in the class were subject to discriminatory treatment in promotions, because it too failed to provide information derived from the level at which promotion and pay decisions were actually made.

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Dukes I, 222 F.R.D. at 157 n.25. But the quality of the defendant’s statistics is not the issue here; rather, it is the plaintiffs’ burden to produce significant proof of a policy of discrimination across Wal-Mart that manifested itself in similar ways throughout the company. See Falcon, 457 U.S. at 160. Plaintiffs’ statistics lack probative value even without Wal-Mart’s opposing data.

3

Finally, the district court committed legal error by failing
to test the reliability of the expert opinion of William Bielby, Ph.D., as required by Federal Rule of Evidence 702 14 and
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
589 (1993). In brief, Bielby presented his theory that subjec-
tive decision making, such as that which occurs at Wal-Mart
stores, is “susceptible to unconscious discriminatory impulses.”15 Wal-Mart moved to strike Bielby’s testimony on

14Federal Rule of Evidence 702 states that:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
15The majority cites to Melissa Hart & Paul M. Secunda, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 Fordham L. Rev. 37 (2009), for a description of Bielby’s “social framework analysis. ” Maj. Op. at 6189 n.21. In employment discrimination litigation, social framework experts purport to summarize social science research regarding the workplace to give the finder of fact a “context” in which to decide key legal issues. Hart & Secunda, supra, at 44. The article by Hart and Secunda discusses the dispute among social psychologists over whether it is appropriate for experts like Bielby to use social framework analysis to draw specific factual conclusions about a company’s operations without the use of case-specific research. See id. at 51-55. The controversy over the reliability of this methodology highlights the need for a proper Daubert inquiry here.

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the ground that his opinion was not reliable. According to Wal-Mart, Bielby failed to apply the same standards to his work in preparing his testimony that he applied to his work as a scientist. Wal-Mart alleged, inter alia, that Bielby had misrepresented aspects of the literature upon which he relied, made unsustainable extrapolations from that literature, failed to consider evidence that tended to undermine his theory, and failed to test his data.

Instead of evaluating the reliability of Bielby’s report in light of Wal-Mart’s arguments, the district court denied WalMart’s motion on the ground that “courts should not even apply the full Daubert ‘gatekeeper’ standard” at the class certification stage. Dukes II, 222 F.R.D. at 191. Rather, the district court held that “[t]he appropriate question at this stage of the litigation is not whether Dr. Bielby can make a conclusive determination, but whether [his opinion] could add probative value to the inference of discrimination that plaintiffs allege. ” Dukes I, 222 F.R.D. at 154. Concluding that the report was not “so flawed that it lacks sufficient probative value to be considered in assessing commonality,” the district court relied on Bielby’s report in making its determination that plaintiffs met the Rule 23(a) requirements. Dukes II, 222 F.R.D. at 192.

In so ruling, the district court misunderstood Daubert and the level of inquiry required at the class certification stage. The purpose of conducting a Daubert inquiry is to ensure that proffered expert testimony is relevant and reliable. Kumho Tire Co. v. Carmichael , 526 U.S. 137, 152 (1999). “It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. ” Id. To this end, a court must make “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. ” Daubert, 509 U.S. at 592-93. Courts are obliged to address allegations

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that an expert’s opinion is not supported by the data, and may reject “opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Gen. Elec. Co. v. Joiner , 522 U.S. 136, 146 (1997).

These principles are equally applicable in the class certification context. The district court must “assess all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met, just as the judge would resolve a dispute about any other threshold prerequisite for continuing a lawsuit. ” In re Initial Pub. Offerings Sec. Litig. , 471 F.3d 24, 42 (2d Cir. 2006). Like any other evidence, expert evidence introduced to “establish a component of a Rule 23 requirement ” must be reliable; it is not enough that the expert testimony is “not fatally flawed.” Id.; see also Am. Honda Motor Co. v. Allen , No. 098051, slip op. at 6 (7th Cir. April 7, 2010) (holding that the court must conduct a Daubert analysis on key expert testimony even at the class certification stage); In re Hydrogen Peroxide Antitrust Litig. , 552 F.3d 305, 323 (3d Cir. 2008) (“Expert opinion with respect to class certification, like any matter relevant to a Rule 23 requirement, calls for rigorous analysis.”). A court cannot reasonably certify a class based on evidence that is not “based upon sufficient facts or data, . . . the product of reliable principles and methods, ” and the product of reliable application of the methods to the facts. Fed. R. Evid. 702. Although a district court has considerable discretion under Daubert, there is no basis for the district court’s conclusion that it can forego a reliability inquiry altogether. The district court abused its discretion in doing so. 16

16The majority writes that it is “not convinced by the dissent’s argument that Daubert has exactly the same application at the class certification stage as it does to expert testimony relevant at trial. ” Maj. Op. at 6191 n.22. But the majority never accounts for why it is “not convinced,” nor does it explain why the district court can rely on an expert’s testimony that is not reliable, at the class certification stage or any other. Rule 702 and the Supreme Court make clear that evidence that is not scientifically valid does not “ ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’ ” Daubert, 509 U.S. at 589 (quoting Fed. R. Evid. 702).

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The majority’s discussion of this claim misses the mark entirely. First, instead of engaging the question whether the district court properly tested the reliability of Bielby’s testimony, the majority simply concludes that “Dr. Bielby presented scientifically reliable evidence.” Maj. Op. at 6193. This not only assumes the answer to the very question at issue, but is wrong on its face: The district court explicitly did not consider whether the evidence was “scientifically reliable,” holding instead that the evidence was not “so flawed that it lacks sufficient probative value to be considered in assessing ” whether class certification was appropriate. Dukes II, 222 F.R.D. at 192. 17

The majority focuses its discussion on what it characterizes as Wal-Mart’s objection to the persuasiveness of Bielby’s testimony. According to the majority, Wal-Mart “did not (and does not) challenge Dr. Bielby’s methodology. ” Maj. Op. at 6190. In fact, Wal-Mart never challenged the persuasiveness of Bielby’s testimony, but rather challenged Bielby’s methodology, a challenge that is proper under Daubert. See Daubert, 509 U.S. at 592-93; see also Joiner, 522 U.S. at 144. By missing this point, the majority erroneously approves the district court’s reliance on an arguably unreliable expert opinion.

D

When plaintiffs’ evidence is subjected to the rigorous inquiry required by Falcon, it is inadequate to bridge the gap between the six plaintiffs’ claims of individual discrimination and a class-wide claim of company-wide discrimination. None of plaintiffs’ evidence is probative of company-wide

17The majority errs in suggesting that the district court performed a proper Daubert inquiry, see Maj. Op. at 6191-92 n.22, because it stated that Bielby’s opinion “is based on valid principles. ” Dukes II, 222 F.R.D. at 192. Whether Bielby based his testimony on valid principles says nothing about whether he applied those principles via a valid methodology to produce relevant and reliable evidence, which is the critical issue under Daubert.

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discrimination. Every piece of evidence merely purports to support another. While plaintiffs’ anecdotes do not show company-wide discrimination, plaintiffs argue they support the statistical evidence. The statistics are not probative of a company-wide policy of discrimination, but plaintiffs allege they may be “attributable” to such a policy when viewed in connection with Wal-Mart’s uniform corporate policies. Maj. Op. at 6187-88. The uniform corporate policies are not themselves discriminatory but, according to plaintiffs, provide a potential “conduit” for discrimination. Maj. Op. at 6187. The expert opinions do not point to discrimination on a companywide basis, but merely “support[ ] the existence of companywide policies and practices that likely include a culture of gender stereotyping.” Maj. Op. at 6187 (emphasis added). And Wal-Mart’s corporate policy of subjective decision making is not discriminatory in itself but, plaintiffs urge, may be evidence of company-wide discrimination in light of the statistical evidence and anecdotes. Maj. Op. at 6207. Like the proverbial shell game, the plaintiffs’ circular presentation cannot conceal the fact that they have failed to offer any significant proof of a company-wide policy of discrimination, no matter which shell is lifted.

By taking the district court’s determination at face value, the majority erroneously accepts a chain of weak inferences as sufficient to carry plaintiffs’ burden of adducing significant proof that Wal-Mart “operated under a general policy of discrimination” that affected all members of the class. Falcon, 457 U.S. at 159 n.15. Any reasonable scrutiny of the evidence in this case compels the conclusion that although the six plaintiffs here may have individualized claims of discrimination, they cannot represent a class of 1.5 million past and present employees. The district court abused its discretion in holding that the plaintiffs met the commonality and typicality requirements of Rule 23(a).

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Even assuming the district court was correct in concluding

that the proposed class satisfied the Rule 23(a) standard, the

district court made two crucial errors when it certified the

class under Rule 23(b)(2). First, the district court failed to

consider whether it could protect the parties’ substantive

rights in the class action context. Although the plaintiffs were

bringing Title VII claims, the district court erroneously con-

cluded that it had no obligation to allow Wal-Mart to raise the

statutory defenses provided by Title VII. This was an error:

A court must ensure that its certification of a class does not

affect the substantive rights of either party.

See Rules

Enabling Act, 28 U.S.C. § 2072(b)18; Ortiz v. Fibreboard

Corp., 527 U.S. 815, 845 (1999) ( “[N]o reading of the Rule

can ignore the Act’s mandate that rules of procedure shall not

abridge, enlarge or modify any substantive right. ” (internal

quotation marks omitted) (quoting Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 613 (1997))). This mistake led to a

second legal error: Because the district court turned a blind

eye to Wal-Mart’s right to individual hearings, the district

court failed to realize that the class did not fit the historical

model of Rule 23(b)(2), and therefore could not be certified

under that section of the rule.

A

The parties’ substantive rights in this case are defined by Title VII. The majority acknowledges that the legal and factual frameworks of different causes of action can impact the outcome of a court’s Rule 23 determination. Maj. Op. at 6152-53, 6171-72. Yet the majority fails to address the spe-

1828 U.S.C. § 2072(b) provides:
(b) Such rules [of practice and procedure prescribed by the Supreme Court] shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.

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cific legal and factual framework of Title VII or consider how it impacts the certification of plaintiffs’ proposed class. It is therefore necessary to provide some background regarding the structure of claims and defenses under Title VII before discussing the majority and district court’s error in certifying the proposed class under Rule 23(b)(2).

1

Under Title VII, the plaintiff has the ultimate burden of establishing that the employer is engaged in an unlawful employment practice described in 42 U.S.C. § 2000e-2. If the plaintiff prevails in a Title VII action, the court “may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay . . ., or any other equitable relief as the court deems appropriate. ” 42 U.S.C. § 2000e-5(g)(1). In cases where the plaintiff alleges that the employer engaged in intentional discrimination, the plaintiff may also seek compensatory and punitive damages. § 1981a(a)(1). Punitive damages are available only if the plaintiff can show the employer acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” § 1981a(b)(1); e.g., Landgraf v. USI Film Prods., 511 U.S. 244, 254 (1994).

Title VII affords defendant-employers certain affirmative defenses. If the employer can prove that an adverse employment action against an individual employee was “for any reason other than discrimination on account of race, color, religion, sex, or national origin or in violation of section 2000e-3(a) of this title, ” a court shall not order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay. ” § 2000e-5(g)(2)(A). Even if the employee proves that the adverse employment action was motivated in part by a discriminatory motive, see § 2000e-2(m), a court cannot award damages or back pay if

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the employer can prove that it “would have taken the same

action in the absence of the impermissible motivating factor, ”

§ 2000e-5(g)(2)(B)(ii). See Costa v. Desert Palace, Inc. , 299

F.3d 838, 848 (9th Cir. 2002) (explaining that in a mixed

motive case, an employer “may assert an affirmative defense

to bar certain types of relief by showing the absence of ‘but

for’ causation”), aff’d, 539 U.S. 90. If the employer is suc-

cessful in proving an affirmative defense, Title VII limits the

court to granting declaratory or injunctive relief, as well as

certain attorneys’ fees and costs. 42 U.S.C. §

2000e-

5(g)(2)(B)(ii).

These defenses are available to a defendant regardless of whether the plaintiffs allege discrimination against a single individual or against a class. See 28 U.S.C. § 2072(b); Teamsters, 431 U.S. at 360 (citing Franks v. Bowman Trans. Co. , 421 U.S. 747 (1976)). An employer cannot be deprived of its statutory right to raise individualized defenses to claims for monetary relief merely because plaintiffs characterize their claim as a pattern or practice of discrimination and bring the suit on behalf of a class. Instead, the Supreme Court has created a framework for litigating pattern-or-practice claims that provides employers the opportunity to put forth individual defenses. See Teamsters, 431 U.S. at 360-62. 19

The first phase of a Title VII pattern-or-practice lawsuit focuses on company-wide practices. The party bringing the

19Teamsters involved a suit by the Attorney General under 42 U.S.C. § 2000e-6, which allows the government to bring an action when it has cause to believe that a person “is engaged in a pattern or practice of resistance to the full enjoyment of any of the rights ” secured by Title VII. 431 U.S. at 328 n.1. Teamsters’s two-step framework is equally applicable to class actions brought by individuals alleging discrimination. See id. at 358-59 (noting that it was adopting the two-step framework set forth in Franks, 424 U.S. 747, a class action brought by individuals alleging discrimination); see also Cooper , 467 U.S. at 876 n.9 (applying the Teamsters pattern-or-practice framework to class actions brought by individuals).

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suit must first attempt “to establish by a preponderance of the evidence that . . . discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice.” Id. at 336. In this phase, the plaintiff need not show that each member of the class “was a victim of the employer’s discriminatory policy.” Id. at 360. If the plaintiff “establish[es] a prima facie case that such a policy existed[,] ” the burden shifts to the employer to show there was no such pattern of discrimination at a company-wide level. Id. If the employer fails to rebut the inference of discrimination arising from the plaintiffs’ prima facie case, the district court may “conclude that a violation has occurred” and order prospective relief. Id. at 361.

But if plaintiffs seek individual relief such as reinstatement or back pay, the district court must conduct additional proceedings in the second phase of the trial “to determine the scope of individual relief. ” Id. In this second phase, “[t]he proof of the pattern or practice supports an inference that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.” Id. at 362. Therefore, individual class members may establish a prima facie case merely by showing that an individual “unsuccessfully applied for a job and therefore was a potential victim of the proved discrimination. ” Id. (footnote omitted). The burden then shifts to the employer to raise its affirmative defenses and to “demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id. Teamsters acknowledged that the district court’s task of determining individual relief would “not be a simple one,” because “the court will have to make a substantial number of individual determinations in deciding which of the minority employees were actual victims of the company’s discriminatory practices.”20 Id. at 371-72.

20While Teamsters referred to the second stage of individualized hearings as the “remedial” stage of trial, 431 U.S. at 361, this is a misnomer.

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As should be clear, claims for monetary relief cannot be resolved until this second phase. See, e.g., Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639, 651 (6th Cir. 2006); Lemon v. Int’l Union of Operating Eng’rs, Local No. 139 , 216 F.3d 577, 581 (7th Cir. 2000); Allison, 151 F.3d at 417. This applies equally to punitive damages. Because the Supreme Court has indicated that punitive damages must bear a “reasonable relationship to compensatory damages, ” BMW of N. Am., Inc. v. Gore , 517 U.S. 559, 580 (1996) (internal quotation marks omitted), “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 general liability to the class at the first stage, ” Allison, 151 F.3d at 418; see also 42 U.S.C. § 1981a(b)(1) (an employer

As explained by Justice O’Connor in her concurrence in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), superceded in part by statute , Civil Rights Act of 1991, the second stage of individualized hearings is not remedial, but rather a second phase of liability, in which the employer is entitled to raise individual statutory defenses: “It is misleading to speak of the additional proof required by an individual class member for relief as being a part of the damage phase, that evidence is actually an element of the liability portion of the case. ” Id. at 266 (O’Connor, J., concurring) (quoting Dillon v. Coles , 746 F.2d 998, 1004 (3d Cir. 1984)). We have explained the two-step procedure in a similar way. See EEOC v. Gen. Tel. Co. of Nw., Inc., 599 F.2d 322, 332 (9th Cir. 1979) (holding that the demonstration of a discriminatory pattern and practice in the first phase of the case establishes the individual class members’ prima facie case of discrimination, and shifts the burden to the employer “to prove that individuals were not in fact victims of previous discrimination ”); see also Domingo v. New Eng. Fish Co. , 727 F.2d 1429, 1445 (9th Cir. 1984) (holding that once class-wide discrimination has been shown, a claimant is presumptively eligible for back pay, subject to the employer “proving that the applicant was unqualified or showing some other valid reason why the claimant was not, or would not have been, acceptable ”). Other circuits are in accord. See, e.g., Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 159 (2d Cir. 2001); Allison v. Citgo Petroleum Corp. , 151 F.3d 402, 417-18 (5th Cir. 1998); Dillon, 746 F.2d at 1004; Craik v. Minn. State Univ. Bd. , 731 F.2d 465, 469-70 (8th Cir. 1984); Mitchell v. MidContinent Spring Co. of Ky. , 583 F.2d 275, 284 (6th Cir. 1978).

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may avoid punitive damages by showing lack of requisite mens rea as to each aggrieved individual); Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 545-46 (1999) (holding that an employer may avoid punitive damages under § 1981a if it has made good-faith efforts to prevent discrimination in the workplace); Rodriguez-Torres v. Caribbean Forms Mfr., Inc. , 399 F.3d 52, 64 (1st Cir. 2005) (holding that an employer’s good faith efforts to implement an anti-discrimination policy in the workplace is an affirmative defense to an award of punitive damages under § 1981a).

In sum, a determination that an employer has engaged in a pattern or practice of discrimination in violation of Title VII entitles the class to prospective relief and creates a presumption of liability for individual relief. The employer then has a statutory right, recognized by the Supreme Court, to prove that its actions against individual employees were not discriminatory. The Rules Enabling Act prohibits a district court from depriving an employer of this right simply to facilitate the certification of a class action. 21 See 28 U.S.C. § 2072(b).

2

In this case, notwithstanding the requirements of Title VII, the district court rejected Wal-Mart’s arguments that it was entitled to raise a defense with respect to each class member’s claim for back pay and punitive damages. Dukes I, 222 F.R.D. at 173-74. The district court did not provide any reason for

21The majority accuses the dissent of “ignor[ing] that the pattern and practice has to be proven on a group basis. ” Maj. Op. at 6231 n.53 (emphasis in original). On the contrary, there is no doubt that a plaintiff must establish a pattern and practice of discrimination on a company-wide basis in the first phase of their case, as explained above. It is the majority that turns a blind eye to the second phase of Title VII litigation, where defendants have the right to raise affirmative defenses as to each class member. The majority never satisfactorily answers the question of how the district court would conduct up to 1.5 million individualized hearings during the second phase that Teamsters mandates.

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this decision, stating only that “holding individual hearings for the number of women potentially entitled to backpay in this case is impractical on its face, and thus the traditional Teamsters mini-hearing approach is not feasible here. ” Id. at 176.

It seems obvious that the district court’s determination that it could not certify the class in compliance with Teamsters compels the conclusion that it could not certify the class at all. Nevertheless, the district court determined it could bypass Supreme Court precedent. Relying on cases the court characterized as allowing back pay awards to be calculated on a class-wide basis, see Dukes I, 222 F.R.D. at 176-78, 180, 184, the district court held that once plaintiffs proved that WalMart engaged in a pattern or practice of discrimination, liability as to individual class members could be determined by means of a formula for employees denied promotions, id. at 176-78, or by analyzing Wal-Mart’s personnel data to identify employees entitled to back pay, id. at 184-86. Further, the district court rejected Wal-Mart’s argument that punitive damages could not be awarded on a class-wide basis, holding that it could “limit recovery of any punitive damages to those class members who actually recover an award of lost pay, ” as determined by a formula. Id. at 172.

In adopting the approach described above, the district court deprived Wal-Mart of its statutory right to raise its defenses and violated the mandate of the Rules Enabling Act. If WalMart can prove that it took an adverse employment action with respect to a particular plaintiff for non-discriminatory reasons, or that it “would have taken the same action in the absence of the impermissible motivating factor, ” 42 U.S.C. § 2000e-5(g)(2)(A), (B), it cannot be held liable for back pay or punitive damages as to those individual class members. See Teamsters, 431 U.S. at 361.

The cases relied on by the district court, see Dukes I , 222 F.R.D. at 176-78, 180, 184, do not justify its refusal to pro-

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vide individual hearings, but rather provide that defendants

are entitled to raise statutory defenses to liability.

See

Domingo, 727 F.2d at 1445; see also McKenzie v. Sawyer ,

684 F.2d 62, 77-78 (D.C. Cir. 1982), abrogated on other

grounds by Berger v. Iron Workers Reinforced Rodmen, Local

201, 170 F.3d 1111 (D.C. Cir. 1999); Hameed v. Int’l Ass’n

of Bridge, Structural & Ornamental Iron Workers Local

Union No. 396, 637 F.2d 506, 520 (8th Cir. 1980) ( “If a black

applicant was rejected for a nondiscriminatory reason, that

applicant would not be a member of the class of potential dis-

criminatees.”). The district court could not properly rely on

cases that preceded Teamsters, see, e.g., Stewart v. Gen.

Motors Corp., 542 F.2d 445, 452-53 (7th Cir. 1976), nor those

from other circuits that are contrary to Teamsters, see, e.g.,

EEOC v. O & G Spring & Wire Forms Specialty Co. , 38 F.3d

872, 879-80 & n.9 (7th Cir.1994); Segar v. Smith , 738 F.2d

1249, 1291-92 (D.C. Cir. 1984).

B

The district court’s crucial misunderstanding of Title VII and Teamsters led to a second mistake: it failed to undertake a proper analysis of whether the proposed class should be certified under Rule 23(b)(2) or Rule 23(b)(3). The majority makes the same error, with nary an acknowledgment that the Supreme Court has provided general guidelines for making this determination. See, e.g., Ortiz, 527 U.S. at 845-46; Amchem, 521 U.S. at 625. Again, to understand how the district court and majority went astray, it is first necessary to describe the basic analytical structure for categorizing classes under Rule 23(b).

1

Rule 23(b) establishes three different types of classes. In certifying a proposed class, courts must determine whether a proposed class fits into the historical models on which Rule 23(b)(1) or (2) were based, or is a more “adventuresome”

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class action, Amchem, 521 U.S. at 614, that must be certified under Rule 23(b)(3). See Ortiz, 527 U.S. at 832-37.

Courts considering whether to certify a class under Rule 23(b)(1) or (2) must take the “prudent course” of staying “close to the historical model ” and “traditional paradigm” as understood by the Advisory Committee in drafting the rule. Ortiz, 527 U.S. at 842, 864. The Advisory Committee intended Rule 23(b)(1) classes to be “limited fund” actions, a type of action where multiple plaintiffs seek to divide a limited fund among claimants. Id. at 838-41. Rule 23(b)(2) allows a court to certify a class action when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). A review of the historical sources relied upon by Ortiz reveals that the Advisory Committee based Rule 23(b)(2) on “various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration. ” Fed. R. Civ. P. 23(b)(2) advisory committee’s note (1966). Specifically, the Committee cited, as the historical predicate of the Rule 23(b)(2) action, cases where plaintiffs endeavored to desegregate public accommodations through prospective declaratory and injunctive relief applicable to the class as a whole. Notably, these historical actions sought the correction of a specific discriminatory policy affecting all members of the class in the same way. See, e.g., Bailey v. Patterson , 323 F.2d 201, 206 (5th Cir. 1963).

None of the cases cited by the Advisory Committee
included claims for monetary relief or individual relief of any kind. Fed. R. Civ. P. 23(b)(2) advisory committee’s note. 22

22The Advisory Committee Notes cites the following cases, none of which involved monetary relief: Potts v. Flax , 313 F.2d 284 (5th Cir. 1963) (class action by two African-American parents against a “system-

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The Advisory Committee Notes explain that, “[t]he subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Id. In other words, Rule 23(b)(2) was designed for classes seeking class-wide injunctive relief to remedy a common injury to the class as a whole, not for classes seeking individual damages, back pay, or other individual relief.

While Rule 23(b)(1) and (2) are linked to well-understood historical models, Rule 23(b)(3) was designed for those cases in which “class-action treatment is not as clearly called for. ” Amchem, 521 U.S. at 615 (internal quotation marks omitted); see also Ortiz, 527 U.S. at 842 (explaining that the “Advisory Committee looked cautiously at the potential for creativity ” under Rule 23(b)(1) and (2) and was “not forward looking as it was in anticipating innovations under Rule 23(b)(3) ”); Fed. R. Civ. P. 23(b)(3) advisory committee’s note . Specifically, Rule 23(b)(3) provides for class actions that potentially allow plaintiffs to seek monetary relief on a class-wide basis. Fed. R. Civ. P. 23(b)(3) advisory committee’s note; Benjamin Kaplan, Continuing Work of the Civil Committee: 1966

wide policy of racial segregation ” in city schools); Bailey, 323 F.2d 201 (class action against laws segregating common carriers); Northcross v. Bd. of Ed., 302 F.2d 818 (6th Cir. 1962) (class action by 18 African-American students and their parents seeking an order that the city end its biracial school system); Brunson v. Bd. of Trs. of Sch. Dist. No. 1 , 311 F.2d 107 (4th Cir. 1962) (class action for school desegregation brought by 42 African-American students); Green v. Sch. Bd., 304 F.2d 118 (4th Cir. 1962) (non-class action by 28 African American students seeking transfer to white schools and an injunction against school segregation); Mannings v. Bd. of Pub. Inst. , 277 F.2d 370 (5th Cir. 1960) (class of AfricanAmerican students seeking an injunction against school segregation); Orleans Parish Sch. Bd. v. Bush , 242 F.2d 156 (5th Cir. 1957) (class action on behalf of African-American school children to desegregate schools); Frasier v. Bd. of Trs. of Univ. of N.C. , 134 F. Supp. 589 (M.D.N.C. 1955) (3-judge court) (class action by three African-Americans challenging a university’s discriminatory admissions policies), aff’d, 350 U.S. 979 (1956).

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Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 393 (1967).

Because these more “adventuresome” class actions,

Amchem, 541 U.S. at 614, raise due process concerns, the

Advisory Committee imposed two safeguards on courts certi-

fying such a class. First, a district court must “find[ ] that the

questions of law or fact common to class members predomi-

nate over any questions affecting only individual members. ”

Fed. R. Civ. P. 23(b)(3). This inquiry ensures that deviation

from “the usual rule that litigation is conducted by and on

behalf of the individual named parties only ” is justified. Cali-

fano v. Yamasaki , 442 U.S. 682, 700-01 (1979). Second, a

district court must give prospective class members the oppor-

tunity to be excluded from the class, which is commonly

known as the right to

“opt out.” Fed. R. Civ. P.

23(c)(2)(B)(v). This option protects “the interests of the indi-

viduals in pursuing their own litigations[, which] may be so

strong here as to warrant denial of a class action altogether. ”

Fed. R. Civ. Pro. 23(c)(2) advisory committee’s note. The

opt-out option also ensures that the class is binding on those

members of the class who choose not to opt out. Eisen v. Car-

lisle & Jacquelin, 417 U.S. 156, 176 (1974).

This right to opt out of a class action, however, is exclusive to classes certified under Rule 23(b)(3). On its face, Rule 23 does not provide absent class members the right to request exclusion in classes certified under Rule 23(b)(2), and it is clear from the Rule’s structure that the Advisory Committee did not intend for such a right to exist under Rule 23(b)(2). 23 Moreover, the Supreme Court has interpreted Rule 23(b)(2) as

23For example, while Rule 23 provides that a court must give members of Rule 23(b)(3) classes notice and the right to opt out of the class, and may give notice to members of Rule 23(b)(2) classes, the Rule is silent on whether a court may give members of Rule 23(b)(2) classes the right to opt out. See Fed. R. Civ. Proc. 23(c)(2) and (d). The inference is that a court may not allow members of a Rule 23(b)(2) class to opt out of the class.

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precluding opt outs. Ticor Title Ins. Co. v. Brown , 511 U.S. 117, 121 (1994). In Ticor, the Supreme Court dismissed its grant of certiorari on the question whether binding absent class members to a class-wide settlement would violate their constitutional due process rights, where the district court certified the class under Rules 23(b)(1)(A) and (b)(2), and the absent members had not had the chance to opt out of the class. Id. at 120-21. The Court first noted that Rule 23(b)(3) permits opt outs, and Rules 23(b)(1) and (b)(2) do not. Id. at 121. From this, the Court reasoned it could avoid the constitutional question raised in the petition for certiorari if it held that “in actions seeking monetary damages, classes can be certified only under Rule 23(b)(3), ” not Rules 23(b)(1) and (b)(2). Id. The Court concluded that this interpretation of Rule 23 “is at least a substantial possibility. ” Id.24

2

In certifying this class under Rule 23(b)(2), the district court failed to take the “prudent course” required by Ortiz, 527 U.S. at 842, and consider the history and structure of Rule 23(b). Had the district court undertaken such a review, it would have been compelled to conclude that the proposed class does not fit the historical model for Rule 23(b)(2) classes, and cannot be certified in that category. First, the proposed class raises an enormous number of individual questions. Although the plaintiffs’ action is in civil rights, the plaintiffs do not ask merely for class-wide injunctive relief (as

24To avoid the import of Ticor, the majority once again claims it is not bound by an order in which six Supreme Court justices have joined, characterizing Ticor as “not even dictum, let alone a holding. ” Maj. Op. at 6224 n.44. Yet, the majority cites no authority for this position, perhaps because the Ninth Circuit has relied upon such orders in prior opinions. See, e.g., Carroll v. Nakatani, 342 F.3d 934, 946-47 (9th Cir. 2003) (relying on an order dismissing a writ as improvidently granted). Indeed, many of the cases relied upon by the majority cite to Ticor. E.g., Reeb, 435 F.3d at 646; Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 447 (6th Cir. 2002); Allison, 151 F.3d at 411 n.3.

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in the cases cited by the Advisory Committee); they also seek individualized relief in the form of back pay and punitive damages. As explained above, this may result in up to 1.5 million individual questions about Wal-Mart’s liability for individual relief. A class that raises so many individual questions also raises the concerns the Advisory Committee expressly considered in drafting Rule 23(b)(3), and requires the court to ask whether “the questions of law or fact common to class members predominate over any questions affecting only individual members.” Fed. R. Civ. P. 23(b)(3). Given the facts in this case, it is far from certain that the proposed class could be certified under the more flexible model provided by Rule 23(b)(3), let alone meet the narrower historical model for Rule 23(b)(2).

Second, the class’s claims for monetary relief raise the very due process concerns considered by the Advisory Committee in drafting Rule 23(b)(3). The district court acknowledged that due process required that absent class members in this case be given the right to opt out of the class. See Dukes I , 222 F.R.D. at 172-73. Because Rule 23(b)(2) does not permit opt-outs, such recognition should have led the district court to determine that certification under Rule 23(b)(2) was inappropriate, and to instead consider whether the class met the criteria for certification under Rule 23(b)(3).

Given the Supreme Court’s direction to adhere to the historical models in considering which classes can be certified under Rule 23(b)(1) and (2), see Ortiz, 527 U.S. 815; Amchem, 521 U.S. 591, there was no reason for the district court here to sidestep the procedural requirements of Rule 23(b)(3) to certify this class under Rule 23(b)(2). See Eubanks v. Billington, 110 F.3d 87, 93 n.9 (D.C. Cir. 1997) (noting that when notice and opt-outs are required by the district court, “the arguments supporting certification . . . under subdivision (b)(2) [as opposed to (b)(3)] are surprisingly weak ”). This is particularly true given that the district court’s primary justification for certification under Rule 23(b)(2) was that the suit

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was similar to the historical model contemplated by the Advisory Committee. See Dukes, 222 F.R.D. at 170. In certifying this class under Rule 23(b)(2), the district court abused its discretion.

C

In holding that the district court did not err in certifying the class under Rule 23(b)(2), the majority focuses not on the text, structure, and history of this rule, but rather on a single sentence in the Advisory Committee Notes which states that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Maj. Op. at 6215 (quoting Fed. R. Civ. P. 23(b)(2) advisory committee’s notes). The majority infers from this single sentence that Rule 23(b)(2) must therefore extend to cases in which the appropriate final relief does not relate “exclusively or predominantly to money damages. ” Maj. Op. at 6215. The majority then turns to a dictionary definition of the word “predominant” and derives a new test: “a class must seek only monetary damages that are not ‘superior [in] strength, influence, or authority’ to injunctive and declaratory relief.” Maj. Op. at 6215 (citing Merriam-Webster’s Collegiate Dictionary 978 (11th ed. (2004)).25 In furtherance of this test, the majority directs district courts to consider “the objective ‘effect of the relief sought’ on the litigation, ” by recourse to “[f]actors such as [1] whether the monetary relief sought determines the key procedures that will be used, [2] whether it introduces new and significant legal and factual issues, [3] whether it requires individualized hearings, and [4] whether

25The majority admits that it breaks with the Second Circuit in rejecting the subjective intent test, as well as with the Fifth, Sixth, Seventh, and Eleventh Circuits in rejecting the “incidental damages standard” test. Maj. Op. at 6215. In creating this three-way circuit split, the majority not only ignores our own precedent, see Zimmerman v. Or. Dep’t of Justice , 170 F.3d 1169, 1184 (9th Cir. 1999) (we create a circuit split “only after the most painstaking inquiry ”), but aggravates the already-existing inconsistency between the circuits.

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its size and nature . . . raise particular due process and manageability concerns.” Maj. Op. at 6217. 26

But in upholding the district court’s certification with regard to back pay, the majority fails to apply these factors from its own test. Had it done so, it would have concluded that the district court erred in certifying the class under Rule 23(b)(2). First, the plaintiffs’ claim for back pay triggers the need for a key procedure (factor 1), namely the requirement for individualized hearings (factor 3). Second, the plaintiffs’ claims for individual relief introduced significant new legal and factual issues into the case (factor 2), including WalMart’s defenses to liability, as well as due process concerns that necessitate opt-outs (factor 4). Third, the need for individualized hearings raises serious manageability concerns (factor 4).

The majority avoids these issues, however, and dismisses Wal-Mart’s arguments as mere objections to the district court’s “trial plan.” Maj. Op. at 6231. The majority “express[es] no opinion regarding Wal-Mart’s objections to the district court’s tentative trial plan” and concludes that there are many steps the district court could take “that would allow this class action to proceed in a manner that is both manageable and in accordance with due process,” Maj. Op. at 6232 (citing Hilao v. Estate of Marcos , 103 F.3d 767, 782-87 (9th Cir. 1996)). 27

26As formulated by the majority, this test is essentially unusable. When is back pay “superior in strength ” to an injunction? When do punitive damages have more “influence” than declaratory relief? It is unlikely that this test, particularly as applied by the majority, provides the district court with the guidance it needs on remand.
27Quite apart from the question whether Wal-Mart is objecting to the certification of the class (as it claims) or to the trial plan (as the majority states), the procedure set forth in Hilao cannot be used in a Title VII case and the majority errs in suggesting it can. We held in Hilao that a court could determine compensatory damages for over 10,000 claimants in a human rights action by means of a formula without violating the due process rights of the defendants. See Hilao, 103 F.3d at 782-87; but see id.

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The majority’s failure to address these objections runs contrary to the Supreme Court’s mandate, Ortiz, 527 U.S. at 861, and the majority’s own rule, Maj. Op. at 6217 (stating that courts must consider “whether [the proposed class action] requires individualized hearings” when it determines whether a class may be certified under Rule 23(b)(2)).

Presumably because the application of its own test would lead to the conclusion that the district court erred, the majority does not apply its test (or remand back to the district court to apply it, as it did with the punitive damages class). Instead, the majority determines that the back-pay remedy does not predominate over the claims for injunctive and declaratory relief for two reasons: (1) the calculation of back pay in Title VII cases “generally involves [relatively un]complicated factual determinations and few[ ] individualized issues,” and (2) back pay is a “ ‘make whole’ remedial scheme, a scheme to which the drafters of the Federal Rules of Civil Procedure clearly intended Rule 23(b)(2) to apply. ” Maj. Op. at 6220-21 (alterations in original) (citations omitted). As noted above, neither of these rationales is correct. In this case, back pay cannot be calculated until after Wal-Mart has had an opportunity to raise its defenses, which will involve the litigation of a multitude of individual issues. Moreover, while the drafters of Rule 23 intended that classes involving demands for

at 788 (Rymer, J. dissenting) (“If due process in the form of a real proveup of causation and damages cannot be accomplished because the class is too big or to do so would take too long, then (as the Estate contends) the class is unmanageable and should not have been certified in the first place.”); Cimino v. Raymark Indus., Inc ., 151 F.3d 297, 319 (5th Cir. 1998) (refusing to apply Hilao and noting that “we find ourselves in agreement with the thrust of the dissenting opinion there ”). But Hilao has no bearing on this effort to certify a Title VII class action, because Title VII itself, and the Supreme Court’s interpretation of Title VII pattern-orpractice actions, see Teamsters, 431 U.S. at 360, give defendants their right to a defense to each individual’s claim. See 42 U.S.C. § 2000e5(g)(2).

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injunctive relief be certified under Rule 23(b)(2), the majority
provides no evidence that the Advisory Committee thought Rule 23(b)(2) was appropriate for classes seeking back pay. 28

As to claims for punitive damages, the majority remands the case to the district court to determine under its new test whether the case could be certified under Rule 23(b)(2). Maj. Op at 6226. Before doing so, however, it determines in a single sentence that punitive damages do not require individualized determinations because the plaintiffs allege that WalMart’s policy “affects all class members in a similar way. ” Maj. Op. at 6226. This unprecedented holding, made with virtually no analysis, is wrong both as a matter of law and fact. As noted above, it conflicts with the statutory language of Title VII, see 42 U.S.C. § 2000e-5(g)(2)(B), and with the

28The majority claims it need not consider the problem posed by the class’s pursuit of individual monetary relief because it is merely “join[ing] the consensus view that a request for back pay in a Title VII case is fully consistent with the certification of a Rule 23(b)(2) class action, ” citing as support Thorn v. Jefferson-Pilot Life Insurance Co. , 445 F.3d 311, 331-32 (4th Cir. 2006) and Coleman, 296 F.3d 443. Maj. Op. at 6221-22 & n.41. Again, the majority misses the point. The issue is not that plaintiffs seek back pay; the issue is Wal-Mart’s statutory right to raise individual defenses in response to the request for back pay, and whether such individualized treatment makes class-wide relief improper. Thorn and Coleman reinforce this point. In Coleman, the Sixth Circuit held that the district court abused its discretion in certifying a class that included a claim for compensatory damages, in large part because such relief would require individual determinations as to each class member, thus obviating the efficiencies of pursuing the action on a class-wide basis. 296 F.3d at 449. Likewise, in Thorn, the Fourth Circuit upheld the district court’s denial of class certification, in part because the availability of a statute of limitations defense presented individual issues that could not be determined on a class-wide basis. 445 F.3d at 327. Thorn distinguished prior cases that certified classes requiring the calculation of back pay on the ground that such calculations “generally involve[d] . . . fewer individualized issues.” Id. at 331 (alteration and internal quotation marks omitted). When considered as a whole (rather than taking a few phrases out of context), Thorn and Coleman support the conclusion that class-wide relief is inappropriate where claims may need be litigated on an individual basis.

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Supreme Court’s reasoning regarding punitive damages, see BMW, 517 U.S. at 581. Moreover, it is factually wrong: even assuming there was significant proof of a company-wide policy of discrimination, plaintiffs do not allege that Wal-Mart’s alleged policy affected all class members in the same way for purposes of determining monetary relief. Plaintiffs acknowledge that Wal-Mart’s allegedly discriminatory practices have affected class members differently, stating that “different class members may have been under-compensated in different amounts; some employees may have been denied promotion to assistant manager while others may have been denied promotion to store manager. ” The district court cannot reasonably determine whether an individual class member was injured, let alone the nature and amount of injury, until the second phase of individual hearings has been accomplished. Other circuits addressing the issue have agreed with this analysis. See, e.g., Reeb, 435 F.3d at 651; Lemon, 216 F.3d at 581; Allison, 151 F.3d at 417. By untethering punitive damage claims in a Title VII case from evidence regarding how the plaintiffs were actually injured, the majority opens the door to results that would be unfair to both claimants and defendants in future Title VII class actions.

IV

The class action device is a procedural mechanism to aggregate individual claims for purposes of judicial efficiency. Falcon, 457 U.S. at 159. By allowing claims to go forward that ordinarily would not be litigated, the class action has proven to be an invaluable tool in litigating civil rights and other cases involving systemic discrimination. But, because Rule 23 creates a procedural device that constitutes “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only,” Califano, 442 U.S. at 700-01, courts must use it carefully, ensuring that the proposed class action complies with controlling law and does not jeopardize the parties’ substantive rights. See Gulf Oil Co. v. Bernard , 452 U.S. 89, 100 (1981) (holding that, in

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considering a proposal to certify a class, the district court’s discretion is “bounded by the relevant provisions of the Federal Rules”). The “[m]ere invocation of the language of Rule 23 in Title VII suits is no mystical legal talisman guaranteeing class treatment.” Doniger v. Pac. Nw. Bell, Inc. , 564 F.2d 1304, 1312 (9th Cir. 1977).

The district court here failed in its duty to apply Rule 23 carefully and correctly. In its enthusiasm for allowing the class action to proceed, the district court sped forward, dodging substantive and procedural hurdles, and making an endrun around Title VII, the Rules Enabling Act, and Supreme Court precedent. It conducted no rigorous analysis to determine “the existence of a class of persons who have suffered the same injury” as the class representatives. Falcon, 457 U.S. at 157. It certified the class even after determining that compliance with the Supreme Court’s framework in Teamsters was infeasible. Finally, the district court failed to consider the text, structure, and historical framework of Rule 23(b) that should have guided its analysis. The resultant class certification runs directly contrary to controlling precedent.

Despite these flaws, the majority affirms those legal errors with even less analysis and inquiry than the district court. Never before has such a low bar been set for certifying such a gargantuan class. The majority’s ruling provides scant limits to the types of classes that can be certified. Put simply, the door is now open to Title VII lawsuits targeting national and international companies, regardless of size and diversity, based on nothing more than general and conclusory allegations, a handful of anecdotes, and statistical disparities that bear little relation to the alleged discriminatory decisions. The district court abused its discretion in certifying this class. The majority errs in concluding otherwise. While class actions have a vital role to play in the battle against discrimination, the majority’s decision to allow this case to go forward epitomizes the Supreme Court’s warning that “the rulemakers’ prescriptions for class actions may be endangered by those who

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embrace Rule 23 too enthusiastically just as they are by those who approach the Rule with distaste. ” Amchem, 521 U.S. at 629 (internal citations, quotation marks, and alterations omitted). I respectfully dissent.

KOZINSKI, Chief Judge, dissenting:
Maybe there’d be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority’s approved class held a multitude of jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member’s job, location and period of employment. Some thrived while others did poorly. They have little in common but their sex and this lawsuit.
I therefore join fully Judge Ikuta’s dissent.

 
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17

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20 BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, CHRISTINE KWAPNOSKI,
21 DEBORAH GUNTER, KAREN WILLIAMSON AND EDITH ARANA, on
22 behalf of themselves and all others similarly situated,
23
Plaintiffs,
24
vs.
25
WAL-MART STORES, INC.,
26
Defendant
27
28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

Case No. C-01-2252 MJJ PLAINTIFFS’ THIRD AMENDED COMPLAINT [CLASS ACTION] DEMAND FOR JURY TRIAL
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Case No. C-01-2252 MJJ

1

INTRODUCTION

2

1. Wal-Mart is the largest retailer in the world and the largest private employer in the

3 United States. Through its Wal-Mart and Sam’s Club divisions, it is the industry leader not only in

4 size, but also in its failure to advance its female employees. There are two workforces at Wal-Mart.

5 By far the largest workforce is female, which comprises over 72% of the hourly sales employees, yet

6 only one-third of management positions. This workforce is predominantly assigned to the lowest

7 paying positions with the least chance of advancement. The other workforce is male. This

8 workforce is the reverse image of the female workforce - it comprises less than 28% of the hourly

9 sales workers, yet holds two-thirds of all store management positions and over 90% of the top Store

10 Manager positions. This disparate distribution of the genders is the result of purposeful

11 discrimination and of practices that serve no reasonable business purpose yet have a disproportionate

12 impact on women.

13

2. This class action is accordingly brought by present and former Wal-Mart employees

14 on behalf of themselves and all other similarly situated women who have been subjected to Wal-

15 Mart’s continuing policies and practices of gender discrimination. Plaintiffs, and the class that they

16 represent, charge that Wal-Mart discriminates against its female employees by advancing male

17 employees more quickly than female employees, by denying female employees equal job

18 assignments, promotions, training and compensation, and by retaliating against those who oppose its

19 unlawful practices.

20

3. This action seeks an end to Wal-Mart’s discriminatory practices, make whole relief

21 for the class, and punitive damages.

22

JURISDICTION AND VENUE

23

4. Plaintiffs’ claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

24 §§ 2000e, et seq. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 2000e5(f), 28

25 U.S.C. §§ 1331 and 1343(a)(4). The Court has supplemental jurisdiction pursuant to 28 U.S.C. 1367

26 over claims under the California Fair Employment & Housing Act, Government Code § 12920, et.

27 seq.
28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

5. Venue is proper in this district pursuant to 42 U.S.C. § 2000e5(f) and 28 U.S.C. §

2 1391(b) & (c). Named plaintiffs’ claims arose in California. Members of the plaintiffs’ class reside

3 throughout the United States, including the Northern District of California. Many of the acts

4 complained of herein occurred in this District and gave rise to the claims alleged. Wal-Mart

5 operates over 140 stores and Sam’s Clubs in California where it employs more than 40,000 workers.

6 It operates at least 18 stores in the Northern District of California.

7

PARTIES

8

6. Plaintiff Betty Dukes is an African American woman and a resident of Contra Costa

9 County, California. She is currently employed by Wal-Mart Stores, Inc.

10

7. Plaintiff Patricia Surgeson is a woman and a resident of Solano County, California.

11 She was employed by Wal-Mart Stores, Inc. from August 1997 to March 2001. Plaintiffs are

12 informed and believe she is eligible for rehire.

13

8. Plaintiff Cleo Page is an African American woman and a resident of Tulsa,

14 Oklahoma. She was employed by Wal-Mart Stores, Inc. in Livermore, California from

15 approximately December 1999 to November 2000. Plaintiffs are informed and believe she is

16 eligible for rehire.

17

9. Plaintiff Christine Kwapnoski is a woman and a resident of Concord, California. She

18 has been employed by Wal-Mart Stores, Inc. since 1986, and has worked for a Sam’s Club in

19 Concord, California since1994. She continues to work at that Sam’s Club.

20

10. Plaintiff Deborah Gunter is a woman and a resident of Riverside County, California.

21 She was employed by Wal-Mart Stores, Inc. from April 1996 until August 1999. Plaintiffs are

22 informed and believe she is eligible for rehire.

23

11. Plaintiff Karen Williamson is a woman and a resident of Butte County, California.

24 She was employed by Wal-Mart from 1995 to October 1999 at the Wal-Mart store in Pleasanton,

25 California.

26

12. Plaintiff Edith Arana is an African American woman and a resident of Los Angeles

27 County. She was employed by Wal-Mart from 1995 until October 2001.
28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

13. Defendant Wal-Mart Stores, Inc. is a Delaware corporation with stores throughout

2 California. Its corporate headquarters are located in Arkansas. Wal-Mart Stores, Inc. operates retail

3 stores doing business as Wal-Mart, Wal-Mart Supercenters and Sam’s Club Stores.

4

CLASS ALLEGATIONS

5

14. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil Procedure

6 on behalf of a class of all past, present and future female employees of Wal-Mart’s retail stores

7 (including Wal-Mart discount, supercenter and neighborhood markets and Sam’s Club stores,

8 hereinafter collectively referred to as “Wal-Mart”) in the United States. Plaintiffs are members of

9 the class they seek to represent.

10

15. The members of the class are sufficiently numerous that joinder of all members is

11 impracticable. Plaintiffs are informed and believe that the class exceeds 700,000 present and former

12 female employees of Wal-Mart.

13

16. There are questions of law and fact common to the class and these questions

14 predominate over individual questions. Such questions include, without limitation, whether

15 defendant’s common operating practices and procedures discriminate against its female employees;

16 whether defendant’s policies have an adverse impact upon the class and, if so, whether this impact

17 can be justified by business necessity; whether defendant has a policy and practice of retaliating

18 against class members who object to or oppose unlawful employment practices; and whether

19 injunctive and other equitable remedies and punitive damage relief for the class is warranted.

20

17. The claims alleged by the plaintiffs are typical of the claims of the class.

21

18. The named plaintiffs will fairly and adequately represent and protect the interests of

22 the class.

23

19. This action is properly maintainable under both Federal Rule of Civil Procedure Rule

24 23(b)(2) and (3) because defendant has acted or refused to act on grounds generally applicable to

25 the class, thereby making appropriate final injunctive relief or corresponding declarative relief with

26 respect to the class as a whole; and because questions of law and fact common to the class

27 predominate over any questions affecting only individual members, and a class action is superior to

28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1 other available methods for the fair and efficient adjudication of this case. This action is also

2 properly maintainable under Rule 23(c)(4)(A) for all class issues alleged herein.

3 WAL-MART’S OPERATION AND ITS GENERAL PRACTICE OF DISCRIMINATION

4

20. Wal-Mart is the largest private employer in the United States and the world’s largest

5 retailer. Through its Wal-Mart and Sam’s Club divisions, it operates over 3000 stores across the

6 country, encompassing every state. There are so many Wal-Mart locations in the United States that,

7 according to Wal-Mart, the average store is within 30 miles of the next Wal-Mart store. In the

8 United States, Wal-Mart employs nearly one million “associates,” Wal-Mart’s term for its hourly

9 employees. In its last fiscal year, it had sales exceeding $200 billion. It claims that it has 100

10 million customers each week.

11

21. Wal-Mart employs uniform employment and personnel policies throughout the

12 United States. All of its stores are linked by state-of-the-art electronic and video communications,

13 through which all stores regularly report payroll, labor and other employment data. Regardless of

14 division, there are uniform policies for employees, uniform “orientation” procedures, uniform salary,

15 assignment, pay, training, and promotion policies. All stores are regularly audited for compliance

16 with these uniform, company-wide policies and procedures.

17

22. The vast majority of Wal-Mart store employees are hourly paid sales associates, who

18 report to department heads. Each store has a number of assistant managers who have different

19 functional responsibilities, one or more co-managers and a store manager. District and regional

20 managers supervise the stores.

21

23. Few objective requirements or qualifications for specific store assignments,

22 promotions, or raises exist. Salaries are supposed to conform to general company guidelines, but 23 store management has substantial discretion in setting salary levels within salary ranges for each 24 employee. Salaries are also adjusted based on performance reviews, which are largely based on 25 subjective judgments of performance. Plaintiffs are informed and believe that Wal-Mart policy 26 prohibits employees from exchanging information about their salary levels.

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

24. The hourly sales workforce at Wal-Mart is predominantly female, representing over

2 72% of all hourly employees. Yet, male and female employees are not evenly distributed among the

3 departments in the store. In some departments and positions, such as furniture, garden, electronics,

4 hardware, sporting goods, guns, produce, paper goods and chemicals, and stocking, males are

5 disproportionately assigned. In other departments and positions, such as cashier, customer service,

6 health and beauty aids, cosmetics, house wares, stationery, toys, layaway, fabrics and clothes,

7 women are disproportionately assigned. Plaintiffs are informed and believe that the male-dominated

8 departments and jobs are better paid and offer greater opportunities for advancement than the

9 female-dominated positions and departments.

10

25. Male employees are more likely than female employees to obtain “cross-training” in

11 other departments or to receive training and support to enter into departments that would aid their

12 advancement.

13

26. Plaintiffs are informed and believe that female employees are paid less than male

14 employees who perform substantially similar work, with similar or lesser skills and experience.

15 Plaintiffs are further informed and believe that segregated assignment patterns exacerbate such

16 unequal pay, because men are more likely to be assigned to departments that pay better than

17 departments to which women are assigned.

18

27. Although women comprise the substantial majority of all hourly employees, the

19 source from which most managers are drawn, their representation in management is the polar

20 opposite. Women hold only about one-third of the positions that Wal-Mart identifies as

21 management. However, even this figure overstates the proportion of female managers in true

22 management positions. Thus the “one third” of management positions held by women includes

23 traditionally “female” positions, such as assistant managers whose primary responsibility is

24 supervising cashiers, and the lowest level of managers. Plaintiffs are informed and believe that

25 women comprise less than 10% of all Store Managers and approximately 4% of all District

26 Managers. There are very few female Regional Managers. There is only one woman among the 20

27 executive officers of the company. Plaintiffs are informed and believe that even when women are

28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1 promoted, on average they are advanced later, and then more slowly, than similarly situated male

2 employees.

3

28. The workforce profile of Wal-Mart does not reflect the industry or the profile of its

4 largest competitors. In fact, although it is the largest discount retailer in the country, it lags far

5 behind its competitors in the promotion of women. Thus, while Wal-Mart’s store management is

6 only about one-third female, among its 20 top competitors women comprise over 56% of

7 management, even though the proportion of hourly workers that are female at these companies is

8 comparable to Wal-Mart. These differences are consistently found around the country. Moreover,

9 these differences are longstanding. In fact, female representation among managers at Wal-Mart is at

10 a substantially lower level today than the level of representation among Wal-Mart’s competitors in

11 1975.

12

29. This pattern of unequal assignments, pay, training, and advancement opportunities is

13 not the result of random or non-discriminatory factors. Rather, it is the result of an on-going and

14 continuous pattern and practice of intentional sex discrimination in assignments, pay, training and

15 promotions, and reliance on policies and practices that have an adverse impact on female employees

16 that cannot be justified by business necessity, and for which alternative policies and practices with

17 less discriminatory impact could be utilized that equally serve any asserted justification. Plaintiffs

18 are informed and believe that such policies and practices include, without limitation:

19

a. Failure to consistently post job and promotional openings to ensure that all

20

employees have notice of and an opportunity to seek advancement or more

21

desirable assignments and training.

22

b. Reliance upon unweighted, arbitrary and subjective criteria utilized by a

23

nearly all male managerial workforce in making assignments, training, pay,

24

performance review and promotional decisions. Even where Wal-Mart policy

25

states objective requirements, these requirements are often applied in an

26

inconsistent manner and ignored at the discretion of management.

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

c. Reliance on gender stereotypes in making employment decisions such as

2

assignments, promotions, pay and training.

3

d. Pre-selection and “grooming” of male employees for advancement, favorable

4

assignments and training.

5

e. Maintenance of largely sex-segregated job categories and departments.

6

f. Deterrence and discouragement of female employees from seeking

7

advancement, training, and favorable assignments and pay.

8

g. Paying female employees lower compensation than similarly situated men.

9

h. Assigning women to lower paying positions, and positions with lesser

10

advancement potential than those given to men, and advancing women more

11

slowly than similarly situated male employees.

12

i. Providing less training and support to female employees and managers than

13

that given to male employees and managers.

14

j. Harassing female employees interested in advancement and subjecting them

15

to a hostile work environment.

16

k. Requiring, as a condition of promotion to management jobs, that employees

17

be willing to relocate, often to significantly distant stores, and applying this

18

policy to require frequent and substantial relocations of its managers without

19

any reasonable business justification. Plaintiffs are further informed and

20

believe that the relocation policy is applied disparately between male and

21

female employees, to the disadvantage of female employees.

22

l. Retaliating against female employees who have complained either internally

23

or externally about Wal-Mart’s treatment of its female employees. Wal-Mart

24

maintains a company-wide, toll free telephone number, which it encourages

25

employees to use if they have a problem or complaint in their store or with

26

store management. Plaintiffs are informed and believe that Wal-Mart

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

retaliates against women who use this number to report discrimination, sexual

2

harassment or other unfair working conditions.

3
ALLEGATIONS OF NAMED PLAINTIFFS
4
BETTY DUKES
5
30. Betty Dukes is an African American woman currently employed in Wal-Mart store
6
#1615, located in Pittsburg, California. She was hired as a part-time front-end cashier at the
7
Pittsburg store in May 1994. Within one year after her hire date, Ms. Dukes received an excellent
8
90-day review, a promotion to full-time status and a merit pay raise. She was promoted to
9
Customer Service Manager in June 1997, which also included an increase in salary.
10
31. In September 1997, Ms. Dukes began to experience harsh and discriminatory
11
treatment from head Customer Service Manager Leilani (Lonnie) Barrett and male Store Manager
12
Ken Cagle. In November 1997, she complained to male District Manager Chuck Salby about the
13
discriminatory treatment.
14
32. After she complained, Ms. Dukes experienced retaliation from Wal-Mart store
15
management, beginning with a disciplinary write-up on February 13, 1998, for returning late from
16
her breaks, even though male and/or Caucasian employees returned late from their breaks or failed
17
to clock out for breaks and were not disciplined. Ms. Dukes was also written up on March 31,
18
1998, for having a front-end cashier cover her lunch break, even though she had used this procedure
19
many times before without incident and Caucasian employees used this procedure without being
20
reprimanded. Ms. Dukes complained to male District Manager Jay King but he simply referred her
21
back to the store manager.
22
33. On June 29, 1999, Ms. Dukes called in sick. Store Manager Cagle reacted in a highly
23
negative and unprofessional way towards her request, even though she was entitled to use sick
24
leave. Ms. Dukes called the district management office about Cagle and, ultimately, she spoke with
25 the male Loss Prevention District Manager Charles Chibante. Only after she threatened to make a
26

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

9
Case No. C-01-2252 MJJ

1 complaint to the Wal-Mart home office in Arkansas did she receive a reluctant apology from Store

2 Manager Cagle. However, Cagle’s apology only served to escalate the retaliation.

3

34. In July of 1999, Ms. Dukes expressed interest in becoming a department manager by

4 requesting of Ken Cagle that she receive training for that position, but she was never given the

5 opportunity to be trained. Rather, shortly thereafter on August 14, 1999, Plaintiff was demoted

6 from Customer Service Manager to cashier and falsely accused of violating company policy while

7 performing a transaction that had been performed many times by Plaintiff and other employees

8 without incident. The demotion was Wal-Mart’s retaliation for Plaintiff’s numerous complaints of

9 discrimination.

10

35. On August 18, 1999, Ms. Dukes traveled to the Wal-Mart District Office in

11 Livermore and made a complaint to male Wal-Mart District Manager John Scatlin about her

12 demotion and her concerns about employment discrimination at the Pittsburg Wal-Mart store. Wal-

13 Mart took no steps to address Dukes’ concerns.

14

36. As a result of the demotion, Plaintiff became ineligible for several promotions to

15 positions that she was qualified to perform from August 1999 to August 2000, the year following

16 the demotion. For example, a support manager position was filled in July or August 2000 by Rosa

17 Trevino (Hispanic female). Between July and September 2000, the position of Domestics

18 Department Manager was open and filled by Joseph Topasna (Filipino male). As a result of the

19 demotion, Ms. Dukes’ hours and hourly wage were reduced.

20

37. After August 14, 2000, when Ms. Dukes once again became eligible for promotion, at

21 least four department manager and/or support manager positions at the Pittsburg store were filled by

22 men. None of these positions was posted. Between October and December 2000, Richard Morales

23 (Hispanic male) was promoted from night receiving stocker to night support manager. In November

24 2000, Joseph Topasna (Filipino male) was promoted to support manager. Between October and

25 December 2000 Robert (Aaron) Mendez (Hispanic male) was promoted to support manager. In

26 December 2000 or January 2001, Will Martines (Caucasian male) filled the position of Department

27 Manager for Tire Lube Express (TLE).
28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

38. After the demotion, Ms. Dukes was discouraged from seeking other positions because

2 of the way she and other women had been treated by Wal-Mart. Dukes did not apply for three

3 department manager positions open after August 14, 2000 (Hardware, Over The Counter Pharmacy

4 and Stationery) because she was discouraged after the discriminatory treatment she and other

5 women received from Wal-Mart managers.

6

39. Furthermore, Ms. Dukes’ knowledge of Wal-Mart’s discriminatory practices against

7 other women at the Pittsburg store also discouraged her from seeking a promotion. In June of 2000,

8 Brooke Terrell (African American female) was demoted from department manager to a sales floor

9 position, although she continued to fulfill the responsibilities of a department manager until a

10 replacement was found. The department manager position vacated by Terrell was filled by Kevin

11 Sims (African American male). In 2000, Trina Wallace (African American female) was demoted

12 from a department manager position to a sales floor position and later terminated. The department

13 manager position vacated by Wallace was ultimately filled by Kendall Dimery (African American

14 male). In 1999, Darla Harper (Caucasian woman) was denied a department manager job in which

15 she had expressed an interest. Without posting this position, Wal-Mart selected Spencer Ostrom

16 (Caucasian male) to fill this position.

17

40. On or about June 1, 2000, Dukes filed a charge of discrimination with the California

18 Department of Fair Employment & Housing (DFEH), a copy of which is attached hereto as Exhibit

19 1 and incorporated by reference. On June 15, 2000, she received a right to sue letter, and

20 commenced this action in a timely manner.

21

41. On or about May 2, 2001, Dukes submitted a charge of discrimination to the United

22 States Equal Opportunity Commission (EEOC), a copy of which is attached as Exhibit 2 and

23 incorporated by reference. She received a right to sue letter on or about May 22, 2001 and

24 commenced this action in a timely manner.

25 PATRICIA SURGESON

26

42. Patricia Surgeson was hired by Wal-Mart in Vacaville, California in August 1997 as a

27 sales associate. She was assigned to the Tire and Lube Express department and, within two weeks of

28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1 her hire, was subjected to sexually harassing remarks and touching by a co-worker. After reporting

2 the harassment, she was transferred to the health and beauty aids department. She repeatedly

3 applied to transfer to other positions but was denied.

4

43. In November 1998, Surgeson was assigned to the Lay-Away Department. In

5 approximately May 1999, she was made the Lay-Away Department manager. Because she was

6 assuming additional responsibilities, her Store Manager promised her a raise. Despite repeated

7 requests, Surgeson was never given the promised raise.

8

44. In late 1999, the Store Manager decided that the Lay-Away Department no longer

9 needed a manager. Ms. Surgeson’s department manager title was taken away but she was expected

10 to continue performing manager responsibilities. When she left the department, a male employee

11 who was given the position and title of Lay-Away Department Manager replaced her. He was paid

12 more than Ms. Surgeson had been paid for working in the same position with the same

13 responsibilities.

14

45. In June or July 2000, Ms. Surgeson was moved to a position in the Cash Office.

15 Although she assumed greater responsibilities, she again did not receive a raise. She was expected

16 to work overtime without lunches or breaks, locked in the cash office. In her position, she became

17 aware that many male employees were being paid more than she was, although they had worked at

18 Wal-Mart for less time and had less responsibility.

19

46. In January 2001, she requested a merit increase. Her request was ignored for two

20 months.

21

47. Ms. Surgeson was interested in attending the assistant manager-training program and

22 in being promoted to assistant manager. She asked one of her managers for information about how

23 to qualify for the program, as she had not seen any information posted about such opportunities. The

24 manager provided only a vague response.

25

48. As a result of the discriminatory pay and working conditions, Ms. Surgeson resigned

26 in March 2001.

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

49. On or about May 14, 2001, Surgeson filed a charge of discrimination with the EEOC,

2 a copy of which is attached hereto as Exhibit 3 and incorporated by reference. The EEOC issued a

3 notice of right to sue on May 31, 2001, and this action was timely commenced thereafter.

4 CLEO PAGE

5

50. Cleo Page worked at the Wal-Mart store in Livermore, California from approximately

6 October 1998 to late November 2000. Before joining the Livermore store, Page had worked as a

7 cashier and Customer Service Manager at a Wal-Mart Supercenter store in Tulsa, Oklahoma and,

8 briefly, as a sales associate in the Returns Department at a Wal-Mart store in Union City,

9 California. Page had substantial retail experience before joining Wal-Mart.

10

51. Page initially worked as an associate in the Returns Department at the Livermore

11 store but, within weeks, was promoted to Customer Service Manager.

12

52. In late December 1999, Page applied for a Department Manager position in the Men's

13 Department. She was interviewed by an Assistant Manager. During the interview, the Assistant

14 Manager stated to Page that it was a man's world and that men control managerial positions at Wal-

15 Mart. Although Page was offered the Department Manager position, Wal-Mart later rescinded the

16 offer and selected a Caucasian female.

17

53. Page complained to her Store Manager that she was denied the Department Manager

18 position. Page informed her Store Manager that she wanted to make Wal-Mart her career and that

19 she wanted to be promoted to a management position. The Store Manager informed Page that she

20 needed to obtain more training and promised to assist her in obtaining that training. Despite this

21 promise, at no time during her employment at Wal-Mart did Page receive training to become a

22 manager. Shortly thereafter, the Department Manager position for which Page was rejected

23 reopened and Page was promoted into that position. Three weeks later, Page was transferred to

24 Department Manager in the Boy's Department.

25

54. In approximately June 2000, Page applied for a Support Manager position. Despite

26 her previous retail experience, Page was not selected. Instead, Wal-Mart selected a Caucasian male

27 for that position.
28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1

55. In approximately August 2000, Page learned that there were two Support Manager

2 positions that were open. Page informed her Store Manager that she had previously applied for the

3 position and was interested in being considered again. Once again, Page was not selected for a

4 Support Manager position. Instead, a Latina and a Caucasian female were selected. The Store

5 Manager explained to Page that the reason she was not selected was because she needed training

6 and experience working in a larger department. At no time did the Store Manager assist Page in

7 obtaining training to become a manager.

8

56. In approximately October 2000, Page asked for but did not receive assistance from

9 other employees to complete a project that she was unable to complete on her own. When Page left

10 work at the end of her shift without completing the project, a male Caucasian Assistant Manager

11 threatened to terminate her. Another Caucasian male employee informed Page that he had done

12 something similar for which he had never been reprimanded.

13

57. In approximately November 2000, Page became aware that there was an opening for

14 a Department Manager in Sporting Goods. Page was discouraged from applying for the position

15 because the Store Manager told Page that she wanted a man in that position because customers felt

16 more comfortable buying sporting goods from a man. A Caucasian male was selected as the new

17 Department Manager in Sporting Goods.

18

58. In approximately November 2000, Page learned that she was earning at least $4 an

19 hour less than the male Department Manager in Sporting Goods, despite the fact that Page had more

20 seniority than he.

21

59. Throughout her employment at Wal-Mart, Page expressed her interest in being

22 promoted to management. Despite her interest and experience, she was never considered for an

23 Assistant Manager position or given training to become a manager.

24

60. During Page's employment at the Livermore Wal-Mart store, male employees,

25 including an Assistant Manager, made derogatory remarks about women, such as complaining that

26 men were "outnumbered by women" and that "women were taking over." In addition, male

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1 employees often asked other male employees whether they knew of men who would be interested

2 in working at Wal-Mart.

3

61. On or about August 31, 2001, Ms. Page filed a charge of discrimination with the

4 Equal Employment Opportunity Commission (EEOC) and with the California Department of Fair

5 Employment and Housing (DFEH), a copy of which is attached hereto as Exhibit 4 and

6 incorporated by reference. The DFEH issued a right to sue letter on or about September 12, 2001.

7 She also received a right to sue letter from the EEOC on or about February 14, 2002..

8 CHRIS KWAPNOSKI

9

62. Chris Kwapnoski was hired by Wal-Mart in 1986, and was originally assigned to a

10 Sam’s Club in Missouri. Ms. Kwapnoski worked as a cashier in the cash office and in claims.

11

63. While at the Sam’s Club in Missouri, Ms. Kwapnoski was sent to help open a new

12 Sam’s Club in Concord, California. Ms. Kwapnoski was encouraged to transfer permanently to the

13 Concord store. Both her abilities and her work ethic were praised.

14

64. In 1994, Ms. Kwapnoski transferred to the Sam’s Club in Concord, California. She

15 worked in auditing, freezer departments, claims, and in receiving. She repeatedly made it known to

16 the general managers at the Sam’s Club and to the District Operations Manager that she sought a

17 team leader position and an area manager position. These jobs were not posted to permit formal

18 applications. Instead, these positions, as they became open, were repeatedly given to men who

19 were less qualified than Ms. Kwapnoski. Ms. Kwapnoski was required to train several of these men

20 in order for them to assume the responsibilities of the position. Ms. Kwapnoski also observed men

21 receiving higher rates of pay and more frequent increases in their pay rates.

22

65. Ms. Kwapnoski was told by the store manager that she “needed to blow the cobwebs

23 off” her make-up and “doll up”. When Ms. Kwapnoski questioned why a male employee received

24 a large raise, she was told it was because he had a family to support.

25

66. Ms. Kwapnoski has requested upon more than one occasion the opportunity to join

26 the “Management-in-Training” program, but has been denied this opportunity. In 1999, she was

27 finally made a team leader, an hourly position. In June 2001, Ms. Kwapnoski was made a receiving

28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

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Case No. C-01-2252 MJJ

1 area coach/manager. Since that date, she has continued to request an opportunity to assume greater

2 managerial positions and receive managerial training, as well as attend management meetings.

3 These requests had been denied.

4

67. Ms. Kwapnoski filed a Charge of Discrimination with the EEOC on or about

5 February 15, 2002, a copy of which is attached hereto as exhibit 5 and incorporated by reference.

6 She received a right to sue notice in March 2002.

7 DEBORAH GUNTER

8

68. Deborah Gunter was hired in April 1996 as a Photo Lab Clerk in Wal-Mart Store

9 #2028 in Riverside, California. She had 30 years of prior retail experience.

10

69. While employed at Store #2028, Ms. Gunter applied several times for the position of

11 Pets Department Manager between the time she began her employment in 1996 and approximately

12 March 1998. Ms. Gunter was particularly interested in this position because of her extensive

13 experience breeding and raising show dogs. She never received the promotion, although the store

14 Night Manager recommended her for the position. The first time Ms. Gunter applied, a male

15 employee with less experience was given the position. The second time she applied, a male

16 employee with less experience was given the position.

17

70. In the fall of 1996, Ms. Gunter was transferred to the position of Night Stocker.

18 While employed as a Night Stocker, Ms. Gunter learned that the male employees in the Receiving

19 Department earned a higher wage than the female employees in the department.

20

71. In March 1998, Ms. Gunter transferred to a position as Service Clerk in the Tire Lube

21 Express Department of Store #1747 in Perris, California after the Perris Store Manager requested

22 that she transfer there.

23

72. While employed at the Perris store from March 1998 until March 1999, Ms. Gunter

24 performed the duties of Support Manager to the Tire Lube Express Department without the title or

25 salary for that position. On numerous occasions, she requested training from the Tire Lube Express

26 Manager and from the District Manager. She never received the training. The Tire Lube Express

27 Manager told her she did not have sufficient training to fill the position of Support Manager. She

28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

16
Case No. C-01-2252 MJJ

1 again requested additional training and was denied it. Ms. Gunter requested a promotion and pay

2 increase from the Tire Lube Express Manager, but did not receive the promotion.

3

73. Ms. Gunter trained two male employees in the job responsibilities of Support

4 Manager for the Tire Lube Express Department. After training each male employee, the male

5 employee was promoted to Support Manager. Beginning in the summer of 1998, Ms. Gunter was

6 subjected to sexually harassing remarks by the Tire Lube Express Manager. She complained to the

7 Store Manager in December 1998 and January 1999. However, corrective action was not taken and

8 Ms. Gunter’s complaints were ignored. Subsequently, her hours were reduced.

9

74. Ms. Gunter transferred to Store #2077 in Lake Elsinore, California in March 1999

10 with the belief that she would get more hours. At the Lake Elsinore store, Ms. Gunter was

11 employed as a Cashier/Clerk in the Tire Lube Express Department. As she had done in the Perris

12 store, she trained a male employee in the job responsibilities of Support Manager for the Tire Lube

13 Express Department. After she trained him, the male employee was promoted to Support Manager,

14 whereas Ms. Gunter’s hours were reduced yet again.

15

75. Ms. Gunter complained to the Tire Lube Express Manager after her hours were

16 reduced. She also requested a meeting with the District Manager to complain about the

17 discriminatory treatment. In August 1999, on the day that the meeting was scheduled, the Store

18 Manager informed her that she had been terminated and handed Gunter her remaining wages and

19 vacation pay.

20

76. On at least one occasion, Ms. Gunter called Wal-Mart headquarters to request

21 assistance with the difficulties she was having on the job. She never received a reply.

22 KAREN WILLIAMSON

23

77. Karen Williamson was hired by Wal-Mart in 1995 to work at the Wal-Mart store in

24 Pleasanton, California, where she remained employed until October 21, 1999. She was hired before

25 the store was opened, and her original job assignment was to help prepare the store for opening. As

26 a part of that assignment, Ms. Williamson was one of eight employees selected to review all

27 merchandise as it arrived, and one of four employees selected to do a computerized scan and

28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

17
Case No. C-01-2252 MJJ

1 inventory of the entire store. Accordingly, Ms. Williamson was one of the first of the hourly

2 employees at the Pleasanton store to be trained on the handheld computer used for such operations

3 and for departmental inventories, orders, and controls.

4

78. Upon the opening of the new store, Ms. Williamson was assigned to work in three

5 departments: Infants, Boys, and Girls. She was trained to operate the cash register.

6

79. At her initial evaluation, Ms. Williamson was told she would receive training and

7 become a department manager at some time in the future. During her employment at Wal-Mart, she

8 was interested in obtaining departmental and higher management positions.

9

80. Ms. Williamson was assigned to several departments over the course of her tenure at

10 Wal-Mart, including Electronics, Housewares and Small Appliances. She also worked in Health

11 and Beauty Aids, Cosmetics, Seasonal Products, Foods, Paper Goods, Pets, and Household

12 Chemicals, helping as needed. She occasionally worked on the cash register. The last department

13 to which she was assigned was Stationery, Books/Greeting Cards and Party Supplies [hereinafter

14 “Stationery”]. During the time in which Ms. Williamson was assigned to Stationery, there was

15 more than one extended period of time in which there was no department manager, and Ms.

16 Williamson was expected to and did perform all the tasks of the department manager.

17

81. Ms. Williamson made it known repeatedly throughout her employment at Wal-Mart

18 that she sought the position of department manager. She expressed this orally and in writing to the

19 Store Manager on several occasions. She applied through the Wal-Mart computerized procedure.

20 Despite these repeated requests for promotion, Ms. Williamson never received a promotion.

21

82. Ms. Williamson was qualified to be a department manager. She was often called

22 upon to train recently promoted department managers, and to help out wherever needed. She was 23 recognized on the Wal-Mart “Honor Roll”. She had good performance evaluations. Ms. Williamson 24 was never promoted and instead watched men with equal or lesser seniority and equal or lesser 25 qualifications receive promotions. Ms. Williamson did not have the opportunity to apply for some 26 of the promotions, which men received, because the positions were not posted.

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

18
Case No. C-01-2252 MJJ

1 EDITH ARANA

2

83. Edith Arana is an African-American woman who was hired by Wal-Mart Store #2401

3 in Duarte, California, on September 5, 1995. During her employment, she held the positions of

4 Personnel Manager, Closing Sales Associate, and Inventory Clerk. Prior to working at Wal-Mart,

5 Ms. Arana had nine years of retail experience.

6

84. In December 1997, Ms. Arana told the Store Manager that she wanted to apply for the

7 assistant manager-training program. He informed Ms. Arana that he would recommend her to the

8 District Manager for the training program. However, he did not give Ms. Arana’s name to the

9 District Manager. The Store Manager then said he would recommend Ms. Arana the next time the

10 District Manager asked for names for the training program. However, to her knowledge, he never

11 submitted her name.

12

85. In October 1999, Ms. Arana applied for the position of Paper Goods and Chemicals

13 Department Manager. Although Ms. Arana understood that Wal-Mart’s policy is to interview every

14 applicant, she was not interviewed. A male employee was selected to fill the position.

15

86. Ms. Arana applied a second time for the position of Paper Goods and Chemicals

16 Department Manager between January and August 2000. She was not interviewed, and a male

17 employee was selected to fill the position.

18

87. In approximately June 2000, Ms. Arana told the new Store Manager that she wanted

19 to be promoted and that she was interested in the assistant manager-training program. The Store

20 Manager gave only a vague response. On another occasion, the Store Manager told Ms. Arana that

21 he did not want women in the assistant manager-training program. Ms. Arana is not aware of any

22 woman recommended by that Store Manager for the assistant manager-training program.

23

88. During the months after Ms. Arana told the Store Manager that she wanted to apply

24 for the assistant manager-training program, she also informed various Assistant Store Managers of

25 her desire for a promotion Ms. Arana also complained to several Assistant Managers about the

26 Store Manager’s discriminatory treatment of her. Ms. Arana also wrote a letter to an Assistant

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

19
Case No. C-01-2252 MJJ

1 Manager expressing her desire to join the assistant manager-training program. That Assistant

2 Manager suggested to Ms. Arana that she write a letter directly to the District Manager.

3

89. In December 2000, Ms. Arana wrote a letter to the District Manager expressing her

4 interest in the assistant manager-training program. The District Manager replied via letter that Ms.

5 Arana’s letter would be forwarded to the new District Manager. Despite her repeated expressions

6 of interest in the assistant manager-training program, Ms. Arana was never considered for that

7 program.

8

90. In January 2001, Ms. Arana called Wal-Mart’s toll free number to complain about the

9 Store Manager’s discriminatory refusal to interview women who applied for department manager

10 positions in certain departments. Ms. Arana was informed that her complaint would be forwarded

11 to the Regional Manager. However, to Ms. Arana’s knowledge, no steps were taken in response to

12 her complaint.

13

91. After Ms. Arana complained about the Store Manager’s discriminatory treatment, she

14 was transferred in February 2001 to the less desirable position of inventory traveler. Ms. Arana

15 repeatedly told the Store Manager and two Assistant Managers that she did not want to be an

16 inventory traveler because it was not a desirable position.

17

92. On October 19, 2001, Ms. Arana was falsely accused of “stealing time” and

18 terminated in retaliation for her complaints regarding Wal-Mart’s discriminatory failure to promote

19 women.

20

93. During her six years of employment at Wal-Mart, Ms. Arana observed that few

21 women were promoted to management positions. Women were often put in traditionally “female”

22 departments, whereas men were placed in departments such as Paper Goods and Chemicals,

23 Garden, and Hardware that increased their advancement opportunities.

24

94. On or about December 11, 2001, Ms. Arana filed a charge of discrimination with the

25 Equal Employment Opportunity Commission and the DFEH, a copy of which is attached hereto as

26 Exhibit 6 and incorporated by reference. The DFEH issued a right to sue notice on these charges on

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

20
Case No. C-01-2252 MJJ

1 or about December 28, 2001. Ms. Arana has requested a right to sue notice from the EEOC on

2 these charges.

3
FIRST CLAIM FOR RELIEF
4
(Violation of Title VII)
5
95. Plaintiffs incorporate Paragraphs 1 through 94.
6
96. This claim is brought on behalf of all Plaintiffs and the class they represent.
7
97. On or about October 22, 1999, January 4, 2000 and April 3, 2000, class member and
8
former plaintiff Stephanie Odle filed charges of sex discrimination against Wal-Mart with the
9
United States Equal Employment Opportunity Commission, copies of which are attached hereto as
10
exhibits 7-9 and incorporated by reference. Ms. Odle thereafter received a right to sue notice and
11
commenced this action as a named plaintiff in a timely fashion. From the filing of her EEOC
12
complaints through the initiation of this action, the class-wide nature of Ms. Odle’s charges has
13
been communicated to defendant.
14
98. On or about November 13, 2000, class member and former plaintiff Kimberly Miller
15
filed a charge of discrimination with the EEOC, a copy of which is attached hereto as exhibit 10
16
and incorporated by reference. Ms. Miller thereafter received a right to sue notice and commenced
17
this action as a named plaintiff in a timely fashion. From the filing of her EEOC complaints through
18
the initiation of this action, the class-wide nature of Ms. Miller’s charges has been communicated to
19
defendant.
20
99. On or about March 15, 2001, class member and former plaintiff Sandra Stevenson
21
filed a charge of discrimination with the EEOC, a copy of which is attached hereto as exhibit 11
22
and incorporated by reference. Ms. Stevenson thereafter received a right to sue notice and
23
commenced this action as a named plaintiff in a timely fashion. From the filing of her EEOC
24
complaints through the initiation of this action, the class-wide nature of Ms. Stevenson’s charges
25 has been communicated to defendant.
26

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

21
Case No. C-01-2252 MJJ

1

100. On or about May 17. 2001 class member and former plaintiff Micki Earwood filed a

2 charge of discrimination with the EEOC, a copy of which is attached hereto as exhibit 12 and

3 incorporated by reference. Ms. Earwood thereafter received a right to sue notice and commenced

4 this action as a named plaintiff in a timely fashion. From the filing of her EEOC complaints through

5 the initiation of this action, the class-wide nature of Ms. Earwood’s charges has been communicated

6 to defendant.

7

101. The foregoing conduct violates Title VII of the Civil Rights Act of 1964, 42 U.S.C.

8 §§ 2000(e), et. seq.

9

102. Wal-Mart has maintained a system for making decisions about promotions,

10 assignments, transfers and compensation which is excessively subjective and which has had a

11 disparate impact on female employees. This system is not and cannot be justified by business

12 necessity, but even if it could be so justified, less discriminatory alternatives exist that could equally

13 serve any alleged necessity.

14

103. Wal-Mart has maintained a ‘willingness to relocate’ prerequisite for promotion to

15 management which has had a disparate impact on plaintiffs and the class they represent. This

16 requirement is not and cannot be justified by business necessity, but even if it could be so justified,

17 less discriminatory alternatives exist which could equally serve any alleged necessity.

18

104. Wal-Mart has intentionally discriminated against the class and maintained a system

19 for making decisions about promotions, transfers, assignments and compensation that is excessively

20 subjective and through which Wal-Mart discriminates against female employees by denying them

21 the same opportunities for job assignments, upward mobility and compensation afforded to similarly

22 situated male employees.

23

105. Defendant’s discriminatory practices described above have denied female employees

24 promotional opportunities, transfers, assignments and compensation to which they are entitled,

25 which has resulted in the loss of past and future wages and other job benefits.

26

106. Wal-Mart has systematically retaliated against women who have complained about

27 discrimination and unfair treatment.
28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

22
Case No. C-01-2252 MJJ

1

107. Defendant’s retaliatory practices have resulted in the loss of past and future wages

2 and other job benefits for class members.

3

108. Plaintiffs request relief as provided in the Prayer for Relief below.

4

SECOND CLAIM FOR RELIEF

5

(Violation of Title VII)

6

109. Paragraphs 1-108 are incorporated by reference. This claim is brought on behalf of

7 the named plaintiffs individually for their non-class claims.

8

110. Defendant discriminated against named plaintiffs on the basis of their gender by

9 demoting, terminating, and/or by retaliating against them and by subjecting them to a hostile work

10 environment.

11

111. Defendant’s discriminatory and retaliatory practices have resulted in the loss of past

12 and future wages and other job benefits, and have caused plaintiffs to suffer humiliation,

13 embarrassment and emotional distress.

14

112. Plaintiffs request relief as provided in the Prayer for Relief below.

15

THIRD CLAIM FOR RELIEF

16

(Violation of California Fair Employment and Housing Act -Race Discrimination)

17

113. Plaintiffs incorporate by reference Paragraphs 30-41 and 50-61.

18

114. This claim for relief is brought on behalf of Plaintiffs Dukes and Page only.

19

115. Defendant discriminated against plaintiff Dukes and Page on the basis of their race,

20 African American. The foregoing conduct violates the California Fair Employment and Housing

21 Act, Government Code §§ 12940, et. seq.

22

116. Defendant’s discriminatory and retaliatory practices have resulted in the loss of past

23 and future wages and other job benefits, and have caused plaintiffs to suffer humiliation,

24 embarrassment and emotional distress.

25

117. Plaintiffs Dukes and Page request relief as provided in the Prayer for Relief below.

26

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

23
Case No. C-01-2252 MJJ

1

RELIEF ALLEGATIONS

2

118. Plaintiffs and the class they represent have no plain, adequate or complete remedy at

3 law to redress the wrongs alleged herein, and the injunctive relief sought in this action is the only

4 means of securing complete and adequate relief. Plaintiffs and the class they represent are now

5 suffering and will continue to suffer irreparable injury from Defendant’s discriminatory acts and

6 omissions.

7

119. The actions on the part of Defendant have caused and continue to cause Plaintiffs and

8 all class members substantial losses in earnings, promotional opportunities and other employment

9 benefits, in an amount to be determined according to proof.

10

120. Defendant acted or failed to act as herein alleged with malice or reckless indifference

11 to the protected rights of Plaintiffs’ and class members. Plaintiffs and class members are thus entitled

12 to recover punitive damages in an amount to be determined according to proof.

13
PRAYER FOR RELIEF
14
WHEREFORE, Plaintiffs and the class pray for relief as follows:
15
1) Certification of the case as a class action on behalf of the proposed Plaintiff class and
16
designation of Plaintiffs as representatives of the class and their counsel of record as Class Counsel;
17
2) All damages which individual Plaintiffs and the class have sustained as a result of
18
Defendant’s conduct, including back pay, front pay, general and special damages for lost

19
compensation and job benefits that they would have received but for the discriminatory practices of
20
Defendant;

21
3) For Plaintiffs’ individual, non-class claims, all damages they have sustained as a

22
result of defendant’s conduct, including back pay, front pay, general and specific damages for lost

23
compensation and job benefits they would have received but for the discriminatory practices of

24
defendant, damages for emotional distress, and punitive damages, according to proof;

25

4) Exemplary and punitive damages in an amount commensurate with Defendant’s

26 ability to pay and to deter future conduct;

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

24
Case No. C-01-2252 MJJ

1

5) A preliminary and permanent injunction against Defendant and its directors, officers,

2 owners, agents, successors, employees and representatives, and any and all persons acting in concert

3 with them, from engaging in each of the unlawful practices, policies, customs and usages set forth

4 herein;

5

6) A declaratory judgment that the practices complained of in this first amended

6 complaint are unlawful and violate 42 U.S.C. § 2000(e), et. seq., Title VII of the Civil Rights Act of

7 1964;

8

7) An order restoring class members to their rightful positions at Wal-Mart;

9

8) An assignment of Plaintiffs and the class to those jobs they would now be occupying

10 but for Defendant’s discriminatory practices;

11

9) An adjustment of the wage rates and benefits for Plaintiffs and the class to that level

12 which Plaintiffs and the class would be enjoying but for Defendant’s discriminatory practices;

13

10) Costs incurred, including reasonable attorneys’ fees, to the extent allowable by law;

14

11) Pre-Judgment and Post-Judgment interest, as provided by law; and

15

12) Such other and further legal and equitable relief as this Court deems necessary, just

16 and proper.

17
Dated: September 12, 2002
18
19

Respectfully submitted, THE IMPACT FUND

20
By:

21

JOCELYN D. LARKIN

22

Attorneys for Plaintiffs

23

24

25

26

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

25
Case No. C-01-2252 MJJ

1

DEMAND FOR JURY TRIAL

2

Plaintiffs hereby demand a jury trial as provided by Rule 38(a) of the Federal Rules of Civil

3 Procedure.
4

5

By: __________________________________________

6

JOCELYN D. LARKIN

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 28 PLAINTIFFS’ THIRD AMENDED COMPLAINT

26
Case No. C-01-2252 MJJ

 
 1 BRAD SELIGMAN (SBN 083838) JOCELYN D. LARKIN (SBN 110817)
2 THE IMPACT FUND 125 University Avenue
3 Berkeley, CA 94710 Telephone: (510) 845-3473
4 Facsimile: (510) 845-3654

5

6 IRMA D. HERRERA (SBN 98658)
7 DEBRA A. SMITH (SBN 147863) EQUAL RIGHTS ADVOCATES
8 1663 Mission Street, Suite 550 San Francisco, CA 94103
9 Telephone: (415) 621-0672 Facsimile: (415) 621-6744

10 SHEILA Y. THOMAS (SBN 161403)

11

EQUAL RIGHTS ADVOCATES 5260 Proctor Avenue

12

Oakland, CA 94618 Telephone: (510) 339-3739

13 Facsimile: (510) 339-3723

STEVE STEMERMAN (SBN 067690) 14 ELIZABETH LAWRENCE (SBN1l1781)

DAVIS, COWELL & BOWE 15 100 Van Ness Avenue, 20th Floor

San Francisco, CA 94102 16 Telephone: (415) 565-4685

Facsimile: 17

(415) 565-4854

JOSEPH SELLERS CHRISTINE WEBBER CHARLES TOMPKINS JULIE GOLDSMITH COHEN, MILSTEIN, HAUSFELD & TOLL 1100 New York Avenue, West Tower - Suite 500 Washington, DC 20005-3964 Telephone: (202) 408-4600 Facsimile: (202) 408-4699
STEPHEN TINKLER MERIT BENNETT TINKLER & BENNETT 309 Johnson Street Santa Fe, NM 87501 Telephone: (505) Facsimile: (505)
DEBRA GARDNER PUBLIC JUSTICE CENTER 500 East Lexington Street Baltimore, MD 20212 Telephone: (410) 625-9409 Facsimile: (410) 625-9423
SHAUNA MARSHALL (SBN 90641) HASTINGS COLLEGE OF THE LAW 200 McAllister Street San Francisco, CA 94102 Telephone: (415) 565-4685 Facsimile: (415) 565-4854

18 Attorneys for Plaintiffs 19 20 21

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

22 BETTY DUKES, PATRICIA SURGESON,
23 EDITH ARANA, DEBORAH GUNTER, CHRISTINE KWAPNOSKI, CLEO PAGE,
24 KAREN WILLIAMSON, on behalf ofthemselves and all others similarly situated,

25

Plaintiffs,

26

v.

27 WAL-MART STORES, INC.

28

Defendant.

CASE NO. C-01-2252 MJJ
PLAINTIFFS' MOTION FOR CLASS CERTIFICATION AND MEMORANDUM OF POINTS AND AUTHORITIES
Date: July 25, 2003 Time: lOam Courtroom: 11

Plaintiffs' Motion For Class Certification

Case No. C-Ol-2252 MJJ

1 2 3 I. 4 II. S 6 7
8 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS
INTRODUCTION AND SUMMARY OF ARGUMENT ........................ 1
FACTS ................................................................ 4
A. Wal-Mart Has A Uniform Store and Management Structure with Centralized Control from the Bentonville Corporate Headquarters ..................... 4
B. Wal-Mart Has A Strong Corporate Culture and Has Been Permeated By Stereotypes ...................................................... 10
1. Wal-Mart Has An Unusually Strong Corporate Culture, Which Reinforces Consistency in Practices and Attitudes ........... 10
2. There Is Strong Evidence That Gender Stereotypes Permeate Wal-Mart and Wal-Mart Has Resisted Changes to Make the Company More Hospitable to Women ....................................... 12
C. Under Wal-Mart's Compensation System, Women Are Consistently Paid Less than Men ............................................... 16
D. Wal-Mart's Promotion Policies Rely on Excessive Subjectivity and Act To Exclude Women .................................................. 20
E. Wal-Mart's Workforce Data Reveals that Discretionary Compensation and Promotion Decisions Have Consistently Disadvantaged Female Employees ................................................ 25
1. Female Employees Are Consistently Paid Less Than Their Male Employees in the Same Position Even Though They Have Higher Average Performance Evaluation Scores, More Seniority and Lower Turnover Rates ............................................. 25
2. Female Employees in Wal-Mart Stores Are Far Less Likely to Be Promoted Than Their Male Counterparts and, When They Are Promoted, Women Take Longer Than Do Men .................... 28
3. The Representation of Women in Management at Wal-Mart is Far Lower Than That of Comparable Employers Operating in the Same Labor Markets ........................................ 30
F. Wal-Mart Senior Management Has Been Aware of the Adverse Effects of Its Personnel Policies on Female Employees for Many Years But Has Failed to Take Effective Steps to Redress These Problems ...................... 31
1. Wal-Mart Management Has Long Known ofthe Adverse Consequences onts Policies on Female Employees ................ 31
2. The Numerical Goals for Women in Management Are Arbitrarily Set and Lack Any Mechanism for Holding Managers Accountable .... 36

1 III.
2
3
4
5

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. ., 37
A. All Requirements of Rule 23(a) Are Met. .............................. 38
1. The Proposed Class is Sufficiently Numerous ..................... 38
2. The Claims of the Named Plaintiffs Are Typical of the Class They Seek to Represent ...................................... 38

6

3. There Are Questions of Law and Fact Common to the Class.......... 40

7

4. The Named Plaintiffs and Their Counsel Are Adequate

Representatives ............................................ 43

8 B. The Proposed Class Satisfies the Requirements of Rule 23(b)(2). . .......... 43

9

1. The Court Should Certify a Class for Liability, Injunctive and Equitable

10

Relief Under Rule 23(b)(2) ................................... 44

11

2. The Court Should Certify Plaintiffs' Claims for Punitive Damages Under

Rule 23(b)(2) With Notice and Right to Opt Out .................. 44

12

3. The Court Could Also Certify the Case Pursuant to Rule 23 (b)(3) ..... 47

13

C. Proposed Trial Plan ............................................... 47

14

CONCLUSION .............................................................. 49

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

1

TABLE OF AUTHORITIES

2

FEDERAL CASES

Page(s}

3 dams v. Pinole Point Steel Co.,

1994 WL 515347,65 FEP 774 (N.D. Cal. 1994) .............................. 39

4

llison v. Cilgo Petroleum Corp.,

5

151 F.3d402 (5thCir. 1998) ............................................. 44

6 Amchem Prods., Inc. v. Windsor,

521 U.S. 591, 117 S. Ct. 2231 (1997) ....................................... 44

7 rnold v. United Artists Theatre Circuit~ Inc.,

8

158 F.R.D. 439 (N.D. Cal. 1994) .......................................... 45

9 arefield v. Chevron USA., Inc.

No. C-86-2427 TEH, 1987 WL 65054 (N.D. Cal. 1987) ....................... 38

10

arefield v. Chevron USA., Inc.

11

48 F.E.P. Cases 907,910 1988 WL 188433 (N.D. Cal. 1988) ........... 44,45,46,48

12 eck v. The Boeing Co., 203 F.R.D. 459 (W.D. Wa. 2001), modified by slip op December 27,2001,

13

affirmed in part, vacated in part by unpublished decision, 2003

WL 683797,83 Empl. Prac. Dec. ~ 41,313 ................................ 45, 48

14

ouman v. Block,

15

940 F.2d 1211 (9th Cir. 1991) ............................................ 40

16 utler v. Home Depot, No. C-94-4335 SI, 1996 WL 421436 (N.D. Cal. Jan. 25,1996); ............... 45,46

17

utler v. Home Depot,

18

984 F. Supp. 1257 (N.D. Cal. 1997) ........................................ 10

19 Caridad v. Metro.-North Commuter R.R., 191 F.3d 283 (2nd Cir. 1999) ....................................... 37,38,41

20

Contreras v. City ofLos Angeles,

21

656 F.2d 1267 (9th Cir. 1981) ............................................ 27

22 Cooper Indus. v. Leatherman Tool Group, 532 U.S. 424 (2001) .................................................... 46

23

Dayv. NLO,

24

851 F. Supp. 869 (S.D. Ohio 1994) ........................................ 46

25 omingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) ............................................ 49

26

'EOC v. Dial Corp.,

27

Civ. Action No. 99-C-3356, slip op (N.D. Ill. Feb. 14,2003) ........... 45,46,48,49

28

ill

EEOC v. 0 & G Spring & Wire Forms Spec. Co., 38 F.3d 872 (7th Cir. 1994) .............................................. 49

2

Eisen v. Carlisle & Jacquelin,

3

417 U.S. 156 (1974) .................................................... 38

4 i ubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ............................................. 46

5

n re Exxon Valdez,

6

229 F.3d 790 (9th Cir. 2000) and 270 F.3d 1215 (9th Cir. 2001) .................. 46

7 Gen. Tel. Co. ofSouthwest v. Falcon, 457 U.S. 147 (1982) .................................................... 38

8

Gotthardt v. Nat 'I R.R. Passenger Corp.,

9

191 F.3d 1148 (9th Cir. 1999) ............................................ 44

10 anion v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ...................................... 39,40,43

11

arriss v. Pan American World Airways, Inc.,

12

74 F.R.D. 24 (N.D. Cal. 1977) ............................................ 43

13 azelwood School Dist. v. United States, 433 U.S. 299 (1977) .................................................... 27

14

Hilao v. Estate ofMarcos,

15

103 F.3d 767 (9th Cir. 1996) .......................................... 46,49

16 efferson v. Ingersoll Int 'I Inc., 195 F.3d 894 (7th Cir. 1999) ............................................. 46

17

ordan v. Los Angeles County,

18

669 F.2d 1311 (9th Cir. 1982) judgment vacated on other

grounds at 459 U.S. 810 (1982) ............................................ 38

19

Kolstad v. American Dental Ass 'n,

20

527 U.S. 526 (1991) ................................................. 45, 46

21 Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507 (9th Cir. 1978) ............................................. 43

22

olski v. Gleich,

23

318 F.3d 937 (9th Cir. 2003) .......................................... 45,46

24 oore v. Hughes Helicopters, Inc., 708 F.2d 745 (9th Cir. 1983) ............................................. 38

25

organ v. UPS,

26

169 F.R.D. 349 (E.D. Mo. 1996) .......................................... 41

27

28

IV

1 Pettway v. America Cast Iron Pipe Co.,

494F.2d211 (5thCir. 1974) ............................................. 49

2

iva v. Xerox Corp.,

3

70 F.R.D. 378 (N.D. Cal. 1975) ........................................... 38

4 Probe v. State Teachers' Ret. Sys.,

780 F.2d 776 (9th Cir. 1986) .......................................... 44,45

5

obinson v. Metro.-North Commuter R.R. Co.,

6

267 F.3d 147 (2d Cir. 2001) ........................................... 45,46

7 Rodriguez v. Carlson, 943 F. Supp. 1263 (ED. Wash. 1996) ....................................... 45

8

Salinas v. Roadway Express,

9

735 F.2d 1574 (5th Cir. 1984) ............................................ 44

10 Segar v. Smith,

738 F.2d 1249 (D.C. Cir. 1984) ........................................ 27,49

11

Shores v. Publix Super Mkts, Inc.,

12

No. 95-1162-CIV-T-25(E), 1996 U.S. Dist. LEXIS 3381

(M.D. Fla. March 12,1996) .............................................. 41

13

Staton v. Boeing,

14

313 F.3d 447 (9th Cir. 2002) .......................................... 39,41

15 Stender v. Lucky Stores, 803 F. Supp. 259 (N.D. Cal. 1992) ......................................... 10

16

Stender v. Lucky Stores, Inc.,

17

1990 U.S. Dist. LEXIS 19985 (N.D. Cal. June 8, 1990) ........................ 39

18 Stewart v. Gen. Motors Corp.,

542 F.2d 445 (7th Cir. 1976) ............................................. 49

19

Taylor v. Union Carbide Corp.,

20

93 F.R.D.1 (S.D. W. Va. 1980) ............................................ 39

21 Teamsters v. United States,

431 U.S. 324 (1977) .................................................... 40

22

Wagner v. The NutraSweet Co.,

23

170 F.R.D. 448 (N.D. Ill. 1997) ........................................... 41

24 Watson v. Fort Worth Bank ofTrust Co.,

487 U.S. 977 (1988) .................................................... 41

25

Wofford v. Safeway Stores, Inc.,

26

78 F.R.D. 460 (N.D. Cal. 1978) ..................................... 39,40,41

27

28

v

1

STATUTES

2 Fed. R. Civ. P. 23 ........................................................ passim

3 Title VII, 42 U.S.C. § 2000e-5 ............................................... 43,44

4

TREATISES

5 5 Herbert B. Newberg & Alba Conte, Newberg on Class Actions §3.10 (3d ed. 1992) ....... 40

6 7A Wright, Miller, & Kane, Federal Practice and Procedure: Civil 2d, § 1763 (1986) ...... 40

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

VI

NOTICE OF MOTION

2

Please take notice that, on July 25, 2003, at 10:00 a.m. before the Honorable Judge

3 Martin 1. Jenkins, United States District Court, Courtroom 11,450 Golden Gate Ave., San

4 Francisco, California, Plaintiffs will seek an order certifying this case as a class action under Fed.

5 R. Civ. Proc. Rule 23(b)(2). The plaintiffs will proceed upon this motion, the memorandum of

6 points and authorities, the accompanying declarations, and any further briefing and arguments of

7 counsel. 8

RELIEF SOUGHT

9

Plaintiffs request that this Court: 1) certify this case as a class action under Fed. R. Civ.

10 Pro. 23(b)(2); 2) appoint plaintiffs' counsel to serve as counsel to the class; and 3) authorize

11 notice to the class of the pending action and of their right to opt-out under Fed R. Civ. Proc. Rule

12 23(d)(2).

13 I.

INTRODUCTION AND SUMMARY OF ARGUMENT

14

Since at least 1997, female employees ofWal-Mm1 Stores have been paid less than

15 comparable male employees in every year and in every Wal-Mart region despite having, on

16 average, higher performance ratings and more seniority. Instead of improving, this pay disparity

17 has steadily widened over the last five years.

18

Female employees at Wal-Mart Stores also receive far fewer promotions to management

19 than do male employees, and those who are promoted must wait longer than their male

20 counterparts. Although the vast majority ofWal-Mart managers are drawn from the ranks of

21 hourly employees, and women comprise over two-thirds of those hourly ranks, women receive

22 only one-third of all promotions to management positions. This pattern of under-promotion has

23 been true since at least 1975 and occurs in every region in which Wal-Mart operates. Wal-Mart's

24 track record is entirely anomalous in the retail industry, where women typically hold over 50% of

25 management jobs. Indeed, Wal-Mart's own internal documents recognize that "we are far behind

26 the rest of the world."

27

It is not surprising that Wal-Mart's discriminatory promotion and pay policies and

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 1

practices have manifested themselves consistently throughout the company. Wal-Mart's

2 corporate headquarters in Bentonville, Arkansas monitors and controls perhaps to an extent

3 never before seen in corporate America the minute details of operations at its far-flung stores,

4 down to the temperature it sets for each store's heating and cooling system and the music played

5 in each store. The company's success is due in large pari to its ability to closely monitor

6 activities in the field and maintain strict compliance with its internal policies and practices. Wal-

7 Mart has a highly sophisticated infonnation technology system that allows the Bentonville Home

8 Office to monitor a wide range of each store's daily activities. Through dozens of daily reports

9 and regular store visits, Home Office ensures that all stores are on the company program. In

10 addition, Wal-Mart has carefully constructed and aggressively maintains a distinct, consistent

11 corporate culture throughout its operations. Every employee is educated daily on the culture, and

12 employees are rewarded for following the "Wal-Mart Way." The strong culture encourages

13 universal compliance with personnel policies and practices. As a result, store managers are

14 frequently moved across districts and regions without any loss in consistency of company

15 policies and practices.

16

Within Wal-Mart, the gateway from low-paying hourly jobs to the higher-paying

17 management positions is the management training program. An employee must complete the

18 management training program to become an Assistant Manager, the first rung on the

19 management ladder. Until three months ago, on the eve of the discovery cut-off, Wal-Mart

20 selected employees for the program entirely through a "tap on the shoulder" system. By design,

21 there was no system by which an employee could apply for, or even express an interest in, the

22 program. No written inforn1ation was available to hourly employees about the program. Instead,

23 district and regional managers applied their own sUbjective views about who would be

24 appropriate for management. And, in the majority of all cases, a man was selected for the

25 training program rather than a woman, even though women comprised almost 80% of all hourly

26 supervisors. This lop-sided result is not surprising, as it is well understood that such highly

27 arbitrary and subjective systems are particularly vulnerable to the influence of unconscious

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 2

stereotypes. There is strong evidence that negative gender stereotypes permeate Wal-Mart at all

2 levels.

3

Pay decisions for both hourly and management employees are similarly left to the

4 manager, to whom company guidelines provide broad discretion to compensate store employees

5 according to his particular sUbjective assessment. As with promotions, these compensation

6 decisions disproportionately favor men in every major job category.

7

Wal-Mart executives at the highest level have long been aware that women have been

8 disproportionately excluded from management positions and underpaid compared to men. Wal-

9 Mart management prides itself - and rightly so on quickly and effectively addressing

10 intractable problems when they adversely affect the company's bottom line. In sharp contrast, to

11 address the identified obstacles to equal opportunity for its female workers, Wal-Mart has

12 belatedly implemented a few half-hearted measures for which no one at any level of management

13 has been held accountable. Although Wal-Mart pays lip service to the idea of diversity, it is

14 singularly uninterested in why so few women are promoted or whether its pay practices

15 disadvantage its female employees.

16

The Named Plaintiffs in this action, like women in every region of the United States,

17 have been the victims of Wal-Mart's systemic discriminatory pay and promotion practices.!

18 They seek to certify a class of female employees in the Wal-Mart and Sam's Club retail stores in

19 the United States who have been or will be subject to Wal-Mali's pay and promotion policies and

20 practices in violation of Title VII. The case is appropriate for certi fication under Fed. R. Civ. P.

21 23(b)(2) because the class has been subj ect to a common set of practices for which they seek

22 injunctive relief, back pay and punitive damages.

23

In support of this motion, plaintiffs' experts have prepared detailed statistical, economic

24 and sociological studies. The statistical evidence of discrimination is of a consistency and

25

26
! Plaintiffs propose Plaintiffs Betty Dukes, Patricia Surgeson, Christine K wapnoski, 27 Deborah Gunter, Edith Arana, and Cleo Page as Class Representatives.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 3

1 strength rarely seen before in Title VII gender litigation. The statistical significance of gender

2 disparities in compensation and promotion at Wal-Mart is vastly greater than levels described by

3 the Supreme Court as establishing a prima facie case. The statistics show that these disparities,

4 and the inference of discrimination that they create, consistently pem1eate the company, across

5 job categories, geography and time. Plaintiffs also submit the declarations of over 110 CUlTent

6 and former female employees whose stories explain this case in human tenns that the numbers

7 cannot. The declarations document the struggles of each of these women to receive equal payor

8 a chance to advance into management, often in the face of openly-expressed gender bias. While

9 these women have worked in stores from Anchorage, Alaska, to Om10nd Beach, Florida, their

10 stories are remarkably and painfully similar. Together, this body of powerful evidence compels

11 the conclusion that these claims deserve class treatment.
12 n. FACTS

13

A. WaI-Mart Has A Uniform Store and Management Structure with

Centralized Control from the Bentonville Corporate Headquarters

14

Wal-Mart is the largest retailer in the world. Wal-Mart 10-K, 2003, Ex. 70 at 2.2 Wal-

15

Mart's corporate headquarters, known as Home Office, is located in Bentonville, Arkansas. !d.

16

In 2002, Wal-Mart had over 3400 stores in the United States. Id. Wal-Mart operates discount

17

stores selling general merchandise. Larger stores that include a complete line of groceries, in

18

addition to general merchandise, are known as Supercenters, and stores that sell items in bulk are

19

20

21

22 2 All references to exhibit numbers throughout the brief refer to Exhibits to the
23 Declaration of Christine Webber. For convenience, all references to deposition testimony in this brief are abbreviated as [Witness' Last Name] Dep. There is only one deposition cited for each
24 witness with the exception of Kevin Harper and Jeffrey Reeves, who were first deposed as
25 30(b)(6) witnesses on organizational structure for Wal-Mart Stores and Sam's Club, respectively, and deposed a second time in their individual capacities. The first is refeITed to as Harper I Dep.
26 (or Reeves I) and Harper II Dep. (or Reeves II). Plaintiffs use a similar system for declarations. Declaration of Betty Dukes is abbreviated as "Dukes Decl." Where there is more than one
27 witness or declarant with the same last name, a first initial is inserted (e.g. R. Harper Dep.).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICA TION Case No. C-Ol-2252 MJJ

PAGE 4

lmown as Sam's Clubs.3 Ex. 70 at 8-10.

2

The field operations are divided geographically into six Wal-Mart divisions and one

3 Sam's Club division, each headed by a Divisional or Senior Vice President. Harper I Dep. at

4 215:3-4, Ex. 1; Sam's Club Organizational Charts, Ex. 71 at WMHOI57785. Each division

5 contains approximately six regions. Harper I Dep. at 215: 18-216: 1, Ex. 1. There are a total of

6 41 regions: 35 Wal-Mart regions and six Sam's Club regions. Harper I Dep. at 176:5-7, Ex.l;

7 Reeves I Dep. at 76 :21-23, Ex.2. Each region is supervised by a Regional Vice President (RVP),

8 who is based in Bentonville and travels for three weeks out of each month to the region. Harper I

9 Dep. at 184: 1-1 0, Ex. 1. Because the regional management is based in Bentonville, Wal-Mart

10 has an unusually high concentration of executives and managers based in the Home Office.

11 Bendick Decl. at n.29. Regional management meets at least weekly with Bentonville-based

12 corporate and executive leadership to discuss developments in the individual stores. Martinez

13 Dep. at 164:13-18,165:2-3, Ex. 3.

14

Each region, in tum, contains approximately eleven districts; each district contains

15 approximately six to eight stores. Harper I Dep. at 141:20-21, Ex. 1; Butler Dep. at 39:14-18,

16 Ex. 4. Each district is run by a District Manager, who lives in the field. Harper I Dep. at 162: 12-

17 22, Ex. 1. At Sam's Club, district managers are called Directors of Operations, but the job

18 responsibilities are identical. Burner Dep. at 145: 17-24, Ex. 5. On personnel matters, District

19 Managers work in conjunction with Regional Personnel Managers (RPM). See RPM

20 Responsibilities Ex. 72 at WMHO 369676. The RPMs are based in Bentonville and are

21 responsible for recruiting and assist in selecting store management and monitoring personnel

22 policies. Harper I Dep. at 155:3-23,190:3-6, Ex. 1; Ludwig Dep. at 132:13-18, Ex. 6. RPMs

23 visit the stores on a weekly basis and submit reports to five People Directors in the Home Office.

24 Ludwig Dep. at 136:22-137:15, Ex. 6; Wigger Dep. at 68:12-69:22, Ex. 7.

25

26 3 There are also approximately fifty smaller stores which sell primarily groceries, called
27 Neighborhood Markets. Harper I Dep. at 19:1-5, (Ex. 1); Ex. 70 at 8.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGES

1

Each Wal-Mart store has the same job categories, job descriptions and management

2 hierarchy. HarperI Dep. at 32:14-40:12, 45:25-46:7,58:18-59:9, Ex. 1; Burner Dep. at 144:16-

3 145:12,148:24-149:13, Ex. 5; Reeves I Dep. at 72:1-16, Ex. 2; Winkler Dep. at 172:7-15, Ex.

4 73; Ruiz Dep. at 130:22-25-131:1-3, Ex. 8; Job Descriptions, Ex. 74. At the bottom of the

5 ladder, the primary entry level hourly positions are cashier, sales associate and stocker. Harper I

6 Dep. at 42:15-43:10, Ex. 1; Wal-Mart Store Matrix of Essential Job Functions, Ex. 75. The first

7 step up is hourly Department Manager. Weaver Dep. at 45:3-9, Ex. 9. Other hourly supervisor

8 positions include Customer Service Manager (CSM), known as Check-Out Supervisor (COS) at

9 Sam's Club. Eldridge Dep. at 40:7-12, Ex. 10. The highest level hourly manager at Wal-Mart is

10 Support Manager. Harper I Dep. at 108: 16-109: 10, Ex. 1; Butler Dep. at 128: 1-5, Ex. 4; see also

11 Wa1-Mart Corporate Policy: Support Managers, Ex. 76. 4

12

The next step up is to management trainee, a four-to-five month program which prepares

13 employees for positions as Assistant Managers. Harper II Dep. at 195:7-15, Ex. 11; Memo

14 regarding New Management Training Program, Ex. 77; Schaffner Dep. at 79:17-80:10, Ex. 12;

15 Kintzele Dep. at 44:6-11,56:20-57:1, Ex. 13. The first salaried management position is

16 Assistant Manager. Harper I Dep. at 35:24-36: 11, Ex. 1. Each store has several Assistant

17 Managers, varying with the size ofthe store. Id. The next level is Co-Manager, a position used

18 only in larger stores. !d. Harper I Dep. at 150:25-151: 19, Ex. 1. The top store position is Store

19 Manager, called General Manager in Sam's Clubs. Reeves I Dep. at 165:20-166:9, Ex. 2.

20

,r The stores contain 40-50 different departments. Drogin Decl. at 31, Table 14. Certain

21 departments are highly gender segregated. s In 2001, women made up over 95% of workers in the

22

23

4 The equivalent management positions at Sam's Club are Front End Manager and

Receiving Manager. They report to Assistant Managers and are salaried. Reeves I Dep. at 24 165:20-166:9, Ex. 2.

25

S See, e.g., S. Hall Decl. at ~ 2 (when she asked to transfer to Hardware, male Support

,r 26 Manager asked, "[yJou 're a girl, why do you want to be in Hardware?"); Collier Decl. at 9

(during manager meeting, male Store Manager was asked by female District Manager why he

27 always put women Assistant Managers over Softlines and he said it was "because that's what

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 6

1 Jewelry, Infant/Toddlers, Health and Beauty Aids, Hosiery and Ladies Sportswear. !d. In

2 contrast, the Hardware, Dairy, Meat, Produce and Tire Balancing Departments were between 6%

3 and 27% female. !d. See Bielby Decl. at ~ 22.

4

Women comprised 67% of all hourly workers and 78% of hourly Department Managers

5 in the stores in 2001. Drogin Decl. at ~r 18, Table 3;,r 23, Table 7. In contrast, women made up

6 only 35.7% of Assistant Managers, 23% of Co-Managers and 14.3% of Store Managers. Drogin

7 Decl. at,r 23, Table 7. Moreover, at the top, Wal-Mart is, and always has been, run

8 predominantly by men. The Wal-Mart Executive Committee, the top 14 or 15 executives at Wal-

9 Mart, was comprised entirely of men until December 2000. Swanson Dep. at 61:9-14; 62:24-

10 63:1, Ex. 14. Tom Coughlin, the Executive Vice President ofWal-Mart Corporation, is

11 responsible for all aspects ofWal-Mart and Sam's Club retail operations. Coughlin Dep. at 12:4-

12 12, Ex. 15. Coleman Peterson, the Executive Vice President for People (the company's tern1 for

13 "human resources"), has overall responsibility for personnel matters company-wide. Peterson

14 Dep. at 8:6-17, Ex. 16. All divisional vice presidents for Wal-Mart Stores' field operations are

15 men. Williams Dep. at 47:14-24, Ex. 17. Wal-Mart Stores and Sam's Clubs have 41 Regional

16 Vice Presidents, of whom only 5 are women. Drogin Decl. at ,r 21; Jim Haworth Dep. at 174: 16-

17 18, Ex. 18. At the district manager level, approximately 9.8% of the positions are held by

18 women. Drogin Decl. at ~ 25, Table 9. Table 7 from the Drogin Declaration vividly portrays the

19 steady disappearance of women as one ascends the corporate hierarchy:

20

21 women know."); McKerma Decl. at ~ 4 (despite having been a Sporting Goods associate, when
22 McKenna expressed an interest in becoming Sporting Goods department manager, male assistant manager told her, "[yJou don't want to work with guns."); Deno Dep. at 151 :22-153: 10,209: 1-
23 211: 14, Ex. 69 (when she expressed an interest in a meat cutter position, male meat manager told her that Wal-Mart does not hire women as meat cutters.); Page Decl. at ~ 10 (store manager gave
24 sporting goods department manager position to male; "needed a man in the job.") Christensen 25 Decl. at ~ 5 (District Manager told him female associate could not be promoted to the a.m.
assistant manager position because she was female) Jaso Decl. at,r 10 (denied position as
26 Electronics Department Manager because it was a man's job that carried a lot of responsibility
and required heavy lifting) Mott Decl. at '117 (told by male co-manager that she wouldn't want
27 to be Domestics Department Manager because lifting furniture was a "man's job").

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 7

1

PERCENTAGE OF WOMEN DECREASES

WITH EVERY STEP UP WAL-MART MANAGEMENT HIERARCHY

2

3

4

90.0

5
80.0

6 70.0
7

8

:a 60.0

9

.£1 50.0

~

10

5~ 40.0

11

~
30.0

12
20.0
13

10.0
14

15

0.0 Store Co- Asst. Mgmt Support Dept CSM

16

Mgr

Mgr Mgr Trainee Mgr

Mgr

17

Wal-Mart maintains a state-of-the-art infonnation teclmology system, which pennits the

18 Home Office to monitor the smallest details of daily operations in each of its retail stores. Fielek

19 Dep. at 8:10-13,13:21-24,14:10-22, Ex. 19; Annatone Dep. at 127:24-128:5,132:19-133:9, Ex.

20 20. Remarkably, the Home Office controls the temperature in each store and selects the music

21 that customers will hear. Goodwin Dep. at 271:3-272:17, Ex. 21; Guthrie Dep. at 15:16-19, Ex.

22 22 (temperature control); D. Carter Dep. at 243:6-21, Ex. 23. Bentonville controls the

23 temperature in each store's freezer. Guthrie Dep. at 15:10-15, Ex. 22; D. Carter Dep. at 243:22-

24 244:12, Ex. 23; Goodwin Dep. at 270:20-272:16, Ex. 21. Every store manager is connected at

25 all times to the Home Office through the Managers' Workbench, a real-time computer link.

26 Tang Dep. at 39:22-40:4, Ex. 24; R. Carter Dep. at 158: 16-159:3, Ex. 78; Heilman Dep. at 196:7-

27 20, Ex. 25; Mireles Dep. at 24:1-9, Ex. 26.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 8

1

Wal-Mart's Home Office establishes all personnel policies, including compensation and

2 promotion guidelines. Hass Dep. at 15:21-16:3, Ex. 27. Personnel policies are virtually the

3 same for Wal-Mart Discount Stores, Supercenters, and Sam's Clubs. Coughlin Dep. at 42:21-

4 43:5, Ex. 15; Carpenter Dep at 63:19-64:9, Ex. 28; Reeves II Dep. at 147:23-148:7, Ex. 33 (99%

5 of the policies are the same); Hottinger Dep. at 33:9-18,35:21-40:19,49:5-9, Ex. 29. The People

6 Division is then responsible for disseminating employment policies to the "field." Hass Dep. at

7 33:24-34:20, Ex. 27.

8

District managers are charged with ensuring that store operations are consistent with

9 "company program," also known as "management by exception." Harper I Dep. at 178: 18-

10 179:11, Ex. 1. The Home Office monitors each store's operations electronically and generates

11 reports for each district manager showing which stores are not meeting one of the many company

12 standards set and monitored by the Home Office. Harper II Dep. at 38:17-43:8, Ex. 11; Harper I

13 Dep. at 133:3-15,163:18-164:21, Ex. 1; Hass Dep. at 102:20-25,105:3-15, Ex. 27; Crawford

14 Dep. at 26:22-27:9, Ex. 30. District managers use these "exception" reports to identify the

15 problems on which to focus when they visit the stores. Harper I Dep. at 178: 18-179: 11, Ex. 1.

16 Notes from these store visits are forwarded to the RVPs. Butler Dep. at 106:16-21, 108:25-

17 109: 10, Ex. 4. District Managers also conduct qUaIierly STAR audits in each store to track

18 individual store compliance more formally. Wigger Dep. at 110:17-24, Ex. 7; 2001 Company

19 Accountability Goals, Ex. 79. The district exception reports and STAR audits are also

20 consolidated (or "rolled up") into region and division level exception reports and are reviewed by

21 management at those levels. Arnold Dep. at 134:20-135: 15, Ex. 31. There are a variety of

22 "exception" reports on store-related personnel matters, including pay. Arnold Dep. at 134:20-

23 135:15, Ex. 31; Crawford Dep. at 26:22-27:9, Ex. 30.

24

Accordingly, an elaborate organizational stmcture centered in Wal-Mart's Home Office,

25 coupled with common personnel policies and close monitoring for compliance, ensure that

26 common personnel policies and practices operate in its domestic stores.

27

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 9

1

B. Wal-Mart Has A Strong Corporate Culture and Has Been Permeated By

Stereotypes

2

1.

Wal-Mart Has An Unusually Strong Corporate Culture, Which Reinforces

3

Consistency in Practices and Attitudes

4

Wal-Mart has carefully constructed and actively fosters a strong and distinctive corporate

5 culture, which is centrally controlled. This strong corporate culture promotes and sustains 6 uniformity of operational and personnel practices. Bielby Decl. at '121. 6 "Wal-Mart Culture" is

7 the same throughout the company; it does not vary by division or by region. Muzingo Dep. at

8 159:25-160:17, Ex. 32; Swanson Dep. at 140:16-21, Ex. 14; Reeves I Dep. at 56:21-23; 103:17-

9 25; 156:10-17, Ex. 2. Many elements of the Wal-Mart Culture suchastheemphasison

10 "promotion from within" - bear directly on personnel practices within the stores. Muzingo Dep.

11 at 93:20-94:11, Ex. 32.

12

The culture, also known as the "Wal-Mart Way," is a company-wide value system. Wal-

13 Mart Culture Pocket Handbook, Ex. 80; Muzingo Dep. at 75:16-22, Ex. 32. Every new

14 employee goes through the same orientation process and, as part of that process, is trained about

15 the culture. Muzingo Dep. at 114:20-25, Ex. 32; Hass Dep. at 58:20-22; 62:19-21; 67:25-69:1,

16 Ex. 27; Goodwin Dep. at 126: 1-6, 127:5-7, Ex. 21. New employees watch a video about the

17 company history and are introduced to the company's philosophy ("The Three Basic Beliefs").

18 Muzingo Dep. at 115: 1-6, Ex. 32. The Associate Handbook, provided to all employees, also

19 describes the Wal-Mart Culture and persOlmel policies. Muzingo Dep. at 115: 10-16, Ex. 32;

20 Hass Dep. at 51:24 - 57:13, Ex. 27; Associate Handbook, Ex. 81; Van Allen Dep. at 74:7-20, Ex.

21 34; Reeves I Dep. at 103:8-12, Ex. 2; Hottinger Dep. at 66:2-7, Ex. 29.

22

Thereafter, employees receive weekly training on culture topics at mandatory store

23

24

6 Plaintiffs' expert sociologist, Dr. William Bielby, analyzed Wal-Mart's personnel

25 practices and culture to determine whether barriers exist for female employees and, if so, whether Wal-Mart's efforts to address these barriers have been adequate. Bielby Decl. at ~'16-1 O. Dr.

26 Bielby's work has been widely accepted by federal courts in numerous Title VII class action

cases. See e.g. Butler v. Home Depot, 984 F. Supp. 1257,1265 (N.D. Cal. 1997); Stender v. 27 Lucky Stores, 803 F. Supp. 259, 300-304 (N.D. Cal. 1992).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-01-22S2 MJJ

PAGE 10

1 meetings. Wal-Mart store managers are provided with a detailed schedule of corporate "culture"

2 lessons and accompanying training materials to present at these weekly meetings. Muzingo Dep.

3 at 125: 1-4, Ex. 32; "Culture Topics Index," Ex. 82. The same Computer-Based Learning

4 Modules are used in all stores, including required training on culture topics. Poland Dep. at

5 49:25-50: 10, 110:9-24, 113:4-114: 11, Ex. 35; Muzingo Dep. at 129:4-131: 14, Ex. 32. Wal-Mart

6 employs a wide variety of standardized communication tools which reinforce its culture,

7 including broadcasts ofWal-Mart TV from Home Office into all its stores; the broadcasts include

8 training on personnel and employment matters. Reeves I Dep. at 103: 13-14, Ex. 2; Hass Dep. at

9 88:9-89:6,92:8-13,93:6-94:10, Ex. 27; Hottinger Dep. at 78:6-79:7, Ex. 29; Muzingo Dep. at

10 130:11-131:14, Ex. 32 (company intranet).

11

Culture is also an integral part of all management training programs. Muzingo Dep. at

12 143:2-145:2, Ex. 32. It is presented at company-wide Year BegilIDing and Holiday Meetings as

13 well as at the mIDual Shareholder meeting. Muzingo Dep. at 147:6-22, Ex. 32. At the

14 Bentonville headquarters, all Wal-Mart and Sam's Club senior managers attend a Saturday

15 morning meeting which, once a month, is dedicated to presenting one of the company's culture

16 lessons. Muzingo Dep. at 135:14-136:8, Ex. 32. Those senior managers, who travel frequently

17 to the stores, are then expected to communicate those culture lessons to the field. Muzingo Dep.

18 at 141 :6-21, Ex. 32. Notes of the Culture Saturday meetings are put on the Pipeline and made

19 available to all store employees. Muzingo Dep. at 129:11-130:14,138:24-139:1, Ex. 32; Culture

20 & History, Ex. 83, "Saturday Meeting Notes," Ex. 84 . Culture training is considered a

21 "continual process" for even the most senior Wal-Mart executives. Swanson Dep. at 141 :13-15,

22 Ex. 14.

23

The corporate culture is further reinforced by a number of significant internal practices.

24 First, Wal-Mart evaluates managers on their understanding of the culture and rewards employees

25 who show a strong commitment to it. Management Performance Appraisal, Ex. 85; Muzingo

26 Dep. at 167:25-168:5, Ex. 32. Second, Wal-Mart has a strong policy favoring promotion from

27 within. Peterson Dep. at 72:2-6, Ex. 16; Associate Handbook, Ex. 81. Thus, before an employee

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 11

1 becomes part of the management team, he or she will have been thoroughly steeped in the Wal-

2 Mart Culture. Finally, the company regularly moves store level managers from one retail facility

3 to another, often from one state to another, and between Wal-Mart and Sam's Club division. 4 Ludwig Dep. at 71:17-72:15, Ex. 6; Drogin Dec!. at ~ 34, Table 16; '135, Table 17. This practice

5 ensures that the Wa1-Mart Culture is widely disseminated and that the dominant cultural

6 messages are the official culture, rather than any disparate local mores.

7

Not surprisingly, Wal-Mart has been recognized by social scientists and management

8 scholars as an organization with a strong corporate culture. Bielby Dec!. at ~ 18. Typical of such

9 organizations, the Wal-Mart Culture is based in large part on the personal history and beliefs of

10 the company's founder, Sam Walton. Muzingo Dep. at 103:6-14, Ex. 32. Walton's

11 autobiography, "Made in America," is required reading for Wal-Mart management trainees.

12 Management Training Program Week 1 Trainee Guide, Ex. 86.

13

Many of"Mr. Sam's" traditions remain firmly entrenched in the culture. Following a

14 visit to a Korean factory in the 1980s, Walton instituted a Wal-Mart cheer, which is now

15 performed by employees every morning in each of the 3000 Wal-Mart stores. Walton & Huey,

16 MADE IN AMERICA at 200-202, Ex. 87; Muzingo Dep. at 85:18-86:21, Ex. 32. A similar

17 cheer is heard at every Sam's Club store. Oshier Dep. at 106: 17-1 08:22, Ex. 37; Hottinger Dep.

18 at 85:14-22, Ex. 29. The cheer is also regularly done at Wal-Mart corporate meetings and events.

19 Muzingo Dep. at 86:23-87:3, Ex. 32.

20

2. There Is Strong Evidence That Gender Stereotypes Penneate Wal-Mart

and Wal-Mart Has Resisted Changes to Make the Company More

21

Hospitable to Women

22

Wal-Mart has held tightly to many traditions, including those which have made women

23 uncomfortable at Wal-Mart. Mr. Walton was a passionate quail hunter and, from the early days

24 ofthe company, invited a small group of his top managers for an annual quail hunt at his hunting

25 ranch in Texas. Schwindt Dep. at 57:14-61:10, Ex. 38; R. Harper Dep. at 116:10-24, Ex. 36.

26 When women finally reached the lower executive ranks of the company and a few were invited

27 to the event, many suggested that an activity other than hunting would allow more people to feel

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-2252 MJJ

PAGE 12

1 comfortable participating. Reza Dep. at 98: 17-25 ("I don't really like to kill animals, but I

2 went"), 99:22-100: 13 (female executives have suggested skiing or river rafting instead), Ex. 39;

3 Schwindt Dep. at 59:12-18, Ex. 38 (organizers are aware that "a lot of [women] don't like to

4 hunt"); R. Harper Dep. at 116:10-117:16, Ex. 36. Despite Wal-Mart's professed commitment to

5 diversity, the suggestion was soundly rejected as interfering with "tradition," and the annual

6 quail hunt remains today the corporate retreat for executives and senior management in the

7 company. Reeves II Dep. at 144:23-145:14, Ex. 33; Reza Dep. at 100:23-101:2, Ex. 39; R.

8 Harper Dep. at 116:21-24, Ex. 36.

9

Indeed, Wal-Mart's culture is so strong and conforming that new management hires often

10 encounter great difficulty becoming assimilated. Swanson Dep. at 26:5-10, Ex. 14; Reeves I

11 Dep. at 46: 1-21, 56: 15-20, Ex. 2 ("it takes about five years to be accepted in this organization.

12 The first year is tough for all external folks."); R. Harper Dep. at 120:14-18, 122: 14-123: 1, Ex.

13 36 (marketing executive considered himself an outsider for first eleven years with company).

14 One former female Vice President of Sam's Club Marketing, Rhonda Harper, an outside hire and

15 veteran of a number of large American corporations, described the Wal-Mart culture as a "velY

16 tight, deep culture" and "very closed." R. Harper Dep. at 121:9-15, Ex. 36. When asked about

17 her effOlis to assimilate into the Wal-Mart culture, Harper explained:

18

I didn't go hunting with them, I didn't go fishing with them, I wondered if! had been

able to do some of those things if! might have assimilated more quickly into the

19

organization.

20 R. Harper Dep. at 125:21-126:3, Ex. 36. Plainly, Wal-Mart's culture exerts an enormous

21 influence on the company's associates, treating as family the favored employees and treating as

22 foreigners the newcomers and the employees who fail to fit the Wal-Mart mold.

23

Other features ofWal-Mart's environment are even more inhospitable to women. For

24 example, at regular Monday executive level Sam's Club meetings, senior management often

25 referred to the female associates in the stores as "little Janie Qs" and "girls." R. Harper Dep. at

26 103:21-105:11; 135:13-136:14, Ex. 36. One female executive, new to the company, raised an

27 objection to the use of these demeaning tern1S to the Sam's Club President as well as to the

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 13

1 Executive Vice President. R. Harper 135:13-136:14, Ex.36. Her criticism was not well received 2 and there was no change in the regular use of the demeaning labe1. 7

3

Female managers have been required to go to Hooter's restaurants and strip clubs in the

4 course of business events. Howard Dec!. 'r~ 14, 17-19 (female store managers required to attend

5 lunch meetings at Hooter's; female store managers forced by district manager to go to strip clubs

6 while on business trip). Indeed, Executive Vice President for People Coleman Peterson defended

7 this conduct, testifying that it was appropriate for a Wal-Mart district meeting to be held at a

8 Hooter's restaurant, if it is considered to be the "restaurant du jour" and "one of the best places to

9 meet and eat. .." in the town. Peterson Dep. at 264:11-16, Ex. 16. Numerous male Wal-Mart

10 managers testified that they regularly go to strip clubs while attending the annual sales meetings.

11 Riggs Dep. at 196: 1-5, Ex. 40; 1. Brown Dep. at 185:8-12, Ex. 41; Seaman Dep. at 321: 1-3, Ex.

12 42; Shelman Dep. at 259:10-23, Ex. 43; Schaffner Dep. at 194:19-195:9, Ex. 12; Sims Dep. at
13 185:3 -14, Ex. 44. See also Horton Decl. at '1 5 (stripper perfom1ed at store meeting to celebrate

14 store manager's birthday). Further, at a company event in May 2001, Jim Haworth, Executive

15 Vice President of Operations and Chief Operating Officer for Wal-Mart Stores, sat on a chair that

16 looked like a leopard-skin stiletto high heel shoe, while surrounded by women singing and

17 dancing. Haworth Dep, at 215: 12-218: 9; R. Harper Dep. at 105: 12-106: 18. A photograph of the

18 event was later included in the employee newsletter. Haworth Dep. at 217:7-18, Ex. 126.

19

Wal-Mart had reinforced the stereotype that women are less assertive than men in training

20 sessions given to store managers at the Walton Institute. 8 Participants were told the reason that

21 so few women had reached senior management at Wal-Mart was because "men have been more

22 aggressive in achieving those levels of responsibility..." Walton Institute Diversity Questions,

23

24

7 Indeed, the female executive was criticized by her boss for her "attitude of superiority"

25 and was counseled "not to be judgmental." Swanson Dep. at 134:15-135:6, Ex. 14.

26

8 The Walton Institute is a Bentonville-based management training center. All salaried

management must attend unifonn management training at the Institute. Hass Dep. at 80:3-7, Ex.

27 27; Bosler Dep. at 40:2-23, Ex. 57.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 14

Ex. 89. In defending the half-hearted efforts undertaken by Wal-Mart in the past to address

2 under-representation of women, Divisional Vice President Larry Williams testified that Wal-

3 Mart did not do more because there was "no forcing the issue." In his view, this would lead to

4 promoting unqualified women. Williams Dep. at 108: 18-1 09: 13, Ex. 17. This same view that

5 additional efforts to promote women would lead to "lowering standards" and that better qualified

6 white males would be passed over has been echoed repeatedly by other managers at these

7 Walton Institute meetings. Ex. 89. Thus, from the senior executives down through store

8 managers, the view that promoting women requires "lowering standards" is a frequently

9 expressed belief at Wal-Mart.

10

Wal-Mart's own consultants and employee groups have highlighted for the company the

11 challenges to women that some ofWal-Mart's traditions and its managers' stereotypes have

12 erected. In 1998, Wal-Mart hired the consulting firm, Diversity Management Inc. (DMI), which

13 conducted surveys of attitudes among groups ofWal-Mart managers about diversity. In one

14 report of its results, it noted a wide range of "Diversity Challenges" which reflect the existence of

15 entrenched stereotyped beliefs:

16

Fact or perception that advancement is not sought by diverse associates: e.g. when

women are unwilling to seek advancement because they see how a female store manager

17

or DM is treated.

18

The glass ceiling is perceived by many women and people of color at the assistant

manager level. Many feel like they have to work harder than white men to advance. One

19

stated: "I knew I would never be promoted to store manager under my DM, because I was

a women and everyone knew he didn't think women could manage stores well. So I was

20

aggressive about finding other 0ppOliunities."

21

Some DMs [District Managers] who don't have any or very few female store managers

don't seem personally comfortable with women in leadership roles;

22 Diversity Management, Inc. Memo, Ex. 88 at WMHO 734095. Although DMI recommended a

23 detailed course of action to address those attitudes, Wal-Mart declined to proceed. Bilgischer

24

Dep. at 198:16-199:13, Ex. 45.

25 DMI's observations about stereotypical attitudes towards women should not have been

26 news to Wal-Mart. As early as 1992, a group of female Wal-Mart Home Office employees

27

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-2252 MJJ

PAGE 15

fonned the Women in Leadership Group, which identified a number of concerns for women

2 employees, some of which centered on the culture ofWal-Mart. Their concerns included:

3 "[sJtereotypes limit the opportunities offered to women," "[cJareer decisions are made for

4 associates based on gender," "aggressive women intimidate men," "men are interviewed as the

5 replacements, women are viewed as support," and "[mJen's infoffilal network overlooks 6 women." Memo re: Women in Leadership, Ex. 90.9 The Women in Leadership group was

7 inactive from 1996 until 2002, after this suit was filed. Bilgischer Dep. at 42:22-43:24, Ex. 45.

8

c. Under Wal-Mart's Compensation System, Women Are Consistently Paid

Less than Men

9

Pay for all Wal-Mart hourly employees is set at hire and adjusted after annual

10

perfonnance evaluations and in some cases for exceptional "merit." Shatz Dep. at 52:24-53:4,

11

66:6-19,68:25-69:5.82:7-13, Ex. 46; Crawford Dep. at 69:5-14, Ex. 30; Scantlin Dep. at 91:6-

12

22, Ex. 47; Raps Dep. at 244:7-16, Ex. 48; Harper II Dep. at 73:20-74:10, Ex. 1. Wal-Mart

13

establishes general compensation guidelines, but the guidelines permit, and even encourage,

14

15

16

9 Such stereotypes persist to this day. See, e.g., Durfey Dec!. at '110 (a female assistant

manager in Utah was told repeatedly by a store manager that retail is "tough" and not

17 "appropriate" for women); Scott Dec!. at 'I~ 8, 9, 12 (male store manager told Scott that "[mJen

are here to make a career and women aren't. Retail is for housewives who just need to earn extra 18 money"); Mathis Dec!. at ~ 12 (male store manager told female associate that women have to be

19 "bitches" to survive in Wal-Mart management); Kwapnoski Dec!. at ~ 16 (female receiving area manager told by store manager to "doll-up, " dress a little better and "blow the cobwebs off [herJ

20 make-up"); Lovejoy Dec!. at ~ 6 (male area manager told female associate that she could not get

promoted to the overnight supervisor position because she had children and because she would
21 be the only woman working overnight); Zumbrun Decl. at ~ 5 (during interview for rcs team

22 leader, male assistant manager asked her, "[bJeing a female, what makes you more qualified for this job than a male employee?" She was also told that the ICS staff was mostly male and that
23 they might have a problem with a female boss; male was hired); Donovan Dec!. at '16 (male

manager told her "you aren't part of the boy's club, and you should raise a family and stay in the 24 kitchen" instead of seeking advancement); Martin Decl. at ~ 13 (told by male co-manager, "you
25 need to grow some balls"); Rajas Dec!. at '1 5 (male district manager told her to resign as an
Assistant Manager and find a husband with whom she could settle down to relieve work-related

26 stress); Deno Dep. at 166:15-167:7,234:2-236:6, Ex. 69 (male manager said women only made

store manager to meet a quota, that women should be home barefoot and pregnant and women 27 weren't qualified to be managers because men had an extra rib).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-2252 MJJ

PAGE 16

1 managers to make idiosyncratic and sUbjective compensation decisions. Bielby Dec!. at ~ 40.

2

The Home Office annually sets the minimum hourly wage rate for each store, based upon

3 the local labor market. Heinle Dep. at 19:10-17, Ex. 49, Field Associate Compensation

4 Guidelines, 1997, Ex. 93 at WMH0151976; Crawford Dep. at 74:9-20, Ex. 30. Jobs are grouped

5 into "classes" by the Home Office; every department manager or cashier at any retail store in the

6 country will be assigned the same class. Ex. 93; Harper II Dep. at 16:7-18:1, Ex. 11; Arnold

7 Dep. at 57:8-58:5, Ex. 31; Crawford Dep. at 69:15-20, Ex. 30. Home Office also establishes, for

8 each class, a minimum wage rate that is progressively higher than the minimum rate for the store.

9 See, e.g., Ex. 93, FYE 2003 Field Non-Exempt Associate Pay Guidelines, Ex. 94; Crawford Dep.

10 at 72:14-21, 73:18-25, Ex. 30. For example, in 2002, all "Class 2" jobs had a minimum starting

11 rate of $0.25 above the minimum start rate for the store. See, e.g., Ex. 94; Shatz Dep. at 62: 12-

12 18,Ex.46.

13

Store Managers set the pay for each hourly employee. Arnold Dep. at 109: 12-11 0:5, Ex.

14 31; Shatz 52:16-53:4, 66:6-19, 68:25-69:5, Ex. 46; Hom Decl. at ~ 12. The guidelines authorize

15 Store Managers to adjust starting pay by as much as $2.00 per hour, although district managers

16 receive exception reports whenever pay is set at 6% or more above the minimum set by

17 guideline. Ex. 93, 94; Shatz Dep. at 66:20-23, Ex. 46. But Wal-Mart provides no guidance on

18 what circumstances would justify such an adjustment. Ex. 94 at WMHO 366905; Shatz Dep. at

19 66:6-11, 70:9-18, Ex. 46. Without proper criteria, inappropriate gender-based factors therefore

20 can, and do, affect pay decisions. 10 Bielby Decl.,! 37.

21

22

10 Tallent Decl. at '1 10 (during department manager meeting, male store manager said,

"[m Jen need to be paid more than women because they have families to support"); Young Dec!.

23 at'l 10 (during store meeting, male assistant manager responded to question from female

associate about why men made more than women by stating that men were working as heads of 24 their households while women were just working for the sake of working); Scott Decl. at ~ 8

25 (when single mother personnel manager asked why male associate was receiving a merit raise, male assistant manager told her it was because he "has a family to support"); Kwapnoski Dec!. at

26 ~ 12 (store manager told plaintiff that he gave male associate larger raise because he had "a

family to support"); McDonald Dec!. at ~ 7 (female associate told by male Department Manager 27 that male employees will always make more than females because "God made Adam first, so

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-22S2 MJJ

PAGE 17

The process for setting starting pay is similar for Assistant Managers and Co-Managers,

2 except that compensation decisions are made by District Managers (for AMs) or RVPs (for Co-

3 Managers), in consultation with RPMs. Memo re: Management Wages, Ex. 91 ("the Home

4 Office is the one who determines hiring, firing, wages, transfers and promotions for the

5 management associates with input from the District Manager"). The Exempt Associate Pay

6 Guidelines establish a broad salary range ($29,500 to $47,000) for Assistant Managers. Simpson

7 Dep. at 95:15-19, Ex. 50; Assistant Manager and Fresh Managers Perfornlance Matrix Salary

8 Structure, Ex. 92. District Managers are given almost no guidance as to where in the range an

9 Assistant Manager or Co-Manager should be paid, other than to consider store size. Simpson

10 Dep. at 92:8-17,104:19-25,105:7-106:14, Ex. 50, Ex. 92; FYE 2002 Field Exempt Associate

11 Pay Guidelines, Ex. 95 at WMHO 205239. See, e.g., T. Hall Dec!. at ~ 18; StumpfDecl. at,r 9.

12

Employees ordinarily receive pay increases after their first 90 days and annually

13 thereafter, based upon the employee's performance evaluation score. Shatz Dep. at 80:21-82:6,

14 102: 15-21, Ex. 46; Ex. 93, Ex. 94, Ex. 95; Blackburn Dep. at 45: 18-46: 10, Ex. 51; McNair Dep.

15 at 76: 11-17, Ex. 52. Wal-Mart's guidelines set a percentage range for the increase, tied to the 16 evaluation score, but endorse the exercise of management discretion in these decisions as well. 11

17 Harper I Dep. at 45: 17-21, Ex. 1; Scantlin Dep. at 91 :6-14, Ex. 47; Simpson 125:24-126:9, Ex.

18

19
women would always be second to men"); Odie Dec!. at ~~ 8, 10, 11 (when female assistant 20 manager requested raises for two female associates because they were making less than their

21

male counterparts, male general manager said, "[t]hose girls don't need any more money; they make enough as it is." She later asked why a male assistant manager was making over $10,000

22 more than she was, male director of operations told him it was because he "supports his wife and his two kids"); Brown Decl. at ~ 5 (when she asked department manager about why her pay was

23 lower than a less qualified male, manager said, "[y]ou don't have the right equipment. .. you

aren't male, so you can't expect to be paid the same."). 24

25

11 Performance increase decisions for hourly employees are made by Store Managers.

Shatz Dep. at 103:4-104:13-16, Ex. 46; Blackburn Dep. at 68:10-69:12,82:19-83:5, Ex. 51.

26 Perfomlance increases for Assistant and Co-Managers are made by District Managers in

consultation with Store Managers. Arnold Dep. at 203:6-9, Ex. 31; McNair Dep. at 118:2327 123:1, Ex. 52.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-22S2 MJJ

PAGE 18

1 50. For example, if an Assistant Manager receives an "outstanding" performance evaluation, the

2 guidelines call for a salary increase of between five and seven percent. Simpson Dep. at 126:5-9,

3 Ex. 50. As with the start rate, a manager may exceed Home Office guidelines in setting the

4 amount of an individual performance increase. Shatz Dep. at 81:22-82: 1, Ex. 46.

5

Finally, managers are permitted to award merit increases for "exceptional perfom1ance."

6 Shatz Dep. at 82: 11-13, Ex. 46. All employees, through Co-Managers, are eligible for merit

7 increases. Simpson Dep. at 85:24-87:15,110:3-14, Ex. 50; Arnold Dep. at 212:13-214:8, Ex. 31;

8 Crawford Dep. at 86:4-8, 141 :7-11, Ex. 30; McNair Dep. at 31 :6-14,79:9-15,80:24-81:2, Ex.

9 52; Ex. 93; Ex. 94; Ex. 95. Wal-Mart has declined to provide criteria for identifying

10 "exceptional performance." Arnold Dep. at 149:11-150:10, Ex. 31; Shatz Dep. at 86:24-87:12,

11 Ex. 46. Instead, Wal-Mart has chosen to pennit managers to decide for themselves what is

12 "exceptional." Id. The guidelines provide a suggested range of 5% to 6% and only allow one

13 merit increase each year. Ex. 92; Shatz Dep. at 87:13-88:17, Ex. 46; Blackburn Dep. at 76:15-19

14 (once a year), Ex. 51. Yet managers have discretion on how much, within the range, to award for

15 a merit increase, and may even award more than one per year. See e.g., McNair Dep. at 91: 17-

16 20, Ex. 52; Schatz Dep. at 106:4-15, Ex. 46.

17

In sum, Wal-Mart deliberately grants its managers broad discretion at critical junctures in

18 making compensation decisions for employees in the field. While Wal-Mart's policies provide

19 managers with broad discretion, (Shatz Dep. at 53 :20-54: 1, Ex. 46) store managers have

20 exceeded even these generous bounds. Such decisions to exceed corporate compensation

21 guidelines appear on the Payroll Exception report, thus alerting district managers. Blackbum

22 Dep. at 110: 1-2, Ex. 51; Shatz Dep. at 66:6-72:2; 20: 15-25, Ex. 46. Wal-Mart is, therefore,

23 aware of how its Store Managers are using their discretion, but it has done nothing to rein them

24 in or ensure this discretion is exercised fairly. 12

25

26

12 Proposed class representatives have experienced pay discrimination. Named Plaintiff

Cleo Page, who worked in the Union City and Livermore, Califomia stores after transferring

27 from Tulsa, Oklahoma, was paid a lower hourly rate than a male associate who held a similar

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 19

1

Finally, the major part of store manager's compensation is tied to store profitability.

2 Amold Dep. at 204: 18-205:5, Ex. 31; Crawford Dep. at 140:20-141 :6, Ex. 30. Performance

3 evaluations are not a factor, nor is a manager's ability to execute policies fairly. Crawford Dep.

4 at 137:6-11, Ex. 30; Simpson Dep. at 117:7-16, Ex. 50. Because some stores are more profitable

5 than others (e.g. better location, fewer nearby competitors), store assignment is a critical

6 component in determining store manager salary. See Ex. 95 at WMHO 205238. Not

7 surprisingly, female class members have complained of being assigned to smaller or "problem" 8 stores that generate lower profits. See Servatius Dec!. aqj~ 2,13-16,21; M. Howard aqj'IIO-13; 9 T. Hall Dec!. at ~~ 27-28; N. Martin Dec!. at '111; Stumpf Dec!. at ~'117, 28. Their complaints

10 are reflected in the statistical results, which reveal that female store managers are paid less than

11 their male counterparts, as described more fully below.

12

D. Wal-Mart's Promotion Policies Rely on Excessive Subjectivity and Act To

Exclude Women

13 All Wal-Mart stores use the same policies for making promotions to all in-store positions.

14 For promotions above department manager,13 Wal-Mart has a very SUbjective process that has

15

16

17

18 position although he had worked at Wal-Mart for a shorter time and had less supervisory 19 experience. Page Decl. at ~ 11. Similarly, Named Plaintiff Patricia Surgeson, who worked in the
Vacaville, CA store from 1997-2001, transferred from department manager of Lay-Away to the 20 Cash Office in the hope of being promoted to management, and the male employee who replaced
her in Lay-Away was paid more than she had been paid for doing the same job. Surgeson Dec!. 21 at 'j~ 8, 9. PlaintiffBetty Dukes has worked at the Wa1-Mart store in Pittsburg, Califomia since
22 1994. She has been paid significantly less than male employees with less seniority perfom1ing similar work. Dukes Decl. at ~ 19.
23 13 At the very lowest level, promotion from hourly associate to hourly department
24 manager, Wal-Mart has a policy that requires stores to post all such openings. Job
Announcements Company Policy, Ex. 96. For the most part, in these lower-paying positions 25 ($20,000-$25,000 range), women have been able to express their interest through posting and
26 obtain these promotions. Wal-Mart's workforce data do not show any significant disparities in promotion to hourly department manager positions as a whole and, therefore, the plaintiffs do not
27 seek class certification of this particular claim.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 20

1 systematically disadvantaged women. 14

2

Promotion to Hourly Support lvfanager Support manager, the highest level hourly

3 position, serves as an important feeder job for the Management Training Program. Harper I Dep.

4 at 108:16-109:10, Ex. 1. See also Wal-Mart Corporate Policy: Support Managers, Ex. 76 and

5 Drogin Decl. at ~ 53. While the company job posting policy includes support manager among the

6 hourly positions that should be posted, Wal-Mart's internal data shows that most openings to

7 support manager (80%) were not, in fact, posted. Job Atmouncements Policy, Ex.96; Drogin

8 Decl. at ~ 44. Wal-Mart also allows store managers to apply their own unwritten criteria when

9 selecting candidates. IS Store Manager, Art Mireles, for example, testified that he relied on

10 factors such as teamwork, ethics, integrity and the ability to get along with others. Mireles Dep.

11 at 180:20-181 :4, Ex. 26. Such unwritten, SUbjective criteria are particularly vulnerable to the

12 influence of stereotypes. Bielby Dec!. at,r 39. Wal-Mart's workforce data, discussed more fully

13 below, reveal that women associates have indeed received far fewer of these promotions to

14 support manager than would be expected in a non-discriminatory system. 16

15

Corporate Guidelines for Promotions into In-Store Management Positions - Wal-Mart

16 has company-wide promotion guidelines, which set forth the minimum requirements for

17

18

14 There are no minimum education or prior experience requirements for any hourly or

field management position, with the exception of store phannacists, who must have a degree and

19 a state license. Wal-Mali's Supplemental Response to InterrogatolY No. 22, Ex. 97.

Historically, Wal-Mart preferred managers who did not have a college degree. Walton & Huey, 20 MADE IN AMERICA at 216-218, Ex. 87.

21 15 In some cases, these criteria have clearly reflected gender bias. See, e.g., Houchins-
22 Post Dec!. at ,r 5 (male Co-Manager said he would not hire a "squatter" or "someone who squats to pee" for the Support Manager position.).
23
16 For example, Named Plaintiff Edith Arana had more than ten years' retail experience 24 when she began her employment with Wal-Mart in Duarte, California where she worked from
25 1995 to 2001. She applied for, but was denied, a support manager posi tion in August 1998 and again in October 2000. Arana Dec!. at ~~ 19,31. Plaintiff Page was also denied a support
26 manager position offered to a less qualified male associate. Page Decl. at ,r 7. Plaintiff Dukes, was unable to apply for many support manager positions which were not posted, and were filled
27 by men. Dukes Dec!. at ~~ 14, 15.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 21

1 advancement into salaried positions within the retail stores. Promotional Guidelines, Ex. 98.

2 Individual regions or divisions are not allowed to have written management promotion

3 guidelines different from the company requirements. Harper II Dep. at 218:13-219:25, Ex. 11

4 (Divisional Vice President developed division specific promotion standards; upon learning of

5 them, the Home Office rescinded them). The basic requirements are that candidates have an

6 "above standard" evaluation, at least one year in their current position, be current on training, not

7 be in a "high shrink:" department or store, and be on the Company's Rising Star list. 17

8 Promotional Guidelines, Ex. 98. The promotion guidelines also require that management

9 candidates be willing to relocate, a requirement discussed further below. ld.

10

Promotion to Assistant Manager Trainee - The Management Training program is the

11 primary way hourly employees can enter salaried management. Kintzele Dep. at 44:6-18, Ex.

12 13. Any hourly employee, regardless ofjob position, is eligible for assistant manager training.

13 Weaver Dep. at 102:4-17, Ex. 9; Monfils Dep. at 161:22-162:7, Ex. 53; Ludwig Dep. at 151:6-

14 152:5, Ex. 6. Until January 2003, Wal-Mari did not post openings for the training program

15 (Harper II Dep. at 180:23-181: 10, Ex. 11) nor did it have any system available for employees to

16 express an interest in the program. Kintzele Dep. at 42:3-8, Ex. 13. Wal-Mart did not provide

17 any written infonnation to employees about what the management training program is or how to

18 apply. Harper II Dep. at 204: 19-22, Ex. 11; June 27, 2002 Email from Jarrells-Porter re: Urgent 19 Project, Ex. 100. 18

20

21

17 The Rising Star designation is a company-wide program to identify employees who are

viewed as "potential leaders of tomorrow." To be designated a Rising Star, an employee had to

22 be recommended by his/her supervisor based largely on subjective criteria. The names of "Rising Stars" were, until recently, posted on the "Rising Star Wall" in the "Winners Win" room

23 in the Bentonville Home Office. Training Resources: Rising Star, Ex. 99 at WMHO 217266.

These pre-selected "Stars" were given priority for promotion. 24

25

18 Earlier this year, Wal-Mart implemented a one-time-only opportunity to express an

interest in the management training program. Employees were given only one week in which to

26 express general interest; no specific positions in specific stores or districts were identified. The

program materials stressed the negative aspects of the trainee position, but none of its potential 27 upside. Bielby Dep. at 169:13-172:5, Ex. 56. When plaintiffs sought discovery of the documents

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 22

District managers, subject to the approval of Home Office-based Regional Vice

2 Presidents, select management trainees through a "tap on the shoulder." Kintzele Dep. at 86:20-

3 23, Ex. 13 (store managers nominate candidates); M. Miller Dep. at 65:2-13, Ex. 54; Martinez

4 Dep. at 147:16-148:6, Ex. 3; Butler Dep. at 134:25-135:11, Ex. 4; Schaffner Dep. at 103:22-

5 104:10, Ex. 12; Email from Jarrells-Porter re: Urgent Project (referenced in paragraph above),

6 Ex. 100; Harper II Dep. at 206:12-16, Ex. 11; Wesbescher Dep. at 204:7-21, Ex. 55. Since the

7 promotion guidelines only set forth the minimum requirements for advancement, district

8 managers inevitably apply unwritten criteria to decide which of the hundreds of employees under 9 their supervision they will select for management training. 19 Kintzele Dep at 79:21-80:20, 106: 1-

10 9, 110: 11-111 :8, Ex. 13; Heilman Dep. at 108: 13-20. Ex. 25; M. Miller Dep. at 65 :2-13, Ex.54

11 (Sam's Club management trainees selected if general or assistant manager sees potential);

12 Guthrie Dep. at 77:11-22,80:3-18,82:11-83:3, Ex. 22 (criteria for promotion to TLE

13 management trainee are subjective); Goodwin Dep. at 183:15-23 (common sense relied on to

14 decide which employees were promotable), 236: 10-14, Ex. 21. They are not required to review

15 recent perforn1ance appraisals. Kintzele Dep. at 90: 13-2, Ex. 13. There is no oversight or other

16 monitoring of these unwritten criteria. See Bielby Decl. at ~ 39; Schwindt Dep. at 134: 15-18;

17 195:13-196:4 Ex. 38; Kintzele Dep. at 46:8- 47:4, Ex. 13. Thus, it is not surprising that women

18 have been discriminated against with respect to advancement into the Management Training

19

20 explaining the development of the new "program," Wal-Mart claimed attorney-client privilege. 21 Seligman Dec. at '114.

22

19 There is evidence that these criteria reflect explicit gender bias. See, e.g., Crawford

Decl. at ~ 5 (when she asked male district manager why a male had gotten an assistant manager

23 position over her, he told her that it was because the male was "head of his household" and that

as a married woman, she did not "need" the position); Rojas Decl. at '1'12, 5 (upon meeting the 24 male store manager in store where she was to complete management training, he said, "I don't

25 like college graduates," (which she was) and "I don't like female managers"); T. Hall Decl. at 'l~ 5, 16 (male store manager told a male assistant manager that all women should be "at home with

26 a bun in the oven" and "barefoot and pregnant." Male assistant manager told room of associates

that the only reason that Wal-Mart needed female assistant managers was to ensure that women 27 associates had someone with whom they could discuss their periods).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-2252 MlT

PAGE 23

Program. 20

2

Promotion to Assistant Manager and Co-Manager In 1998, Wal-Mart implemented a

3 computerized Management Career Selection (MCS) system, which would make it possible to

4 post all management openings in the retail stores. Mitchell Dep. at 204:10-25, Ex. 58; Emails

5 Regarding MCS, Ex. 101. Wal-Mart has, however, deliberately chosen not to post Assistant

6 Manager or Co-Manager openings as a matter of policy. Harper II Dep. at 160:3-9, 161 :3-5, Ex.

7 11; Kintzele Dep. at 41:17-42:2, 42:19-21,129:15-18, Ex. 13). See also MCS RPM Training,

8 Ex. 102 at WMHO 378025; Spragg Dep. at 256:11-2; 258:19-20, Ex. 68. Wal-Mart decided not

9 to post these jobs, even though Wal-Mart's executives concede that job posting would allow the

10 company to identify and attract talented candidates and would assist with diversity. Peterson

11 Dep. at 162:15-23,166:24-167:3, Ex. 16; Coughlin Dep. at 95:22-96:21, Ex. 15. As with

12 management trainee openings, district managers, in conjunction with store managers and RPMs,

13 use their own subjective assessment to select the "best" candidate for Assistant Manager and Co-

14 Manager vacancies, subject only to the minimum corporate guidelines explained above. Kintzele

15 Dep. at 129:25-130:22,131:17-135:16,144:23-145:5, Ex. 13.

16

Promotion to Store Manager - Wal-Mart does post openings for most store manager

17 positions on MCS. Kintzele Dep. at 152:9-22, Ex. 13; Lippert Dep. at 182:8-11, Ex. 59 (less

18

19

20 Plaintiff Page repeatedly expressed interest in the assistant manager trainee program,

for which she was fully qualified, but was never promoted. Page Decl. at -,r 9. Plaintiff Christine

20 Kwapnoski has worked at Sam's Club since 1986 and at the Sam's Club in Concord, California

since 1994. Kwapnoski Dec!. at 'I-,r 1, 4. Although her outstanding performance was recognized 21 with several merit raises and excellent evaluations, Ms. Kwapnoski was repeatedly denied

22 promotion into a managerial position. Finally, two weeks after this lawsuit was filed, and with fifteen years experience at Sam's Club, Ms. Kwapnoski was promoted to an area manager

23 position, the lowest level salaried job at Sam's Club. In March 2003, Ms. Kwapnoski began the
Management Training Program to become an assistant manager. !d. at '1 21. Plaintiff Surgeson
24 asked an assistant manager how she could join the Management Training Program, as she saw no

25 information about the program at the store. Ms. Surgeson received no information or encouragement about receiving management training. Surgeson Decl. at -,r 10. See also

26 Connaker DecI. at '1'18-9; Crom Dec!. at '1'1 6-9; Dobbs Dec!. at -,r'145-46; Earwood Dec!. at ~'[ 9-

11; T. Hall DecI. at 'I-,r 7-8; K. Johnson DecI. 'I-,r 10-16; Lehman Decl. at '1'16, 12, 14; Scott DecI. 27 at -,r-,r 10-17.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 24

than 30% of club manager openings at Sam's Clubs not posted on Sam's Club posting system). 2 However, it is not an open posting system. 21 Candidates are first required to obtain permission

3 from their district manager before they are allowed to post. Kintzele Dep at 157: 19-158: 15, Ex.

4 13. District managers may withhold permission for any reason. !d. See Stumpf Dec!. at ~ 20;

5 Martin Decl. at ~ 11. For those candidates who are given permission to post, they must take and

6 pass an on-line assessment. Kintzele Dep. at 155: 1-156: 19, Ex. 13. Regional Vice Presidents,

7 with input from District Managers and RPMs, select the candidate based upon whatever

8 sUbjective criteria they choose to apply beyond the corporate minimum guidelines. 22 Kintzele

9 Dep. at 165:22-167:1,168:19-169:16, Ex. 13; Spragg 223:6-224:19, Ex. 68; Grimm Dep. at

10 177:13-178:19, Ex. 60.

11

E. Wal-Mart's Workforce Data Reveals that Discretionary Compensation and

Promotion Decisions Have Consistently Disadvantaged Female Employees

12

1. Female Employees Are Consistently Paid Less Than Their Male

13

Employees in the Same Position Even Though They Have Higher

Average Performance Evaluation Scores, More Seniority and Lower

14

Turnover Rates

15

Dr. Richard Drogin, a statistician, analyzed Wal-Mart payroll and personnel data. He

16 found that women at Wal-Mart earn less than men holding the same job, for nearly all jobs, in

17 every year since 1996. Among hourly workers, women earned about $1100 less than did men in

18 2001. For management employees, the gender pay gap was $14,500. Drogin Decl. at ~ 20. The

19 average total eamings for men and women in field management jobs and the three largest hourly

20 21 Sam's Club only notifies current general managers of the general manager vacancies,
21 and general managers must nominate assistant managers for promotion to store manager/general 22 manager positions. Eldridge Dep. at 222:8-23, 258:8-18, Ex. 10.

23

22 These criteria may include gender stereotypes. See, e.g., Howard Dec!. at ~ 23 ( male

district manager told a female store manager in Indiana that a single mother should not run a 24 store and that she should instead be at home with her child). Moreover, several declarants

25 explain how they applied over and over for different Store Manager positions on the MCS system. Often they heard nothing about who was given the position. Just as often, they learned

26 that the positions had gone to men. See Kellems Dec!. at ~ 26 (posted for eighteen positions);

Stumpf Dec!. at 'r~ 19-30 (numerous unsuccessful store manager postings); Hittle Dec!. at,r 9 27 (posted for ten positions); McCarthy Dec!. at,r 15 (posted for sixteen positions).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-2252 MJJ

PAGE 25

1 jobs in 2001 were:

2

Average Earnings by Gender for 2001

3

Job

Men

Women Difference

4

Regional Vice Pres. $419,435 $279,772 $139,663

5

District Manager

$239,519 $177,149 $62,370

6

Store Manager

$105,682 $89,280

$16,402

Co-Manager

$59,535

$56,317

$3,218

7

Asst. Manager

$39,790

$37,322

$2,468

8

Mgmt. Trainee

$23,175

$22,371

$804

9

Dept Head

$23,518

$21,709

$1,809

10

Sales Associate

$16,526

$15,067

$1,459

11

Cashier

$14,525

$13,831

$694

12 Drogin Decl. at,r 25, Table 9; ~ 26, Table 10. These pay differences were found consistently
13 across regions. Drogin Decl. at ~ 76. The differences in pay between men and women could not
14 be explained by seniority or turnover. Drogin Decl. at ~ 28, Table 12. Women have longer
15 average tenure (4.47 years) than do men (3.13 years) and lower tumover. !d. The differences
16 could not be explained by peljormance. Women in hourly positions on average have higher
17 perfonnance ratings (3.91) than do men (3.84).23 Drogin Decl. at,r 30, Table 13. The disparity
18 in pay between comparably-employed women and men has increased every year since 1997.
19 Drogin Decl. at ~ 67.
20 Dr. Drogin also looked at the pay gap, over a five-year time period, for men and women
21 hired in the same year into the same position. For employees hired into hourly positions in 1996,
22
the average pay for men was $0.35 per hour more than for women. For those 1996 hires who 23
stayed at Wal-Mart through 2001, the gap in pay for men and women increased to $1.16 per hour 24
on average. In other words, with each additional compensation decision after hire, the average 25

26
23 Wal-Mart did not produce complete data on perfonnance ratings for salaried 27 employees until after the discovery cut-off. Drogin Decl. at ~ 30, n.l O.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-01-2252 MJJ

PAGE 26

pay gap increased.

2

Dr. Drogin conducted numerous mUltiple regression analyses to detem1ine whether other

3 factors might explain these disparities in pay. Results, known as "t-values," larger than 2.0 are 4 considered statistically significant.24 Drogin Decl. at ~ 66. His initial regression of total annual

5 eamings controlled for seniority, weeks worked, part time status, and store location. The results

6 showed that women are paid at least 9.3% less than similarly situated men in every year. The

7 initial regression resulted in a t-value of - 120.5 in every year, which is highly statistically 8 significant and many times greater than the legal threshold of two standard deviations. !d. at ~

9 67. 10

Dr. Drogin then ran a second set of analyses using hourly pay rate, in lieu of aru1Ual

11 eamings, to take into account any possible effect from regular and overtime hours worked. The

12 analysis controlled for seniority, whether hired within the year, part-time/full-time status, store,

13 job position, whether the employee was ever hired into a retail store, management and gender.

14 Again, women made less than men and the disparities were statistically significant (t-value-

15 62.3). The disparities steadily widened from $.18 per hour to $.34 per hour from 1997 to 200 1. 16 Drogin Decl. at ~ 74. Dr. Drogin then added perfom1ance rating as a control factor in the

17 regression analysis, but only for 2001 when data was reasonably complete. Women were paid

18 $.37 less than comparable men in 2001 and the results were highly significant with a t-value of-

19 102.65. Not surprisingly, the disparity increased because Dr. Drogin's earlier analysis found

20 that women have higher average perfonnance ratings scores than do men. Drogin Decl. at '1 30,

21 Table 13; '175, Table 28.

22

23 24 Under both social science and judicial standards, roughly two or more standard
24 deviations (a .05 level of statistical significance) are considered statistically and legally
significant. See, e.g, Hazelwood School Dist. v. United States, 433 U.S. 299, 309-311 & n.14, 17 25 (1977); Segar v. Smith, 738 F.2d 1249,1283 (D.C. Cir. 1984); Contreras v. City o/Los Angeles,
26 656 F.2d 1267,1273 n.3 (9th Cir. 1981). Two to three standard deviations may be sufficient to establish a prima/acie case of discrimination. Hazelwood, 433 U.S. at 312 n.17. In his
27 declaration, Dr. Drogin refers to standard deviations either as "t-values" or "Z-values."

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 27

1

The bottom line is that Dr. Drogin found that women employees at Wal-Mart are paid

2 less than men in every year, in virtually every job, even when relevant non-discriminatory factors

3 were considered. This pattem was found in every one of the 41 Wal-Mart regions. Drogin Dec!.

4 at ~ 76.

5

2.

Female Employees in Wal-Mart Stores Are Far Less Likely to Be

Promoted Than Their Male Counterparts and, When They Are Promoted,

6

Women Take Longer Than Do Men

7

Wal-Mart boasts ofa strong "promote from within" policy, with 72% of its salaried

8 managers starting as hourly associates. Wal-Mart Stores Career Opportunities, Ex. 103. Yet,

9 women are disproportionately employed in lower-paying jobs. They hold about 65% of the

10 hourly jobs, but only 33% of the management positions - a pattem that is consistent in all 41

11 regions across the country. Drogin Dec!. at ~ 18, Table 3; ~ 76. Dr. Drogin conducted a

12 promotion analysis to detem1ine how many women one would expect would be promoted in a

13 non-discriminatory system. He analyzed the available pools for promotion, using the proportion

14 of incumbents in each of the historical feeder jobs for the particular promotion?5 The results

15 showed a consistent pattem of under-promotion of women into each of the higher-level jobs in

16 the stores. The pattem was found in nearly every region ofWal-Mart for each job. In no region
,r 17 was there a statistical disparity that favored women. Drogin Dec!. at 63, Table 26.

18

Support Manager- Dr. Drogin's analysis of promotions into suppOli manager found that,

19 between 1997 and early 2002, women received 2891 fewer promotions than would be expected

20 from their representation in the feeder jobs. This result had a high degree of statistical

21

22 25 Dr. Drogin analyzed Wal-Mart's available job posting data but found that it was not a
,r 23 reliable source of infonnation about who is interested in promotion. Drogin Dec!. at 45-48.
The data for the hourly job posting system showed that only 20% of the actual moves into 24 support manager were captured by the job posting system. The vast majority ofjobs were filled
25 outside the posting system. Similarly, the MCS system for managerial jobs included virtually no data on assistant manager or co-manager promotions. While there was data on posting and
26 promotion into store manager positions, the system does not pennit open bidding and is thus not a valid measure of availability. Applicants must be pre-approved before they post, and the
27 system allows for individual exceptions to eligibility criteria. Drogin Dec!. at ~ 47.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-2252 MJJ

PAGE 28

significance (Z-value -54.38). Drogin Dec!. at ~ 54, Table 22.

2

Management Trainee -- Dr. Drogin found that, for the same time period, women received

3 2952 fewer promotions into management training than would be expected, controlling for feeder

4 job, district and year of move. Again, the results showed a statistically significant shortfall (Z-

5 value = -60.81) that is "virtually impossible to occur by chance, if promotions were selected at

6 random from the availability poo!." Drogin Dec!. at ~ 57, Table 23. This pattern was found in

7 every region ofWal-Mart.

8

Co-Manager Women received 346 fewer promotions than expected based on their

9 representation in the feeder pool. The result was statistically significant (Z-value = -13.81).

10 Drogin Dec!. at '159, Table 24.

11

Store Manager - The store manager positions are filled by co-managers and assistant

12 managers. Obviously, as women have been under-promoted to the first-level management

13 positions, their representation in the feeder pools for store manager is commensurately

14 diminished. Despite their lower representation in the feeder pools, women still received 155

15 fewer promotions than would be expected from their availability, a statistically significant

16 disparity (Z-value -7.72). DroginDecl. at~61, Table 25.

17

Dr. Drogin also studied the time that it took employees to reach management positions.

18 He found that, for the select group of women who do move up the ladder, it consistently takes

19 them longer than comparable men. On average, it took women 4.38 years from date of hire to be

20 promoted to assistant manager, while men took only 2.86 years. To reach Store Manager,

21 women on average took 10.12 years from hire date, compared with 8.64 years from hire for male

22 employees. Drogin Dec!. at '129.

23

These promotion analyses provide strong support for the conclusion that Wal-Mart

24 promotion practices adversely affect women and do so in a consistent way across the entire

25 country.

26

27

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 29

3.

The Representation of Women in Management at Wal-Mart is Far

Lower Than That of Comparable Employers Operating in the

2

Same Labor Markets

3

The under-representation of women in management at Wal-Mart is markedly different

4 from the employment patterns of other major retailers. While Wal-Mart employs an in-store

5 management workforce with 34.5% women, comparable retailers employ 56.5% female

6 management, a staggering 22 percent difference. Bendick Decl. at ~r 31.

7

Labor economist Marc Bendick compared, or benchmarked, Wal-Mart against 20

8 comparable general merchandise retailers, much as Wal-Mart itself benchmarks it workforce

9 with other retailers. His analysis relied on workforce data from EEO-l reports provided by the

10 companies to the EEOC. Rather than simply comparing the percentage of female management

11 in each company overall, Dr. Bendick broke down the company-to-company comparisons into

12 375 local labor markets, comparing Wal-Mart only to the other firms that compete for labor in

13 the same local labor area?6 For each local labor market, Dr. Bendick calculated the average

14 proportion of women among managers in all fim1s in the specific market, including Wal-Mart.

15 He then calculated the "shortfall" - the number of additional female managers that Wal-Mart

16 would have if it utilized women in management at the same rate as these market averages.

17

Dr. Bendick found that, in 1999, Wal-Mati had a cumulative shOlifall of 4,004 female in-

18 store managers, compared to the expected number based on the representation of women in the
,r,r 19 large chain retail industry, a 22% difference. Bendick Decl. at 30, 31. Put differently, "for

20 every seven women managers Wal-Mart actually employed, three additional women managers

21 were "missing." Bendick Decl. at ~ 30 (emphasis in original). Dr. Bendick detern1ined that this

22 result was highly statistically significant. The shortfall corresponds to 47 standard deviations,

23 meaning that the probability that the result was due to chance alone was "less than one chance in

24 many billions." Bendick Decl. at ~ 32. The shortfall was consistent throughout the country,

25

26
26 This analysis ensured that differences in employment patterns among the firn1s are not
27 a function of differing markets.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-22S2 MJJ

PAGE30

1 found in four out of every five Wal-Mart stores, in 49 out of 50 states (including Califomia), and

2 in both urban and non-urban communities. Bendick Dec1. at '1'144,45.

3

Dr. Bendick then conducted the bench-marking analysis for the period 1975 2002 and

4 found that Wal-Mati had a consistent shortfall in female managerial representation in every year

5 examined. He found that by 1999, Wal-Mart had not yet achieved the level of representation for

6 women managers that comparable finTIs had 25 years ago. Dr. Bendick concluded that:

7

[tJhe scale, pervasiveness, and consistency of under-representation of women among

Wal-Mart's managers suggests that such under-representation is deeply rooted in the

8

organization's corporate culture and the company-wide employment attitudes, policies

and practices that reflect and maintain that culture.

9

Bendick Dec1. at '167.

10

Notably, Dr. Bendick's results are consistent with the results ofWal-Mart's own intemal

11

bench-marking studies, which also concluded that Wal-Mart falls significantly behind other

12

comparable finns. See discussion infra at Section II.F. Wal-Mart also conducted its own "gap"

13

analysis to detennine the number of females in management it would need to match their

14

representation in the community. It concluded that Wal-Mart had a "gap" of 3324 women

15

managers. Gap Analysis, Ex. 104; Division 1 Operations Gap AnalysislAction Plan, Ex. 105 at

16

WMH0665709; Haworth Dep. at 170:1-24, Ex. 18.

17

F. Wal-Mart Senior Management Has Been Aware of the Adverse Effects of Its

18

Personnel Policies on Female Employees for Many Years But Has Failed to

Take Effective Steps to Redress These Problems

19

1. Wal-Mart Management Has Long Known of the Adverse

20

Consequences ofIts Policies on Female Employees

21

Wal-Mart's People Division has annually prepared reports showing the percentage of

22 women in management positions company-wide since at least 1993. FOUlih Quarter Diversity

23 Representation: Total Management, Ex. 106: Diversity Report FYOO 1st Quarter YTD, Ex. 107;

24 7/15199 Email and Attachments Re: Diversity Presentation, Ex. 108; 10102/01 Email and

25 Attachments Re: Cole's Board Presentation, Ex. 109; Coleman Peterson, the Executive Vice

26 President of the People Division, annually presents these incumbency reports company-wide and

27 by division, to the Wal-Mart Board of Directors as well as to senior management. Peterson Dep.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-01-2252 MJJ

PAGE31

that relocation was required for promotion to management. 29

2

Turning to compensation, Wal-Mart claims it has not prepared any regular analyses of

3 compensation by gender, a surprising position since the company uses its information technology

4 system to track every other aspect of its business. Amold Dep. at 174:2-12; 229:17-230:6, Ex.

5 31; Coughlin Dep. at 122:21-123:5, Ex. 15; Harris Dep. at 176:20-177:8, Ex. 62. The few

6 isolated reports that have been produced by Wal-Mart consistently show that women on average

7 are paid less than men holding the same positions. Peterson Dep. at 141 :5-20, Ex. 16. For

8 example, a study of retail store management positions conducted in 2000 concluded that

9 "[gJenerally, average salaries for female and minority males are below the overall average pay

10 for most jobs" and "[aJverage pay increases for minority males and females are generally below

11 overall average income ratio across most jobs." Wal-Mart Stores/Supercenter Minority/Gender

12 Pay Analysis FYE 2000, Ex. 120; Sam's Club Minority/Gender Pay Analysis FYE 2000, Ex.

13 121. Another study of the average salaries of new district managers by gender showed that in

14 every year since 1987, new male district managers were paid more than new female district

15 managers - with the difference ranging from $3,000 to $15,000. District Manager Average

16 Salary Chart, Ex. 122; see also District Manager Average Salary by Time in Position Chart, Ex.

17 123.

18

19 29 See e.g., StumpfDecl. at ~ 4; Calimee Decl. at ~ 2; Connaker Decl. at ~ 8; Crom Decl.
20 at '16,8; Collier Decl. at ~ 5, 7, 8,11,14; Dobbs Decl. at '14; Ervine Decl. at '118,19; Gordon Decl. at ,r 10; Hall, T. Decl. at ~ 6, 8, 9, 27; Jolmson, J. Decl. at ~ 8; Kellems Decl. at ~ 6, 21;
21 Lehman Decl. at ~ 6,12,14; Martin Decl. at ~ 3,4; Ramirez Decl. at ~ 13,27; Pidich Decl. at,r 22 15, 19; Renati Decl. at ~ 2; Rojas Decl. at'l 9; Bell Decl. at '14, 9; Crawford Decl. at ~ 2,4, 8;
DeWall Decl. at ~ 6; Durfey Decl. at ~ 3; Durfey Decl. at'l 8; Farmer Decl. at ~ 9,10; Johnson, 23 K. Decl. at ~ 19; Jones, L. Decl. at ~ 5b; Marshall Decl. at '14; Rojas Decl. at,r 9; Williams, L.
Decl. at,r 13; Zumbrum Decl. at ~ 17; Tallent Decl. at'l 8; Mott Decl. at 12. Since the filing of 24 this lawsuit, Wal-Mart's official policy has shifted to treating relocatability as a "preferred" but
25 not required criteria. Emailsre:ManagementRelocatability.Ex.118. The change in "official" policy appears to be a response to the lawsuit. Email re: Response to the Retreat Notes, Ex. 119.
26 However, senior management is apparently unaware ofthis post-litigation change in policy. Coughlin Dep. at 159:23-160:11, Ex. 15. Wal-Mart's change in policy, in the face of litigation,
27 demonstrates that the "requirement" was not necessary to meet business needs.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-2252 MJJ

PAGE 34

1

If these reports were not enough to alert Wal-Mart management to these problems, many

2 individual Wal-Mart and Sam's Club female employees have tried to raise the alarm by calling
,r 3 and sending letters and e-mailstoWal-Martexecutives.FarmerDec!.at 21 and Exs. 1 and 2

4 (declarant sent e-mails to Wal-Mart CEO Lee Scott in 2000 and 2001 chronicling the ways in

5 which she had observed a gender gap in pay within her store: "[F]emale department managers

6 [who] have been with Wal-Mart for seven years ... don't make as much as some male associates

7 [who] have only been with Wal-Mart a few years ... Talk about discrimination..."); Ratliff Dec!. at

8 ~ 13 and Ex. A (declarant wrote letter to Wal-Mart CEO Lee Scott in 2002 describing concerns

9 about the gender differences in pay and treatment at her Wal-Mart Neighborhood Market);

10 Collier Dec!. at ~ 15 (declarant wrote letter to Wal-Mart CEO Lee Scott in August 2000
,r,r 11 complaining about gender and racial discrimination). See also Hom Dec!. at 12, 13 (female

12 assistant manager received copies of three letters in 1992 and 1993 to top executives of Wal-Mart

13 describing concerns about a pattern of discrimination and retaliation against women employees at

14 Sam's Club).

15

Outside groups have also tried to direct Wal-Mart management's attention to the

16 problems of discrimination against female workers. For several years, a group of nuns has

17 attended Wal-Mart's annual shareholder meeting and asked the company to conduct a glass

18 ceiling review. Reeves II Dep. at 118:9-13, Ex. 33. Each year, the company has successfully

19 urged shareholders to reject the proposal. Notice of Annual Meeting of Shareholders, Ex. 124.

20

Notwithstanding the clear evidence that female employees have been disadvantaged by

21 pay and promotion practices, Wal-Mart has not undertaken any analysis or study of the causes of

22 these problems. Coughlin Dep. at 122:6-123:5, Ex. 15; Harris Dep. at 176:20-177:8, Ex. 62;

23 Indeed, even after this lawsuit was filed, the company took no steps to investigate the problems

24 further. Harper 1. Dep. at 36:3 - 37:14, Ex. 1; Swanson Dep. at 127:15-128:13, Ex. 14.

25

Nor can Wal-Mart attribute the plight of its female employees to innocent causes. Wal-

26 Mart concedes that women are not less qualified as a group than men for management positions

27 nor does it contend that women are more frequently disciplined. WM Supplemental Response to

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-2252 MJJ

PAGE 35

Interrogatories No. 11, 17, Ex. 97. Moreover, many senior managers testified that they had no

2 reason to believe that women are less interested in management than are men. Harris Dep at

3 85:7-86:5, Ex. 62; Carpenter Dep. at 141 :16-19, Ex. 28. Indeed, they were at a loss to explain

4 why so few women held management positions. Kocharian Dep. at 7: 18-22, Ex. 64; M.

5 Anderson Dep. at 10:25-11:2, Ex. 63; Sherman Dep. at 12:15-13:3, Ex. 43; Bishop Dep. at

6 21:18-20, Ex. 65; Harper II Dep. at 304:3-22, Ex. 11; Schwindt Dep. at 211:16-212:25, Ex. 38.

7 This willful ignorance cannot be reconciled with Wal-Mart's claim to be committed to diversity

8 and respect for the individual.

9

2. The Numerical Goals for Women in Management Are Arbitrarily Set and

Lack Any Mechanism for Holding Managers Accountable

10

Wal-Mart sets numerical goals for the overall percentage of women in management.

11

Harper II Dep. at 292:25-293:4, Ex. 11. The goals are set at the district level and then aggregated

12

into regional and divisional goals. Id at 294:7-14. Store managers are largely unaware of the

13

diversity goals. Mireles Dep. at 219:20-23, Ex. 26; Raps Dep. at 222:9-223: 15, Ex. 48; Bosler

14

Dep. at 85:6-13, Ex. 57; Oshier Dep. at 69:16-24, Ex. District managers are not given any

15

direction about how to set goals for their district and they can do so however they wish. Harper

16

II Dep. at 297:22-298:5, Ex. 11; Butler Dep. at 203:11-21, Ex. 4. The goals are not tied to any

17

analysis of the number of women who are available and qualified for promotion to the next

18

level. Harper II Dep. at 302:7-21, Ex. 11. Typically, managers set modest goals that only

19

slightly exceed the levels ofwomen currently holding management positions. Bielby Dec!. at,r

20

55. As District Manager Danny Carter put it, he did not want to set a goal that was "umealistic

21

or I knew wouldn't happen immediately." D. Carter Dep. at 220:3-24, Ex. 23. RPM Sandy

22

Ellison testified that she reviewed the district manager goals simply to see if they "weren't worse

23

than the year before." Ellison Dep. at 187:12-23, Ex. 66.

24

Failure to meet even these modest goals has no real consequence on the district manager.

25

Jarrells Porter Dep. at 149: 17-150: 1, Ex. 67. Meeting diversity goals is just one of four elements

26

of a performance dimension that makes up 5% of a district manager's evaluation. Reeves II Dep.

27

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 36

1 at 44:5-7, Ex. 33. Even worse, it is not necessary to actually meet the goal to get a positive

2 diversity score. A manager only needs to "show progress" in meeting these goals. In fact, where

3 a senior manager's figures showed that the percentage has actually declined, he still received a

4 positive score. Haworth Dep. at 153 :3-20, Ex. 18. Not surprisingly, the goals have had little

5 impact on the percentage of women in field management. Drogin Decl. at 'f~ 21,77.

6

It is well understood that, unless there is meaningful accountability for meeting diversity

7 goals, they will not accomplish their purpose. Bielby Dec!. at ~'f 56-57. When asked how the

8 female representation in field management could be increased, former Sam's Club Vice President

9 of Human Resources, Jeffrey Reeves, explained:

10

I think what you do is to get people's attention you tie expectations and the number to

people's incentive, whether it's their base or it's their bonus, but I think that's the first and

11

foremost and most important piece. Until you do that, it will continue to be lip service.

12 Reeves II Dep. at 281:19-282:4, Ex. 33. See also Bilgischer Dep. at 184:25-185:19, Ex. 45.

13

Accordingly, the record assembled in this action readily demonstrates that Wal-MaIi has

14 pursued a common set of compensation and promotion policies and practices which have

15 disadvantaged female employees and which, notwithstanding knowledge of the shortcomings of

16 these practices and policies by senior management, have been left unremedied for the entire

17 period covered by the proposed class. The claims of the Named Plaintiffs and of the thousands

18 of women associates who are similarly situated are susceptible of class treatment.

19 III. ARGUMENT

20

Plaintiffs ask this COUli to certify a class consisting of:

21

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

22

management track promotions policies and practices. 3D

23

A motion for class celiification is not an occasion for examination of the merits of the

24 case. Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2nd Cir. 1999); see also

25

26

30 The class definition excludes decisions on promotions into, or compensation for, store

phannacists, who are subject to specialized educational and state licensing requirements. See

27 n.14.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 37

1 Moore v. Hughes Helicopters, Inc., 708 F.2d 745,480 (9th Cir. 1983). "There is nothing in

2 either the language or history of Rule 23 that gives a court any authority to conduct a preliminary

3 inquiry into the merits of a suit in order to detennine whether it may be maintained as a class 4 action..." Eisenv. Carlisle & Jacquelin, 417 US. 156, 177(1974). Instead, the Court must

5 detennine if the plaintiffs have proffered evidence to meet each of the requirements of Rule 23.

6 No weighing of competing evidence is appropriate at this stage of the litigation. Caridad, 191

7 F.3d at 293.

8

Plaintiffs state claims under both the disparate treatment and disparate impact analyses of

9 Title VII. As discussed below, this class meets all the requirements of Rule 23(a): numerosity,

10 commonality, typicality and adequacy of representation. In addition, this class meets the

11 requirements of Rule 23(b)(2) in that final injunctive relief is appropriate.

12

A. All Requirements of Rule 23(a) Are Met

13

1.

The Proposed Class is Sufficiently Numerous

14

The class proposed here is plainly so numerous that ') oinder of all members is

15 impracticable." Fed. R. Civ. P. 23(a)(1). Classes of fewer than 100 persons are sufficiently

16 numerous to render joinder impracticable. Jordan v. Los Angeles County, 669 F .2d 1311, 1319

17 n.lO (9th Cir. 1982)judgment vacated on other grounds at 459 US. 810 (1982). Wal-Mart 18 employs over 930,770 hourly employees, Drogin Decl. at ~ 31, Table 14 and almost two-thirds

19 are women. Id. There should be no dispute that this satisfies the numerosity requirement.

20

2.

The Claims ofthe Named Plaintiffs Are Typical of the Class They Seek to

Represent

21 Typicality is satisfied where the named plaintiffs have suffered from defendant's general

22 policy of discrimination in compensation and promotions. Gen. Tel. Co. ofSouthwest v. Falcon,

23 457 US. 147, 159 n.15 (1982); Piva v. Xerox Corp., 70 F.R.D. 378, 387-88 (N.D. Cal. 1975).31

24

25

31 Moreover, the "commonality and typicality requirements of Rule 23(a) tend to merge."

26 Falcon, 457 US. at 157 n.l3. A finding of commonality will ordinarily satisfy the requirement of typicality as well. Barefieldv. Chevron USA., Inc., No. C-86-2427 TEH, 1987 WL 65054, at

27 *5 (N.D. Cal. 1987); Piva v. Xerox Corp., 70 F.R.D. 378,385 (N.D. Cal. 1975). Thus, the

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-22S2 MJJ

PAGE 38

1 Under the rule's "pen11issive standards," representative claims are "(typical) if they are

2 reasonably co-extensive with those of absent class members; they need not be substantially

3 identical." Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998). Here, named

4 plaintiffs Betty Dukes, Cleo Page and Patricia Surgeson have each suffered from Wal-Mart's

5 general policy of discrimination in compensation, and each of the plaintiffs - Betty Dukes,

6 Patricia Surgeson, Cleo Page, Debra Gunter, Edith Arana and Christine Kwapnoski have

7 suffered from Wal-Mart's general policy of denying women promotions to management

8 positions. See nn.12 and 16. It is not necessary for every named plaintiff to have been affected

9 by every type of discrimination challenged in plaintiffs' class claims. It is sufficient that, taken

10 as a whole, the named plaintiffs have been subject to each of the challenged practices. Staton v.

11 Boeing 313 F.3d 447,466 (9th Cir. 2002). Plaintiffs need not have a class representative for

12 each job category and for each type of claim alleged. Taylor v. Union Carbide Corp., 93 F.R.D.

13 1, 6 (S.D. W. Va. 1980) 32

14

Any minor factual variations arising from the individual details of each plaintiffs

15 employment are irrelevant since all proceed under the same legal theory: that Wal-Mari's

16 centrally controlled personnel system systemically disadvantages women employees in

17 compensation and promotion decisions. Wofford v. Safeway Stores Inc., 78 F.R.D. 460,488

18 (N.D. Cal. 1978); Adams v. Pinole Point Steel Co., 1994 WL 515347, 65 F.E.P. 774 (N.D. Cal.

19 1994). Thus, the named plaintiffs may properly represent a nationwide class, although they all

20

21 typicality requirement is also satisfied for the reasons set forth in the discussion of commonality, 22 in subsection 3 below.

23

32 Further, it does not matter that some women have been denied promotion to assistant

manager positions and others have been denied promotion to store manager positions. As a court 24 in this district found in certifying an employment discrimination class action, "the Court

25 perceives no significant difference in interest ... among those employees denied opportunity for advancement, at whatever level that denial occurred." Wofford v. Safeway Stores, Inc., 78 F.R.D.

26 460, 491 (N.D. Cal. 1978). See Stender v. Lucky Stores, Inc., 1990 U.S. Dist. Lexis 19985 (N.D.

Cal. June 8, 1990) (named plaintiffs allowed to represent claims of initial assignment, although 27 they only had claims for lack of promotion).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-2252 MJJ

PAGE 39

1 reside in California. The class representatives have been subjected to the same policies and

2 practices that have adversely affected members of the class that they seek to represent. The same

3 compensation and promotion practices in effect in the California stores apply throughout Wal-

4 Mart's other domestic facilities. See Sections II C, D supra. Accordingly, the claims of the

5 named plaintiffs are typical of the claims advanced by members of the class they seek to

6 represent.

7

Plaintiffs have submitted the declarations of over 110 current and fornler female

8 employees who explain how they each have been subjected to the discriminatory pay and

9 promotion practices at issue in this case. The Supreme Court has recognized that such anecdotal

10 evidence is particularly valuable to "bring the cold numbers convincingly to light." Teamsters v.

11 United States, 431 U.S. 324, 339 (1977). These declarants have worked in Wal-Mart and Sam's

12 Club stores all over the country. Ex. 125 (map of locations of discriminatory events described by

13 declarations). What is striking about their stories is that, even though they worked in different

14 stores, in different states and in different divisions, they experienced the same discriminatory

15 policies and suffered the same adverse consequences.

16

3. There Are Questions of Law and Fact Common to the Class

17

Rule 23(a)(2) requires that there be questions oflaw or fact common to the class. It does

18 not require that all questions of law or fact be common to every single member of the class;

19 rather, at least one issue must be common to the claims of all the class members. Hanlon, 150

20 F.3d at 1019; 5 Herbert B. Newberg & Alba Conte, Newberg on Class Actions §3.l0 at 154 (3d

21 ed. 1992); 7A Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d, §1763, at 198

22 (1986). Courts have not considered commonality a difficult hurdle; the requirement should be

23 "construed permissively." Hanlon, 150 F.3d at 1019.

24

For example, there is sufficient commonality where "the named plaintiffs' claims ...

25 charge discrimination based on patterns and practices not special or unique to themselves, and

26 the members of the putative class ... have been similarly victimized by the same patterns or

27 practices." Wofford, 78 F.R.D. at 478; see also Bouman v. Block, 940 F.2d 1211, 1232 (9th Cir.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJ]

PAGE 40

1991). Plaintiffs here have alleged the existence of common discriminatory practices in

2 compensation and promotion which affect putative class members in a like manner as the named

3 plaintiffs.

4

Moreover, differences in the ways in which these practices affected individual members

5 of the class do not undemline the finding of commonality. Staton, 313 F.3d at 447, 464 (where

6 plaintiffs have alleged a "complex of discriminatory practices," individual class members need

7 not have been affected by every practice); Wofford, 78 F.R.D. at 473 ("a class action may be

8 maintainable to challenge a general course of discrimination, even though different members of

9 the class may have been affected in different ways and at different times.") For example,

10 different class members may have been under-compensated in different amounts; some

11 employees may have been denied promotion to Assistant Manager while others may have been

12 denied promotion to Store Manager. Nonetheless, all harm for which relief is sought is the result

13 of the same general course of conduct.

14

The class is challenging discrete policies and practices that have adversely affected the

15 female employees within Wal-Mart's domestic retail facilities. The challenged policies have as a

16 common feature that they have entrusted to managers very broad discretion to make promotion

17 and compensation decisions with little or no oversight.}} As the Supreme Court recognized, the

18 "problem of subconscious stereotypes and prejudices" when combined with an "undisciplined

19 system of sUbjective decisionmaking has precisely the same effect as a system pervaded by

20 impemlissib1e intentional discrimination." Watson v. Fort Worth Bank of Trust Co., 487 U.S.

21 977,990-91 (1988). The common policies and practices that the class challenges include:

22

(a) Wal-Mart's decision not to issue criteria for making promotion selections from

23 among minimally qualified candidates, thereby permitting the managers to use subjective and

24

25

}} An employer's decision to permit SUbjective decision making has been recognized as

presenting common questions appropriate for class certification. Wofford, 78 F.RD. at 479;

26 Caridad, 191 F.3d at 286; Wagner v. The NutraSweet Co., 170 F.RD. 448,450-51 (N.D. Ill.

1997); Morgan v. UPS, 169 F.RD. at 349; Shores v. Publix Super Mkts., Inc., No. 95-116227 CIV-T-25(E), 1996 U.S. Dist. LEXIS 3381 (M.D. Fla. March 12, 1996).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 41

1 idiosyncratic factors in making such selections that may be based on stereotypes, rather than job-

2 related factors. Bielby Dec!. at '1'138-39; supra at Section II D;

3

(b) Wal-Mart's decision to entrust managers with the discretion to forego posting job

4 vacancies, its refusal, until January 2003, to post vacancies for its Management Training

5 Program, thereby denying many women the chance to even apply for promotions, and its refusal
6 generally to post assistant manager and co-manager positions. Bielby Decl. at '1 44, supra at

7 Section II D;

8

(c) Wal-Mart's decision not to exercise oversight or conduct any systematic review of

9 the grounds on which candidates are selected for promotion, ensuring that whatever bias may

10 infect promotion decisions goes undetected and unremedied; Bielby Dec1. at 'I~ 21- 44; supra at

11 Section II D ;

12

(d) Wal-Mart's decision to authorize managers to depart from the starting pay rates for

13 hourly employees without offering any guidance or training on the particular factors that may be

14 considered or limits on the pay rates that may be offered, permitting managers to make decisions

15 based on gender rather than merit; Bielby Decl. at ~ 40; supra at Section II C;

16

(e) Wal-Mart's decision to authorize managers to award payraises-for"exceptional

17 perfonnance," without offering any guidance as to the factors that may be considered, allowing
18 bias to infect decisions on pay; Bielby Dec1. at '1'1 21- 41; supra at Section II C;

19

(f) Wal-Mart's decision not to conduct any systematic review of compensation decisions

20 by gender, thereby allowing bias that has entered compensation decisions to go undetected and

21 unremedied. Bielby Dec1. at '137; supra at Section II F;

22

(g) Wal-Mart's decision to require that candidates for management promotions be

23 willing and able to relocate, despite the concession that such a requirement lacks any business

24 justification and its operation has disadvantaged female employees. Bielby Dec1. at '1~ 21- 45;

25 supra at 32-33.

26

Common questions of law and fact are presented with respect to each ofWal-Mart's

27 policies and practices set forth above. Specifically, two factual questions arise (i) are these

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-2252 MJJ

PAGE 42

1 practices common throughout Wal-Mart?; and (ii) do these practices cause women at Wal-Mart

2 to be paid less and promoted less often than similarly situated male employees? There are also

3 three common legal questions: (i) does Wal-Mart's conduct violate Title VII, 42 U.S.c. § 2000e-

4 5, by causing a pattern or practice of discrimination against women employees?; (ii) does Wal-

5 Mart's conduct violate Title VII because it has a disparate impact on women employees that is

6 not justified by business necessity?; and (iii) did Wal-Mart act with reckless indifference to the

7 federally-protected rights of its female employees, making it liable for punitive damages?

8

4. The Named Plaintiffs and Their Counsel Are Adequate Representatives

9

Rule 23(a)(4) requires that the named representatives "will fairly and adequately protect

10 the interests of the class." The rule is satisfied where, as here: (1) the representatives' claims are

11 sufficiently interrelated to and not antagonistic with the class' claims; and (2) counsel for the

12 representatives are qualified, experienced and generally able to conduct the litigation. Hanloll, 13 150 F.3d at 1020; Harriss v. Pan American World Airways, Inc., 74 F.R.D. 24, 42 (N.D. Cal.

14 1977); Lerwill v. Inflight Motion Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). Here, the

15 interests of the class and the interests of the named plaintiffs are the same. Both seek to prove

16 the existence of Wal-Mart's general practice of gender discrimination in compensation and

17 promotion. There is no antagonism between the named plaintiffs' claims and those of the class

18 they seek to represent.

19

The named plaintiffs have retained counsel who have the resources and expertise to

20 prosecute this action vigorously on behalf of the class. Plaintiffs retained a coalition ofthree not-

21 for-profit organizations and three private law firms each of which, standing on its own, possesses

22 substantial experience in litigating employment discrimination cases; collectively they are more

23 than qualified to serve as class counsel. See Declaration of Brad Seligman, passim. Plaintiffs

24 have retained counsel who are among the most experienced in the country in representing

25 plaintiffs in employment discrimination class actions. Id.

26

B. The Proposed Class Satisfies the Requirements of Rule 23(b)(2)

27

Certification under Rule 23(b)(2) is appropriate when the defendant "has acted or refused

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-01-2252 MJJ

PAGE 43

to act on grounds generally applicable to the class," thereby making appropriate final injunctive

2 relief or corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P.

3 23(b)(2). "Civil rights cases against parties charged with unlawful, class-based discrimination

4 are prime examples" of Rule 23(b)(2) classes. Amchem Prods., Inc. v. Windsor, 521 U.S. 591,

5 117 S. Ct. 2231,2245 (1997). Indeed, it is "often acknowledged, (b)(2) was deliberately drafted

6 to facilitate the vindication of civil rights through the class action device." Barefield v. Chevron

7 U.S.A., Inc., 48 F.E.P. Cases 907, 910 1988 WL 188433 (N.D. Cal. 1988).

8

l. The Court Should Certify a Class for Liability, Injunctive and Equitable

Relief Under Rule 23{b)(2)

9

Certification of a class under Rule 23(b)(2) is appropriate here because Wal-Mart has

10

acted and refused to act on grounds generally applicable to the entire class. See section III A.3,

11

supra. Here, plaintiffs have alleged that Wal-Mart has acted in a discriminatory manner

12

generally applicable to the class, and plaintiffs have sought declaratory and injunctive relief with

13

respect to the class as a whole. Third Amended Complaint at 11'119, 114, Prayer for Relief.

14

Moreover, plaintiffs have presented evidence that these general practices have adversely affected

15

many members of the class. See Drogin Decl., passim.

16

In addition to substantial injunctive relief, plaintiffs seek back pay for the class as a

17

whole. Back pay awarded under Title VII, while monetary in nature, is a form of equitable relief.

18

Gotthardt v. Nat'! R.R. Passenger Corp., 191 F.3d 1148, 1152-55 (9th Cir. 1999). Plaintiffs

19

seeking back pay have long secured certification under Rule 23(b)(2). See, e.g., Probe v. State

20

Teachers'Ret. Sys., 780 F.2d 776 (9th Cir. 1986); Salinas v. Roadway Express, 735 F.2d 1574,

21

1576 (5th Cir. 1984); Allison v. Otgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998); see

22

also, 42 U.S.c. § 2000e-5(g) (1994).

23

2.

The Court Should Certify Plaintiffs' Claims for Punitive Damages Under

24

Rule 23(b)(2) With Notice and Right to Opt Out

25

Plaintiffs also seek a class-wide award of punitive damages to punish Wal-Mart for its

26 reckless disregard of the rights of its women employees to equal employment opportunity, and to

27 deter similar misconduct by Wal-Mart and other large retailers in the future. See Third Amended

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-22S2 MJJ

PAGE 44

1 Complaint, Prayer for Relief. An award of punitive damages to the class as a whole is 2 appropriate here because the misconduct warranting punitive damages was perpetrated by senior

3 Wal-Mart management and has adversely affected women employees in a similar fashion.

4 Kolstad v. American Dental Ass 'n, 527 U.S. 526, 536 (1991); Barefield, 1988 WL 188433, at *3;

5 Beck v. The Boeing Co., 203 F.R.D. 459 (W.D. Wa. 2001), modified by slip op. Dec. 27,2001,

6 affirmed in part, vacated in part by unpublished decision, 2003 WL 683797,83 Empl. Prac. Dec. 7 ~ 41,313 (9th Cir. Feb. 25, 2003); EEOC v. Dial Corp., Civ. Action No. 99-C-3356, slip op

8 (N.D. Ill. Feb. 14,2003), See Declaration of Julie Goldsmith, hereinafter referred to as

9 "Goldsmith Dec!."

1 0

Claims for punitive damages, awarded to the class as a whole, may properly be certified

11 under Rule 23(b)(2).34 Out of an abundance of caution, however, plaintiffs ask that the Comi

12 direct that class members be provided notice and an opportunity to opt out, akin to that provided

13 by Rule 23(b)(3). The Court may do so pursuant to Rule 23(d), which pem1its it to issue such

14 orders as are necessary. See Molski v. Gleich, 318 F.3d 937, 947 (9th Cir. 2003). In Molski, the

15 Ninth Circuit adopted an ad hoc approach similar to the Second Circuit in Robinson v. Metro-

16 North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) to determine whether certification under

17 Rule 23(b)(2) was appropriate in cases seeking monetary in addition to injunctive relief, and

18 encouraged the use of notice under Rule 23 (d) to address concerns about the interests of absent

19

20 34 It has long been recognized in this circuit that classes could be celiified under Rule

21 23(b)(2) even when such actions involve damages. Probe, 780 F.2d at 780 ("Class actions

22

certified under Rule 23 (b)(2) are not limited to actions requesting only injunctive or declaratory relief, but may include cases that also seek monetary damages." affinning Rule 23(b)(2) class

23 certification of claims under the Equal Pay Act seeking monetary damages); Molski v. Gleich, 318 F.3d 937,947 (9th Cir. 2003). Courts have specifically included punitive damages in classes

24 certified under Rule 23(b)(2); Barefield, 1988 WL 188433, at *3; Butler v. Home Depot, No. C-
94-4335 sr, 1996 WL 421436 (N.D. Cal. Jan. 25,1996). See also Arnold v. United Artists
25 Theatre Circuit, Inc., 158 F.R.D. 439, 450, 461 (N.D. Cal. 1994) (certifying entire case under

26 Rule 23 (b)(2) because the statutory damages available in that case were more akin to back pay claims in the ease of their calculation); Rodriguez v. Carlson, 943 F. Supp. 1263, 1275-77 (E.D.

27 Wash. 1996) (same).

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-2252 MJJ

PAGE 45

1 class members. Molski, 318 F.3d at 947,949-50.

2

This hybrid approach has also been endorsed by other circuits called upon to address

3 precisely employment discrimination classes seeking punitive damages. Robinson v. Metro-

4 North Commuter R.R. Co., 267 F.3d 147, 166-67 (2d Cir. 2001) ("any due process risk posed by

5 (b) (2) class certification of a claim for non-incidental damages can be eliminated by the district

6 court simply affording notice and opt out rights to absent class members for those pOliions of the

7 proceedings where the presumption of class cohesion falters - i. e., the damages phase of the

8 proceedings."); Jefferson v. Ingersoll Int'! Inc., 195 F.3d 894, 898-99 (7th Cir. 1999) (endorsing

9 celiification under Rule 23(b)(2) with notice and opt-out provided for damage claims); see also

10 Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) (finding Rule 23(d)(5) "broad enough to

11 permit the court to allow individual class members to opt out ofa (b) (1) or (b) (2) class when

12 necessary to facilitate the fair and efficient conduct of the litigation.") (citation omitted).

13

In awarding punitive damages, defendant's conduct, not the individual circumstances of

14 class members, is at issue. Kolstad, 527 U.S. at 536; see also, Cooper Indus. v. Leatherman Tool

15 Group, 532 U.S. 424, 432 (2001). The circumstances of individual class members, therefore, do

16 not preclude the class from seeking a collective award of punitive damages. In Barefield, Judge

17 Henderson applied this same analysis in an employment discrimination class action:

18

A class claim for punitive damages does not detract from the homogeneity or

cohesiveness of the class. Rather, it is consistent with the notion that the focus of a [Rule

19

23](b)(2) action is the defendant's conduct towards persons sharing a common

characteristic. Because the purpose of punitive damages is not to compensate the victim,

20

but to punish and deter the defendant, any claim for such damages hinges, not on facts

unique to each class member, but on the defendants' conduct toward the class as a whole.

21

Barefield, 1988 WL 188433 at *3. Thus, the court held punitive damages could be detemlined

22 on an aggregate basis. !d. at *4_5.35

23

24

25

35 See also, Hilao v. Estate ofMarcos, 103 F.3d 767, 780-81 (9th Cir. 1996) (human

rights abuses); Butler v. Home Depot, No. C-94-4335 SI, 1996 WL 421436 (N.D. Cal. Jan. 25,

26 1996) (employment discrimination); In re Exxon Valdez, 229 F.3d 790 (9th Cir. 2000), and 270

F.3d 1215 (9th Cir. 2001) (oil spill); EEOC v. Dial Corp., Civ. Action No. 99-C-3356 slip op 27 (N.D. Ill. Feb. 14,2003) (pattern and practice sexual harassment case), see Goldsmith Dec1.; Day

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 46

3. The Court Could Also Certify the Case Pursuant to Rule 23(b)(3)

2

In the altemative, Plaintiffs' claims are also suitable for certification under Rule 23(b)(3).

3 In order to obtain certification under Rule 23(b)(3), plaintiffs must show that they meet the

4 requirements of Rule 23(a), and that "questions oflaw or fact common to the class members of

5 the predominate," and "a class action is superior to other available methods."

6

There are numerous common issues in this case, as discussed above. The common

7 questions relate to whether Wal-Mmi is liable for a pattem or practice of discrimination against

8 female employees and whether its policies and practices have had a disparate effect on female

9 employees. Here, resolving the common question ofWal-Mart's liability for a pattem or practice

10 of discrimination is the dominant issue in the case. Moreover, the issue of whether Wal-Mart is

11 liable for punitive damages, and the amount of punitive damages to which the class is entitled,

12 are also significant issues which can be resolved on a class-wide basis. Thus, the most

13 substantial questions would be decided at the class-wide liability trial, leaving only discrete

14 questions relating to allocation of damages to be determined on an individual basis.

15

Class treatment is, moreover, superior to other available methods of litigation. It would

16 be far more costly for each individual female employee ofWal-Mart separately to seek discovery

17 ofWal-Mart's policies, obtain data conceming personnel decisions, and have a multitude of

18 different experts analyze such data for each individual case. Moreover, separate lawsuits would

19 require analysis of the same evidence by a multitude of courts and juries. Finally, the disparity in

20 resources between individual women employed by Wal-Mart, most of them making less than

21 $25,000, and the world's largest private employer, could easily intimidate potential plaintiffs

22 from proceeding individually.

23

C. Proposed Trial Plan

24

Plaintiffs propose the following trial plan.

25 STAGE 1: The jury decides:

26

27 v. NLO, 851 F. Supp. 869,884-85,887 (S.D. Ohio 1994) (radiation exposure). 28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE 47

1

1) Whether Wal-Mart has engaged in a pattern and practice of discrimination (liability

2

for class-wide disparate treatment);

3

2) Whether Wal-Mali's conduct meets the standard for an award of punitive damages;

4

3) If liable, the aggregate amount oflost earnings owed to the class and a measurement

5

of front pay;

6

4) If liable for punitive damages, the aggregate amount of punitive damages owed to the

7

class;

8

5) Whether Wal-Mart is liable to the named plaintiffs for gender discrimination, and if

9

so, in what amount. 36

10 The Court decides:

11

1) Whether Wal-Mart's employment practices have had an adverse impact on women

12

(liability for disparate impact claim), subject to jury findings.

13 STAGE 2: The Court would decide:

14

1) Whether Wal-Mart's employment practice was justified by business necessity

15

(defense to the disparate impact claim), and if so, whether there was a less discriminatory

16

alternative;

17

2) Appropriate injunctive relief; and

18

3) The process for allocating damages and other individualized relief based upon the

19

issues. 37

20 See, e.g., EEOC v. Dial Corp., Civ. Action No. 99-C-3356, slip op (N.D. Ill. Feb. 14,2003), see

21 Goldsmith Decl.; Beck v. The Boeing Co., 203 F.R.D. 459 (W.D. Wa. 2001), modified by slip op.

22 Dec. 272001, affirmed in part, vacated in part by unpublished decision; Barefield, 1988 WL

23 188433 at *3.

24

A finding of liability to the class mandates an award of lost wages to the class, with no

25

26

36 Plaintiffs propose to sever the race claims of Plaintiffs Page and Dukes.

27

37 A special master can be appointed to handle these individualized issues.

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-Ol-22S2 MJJ

PAGE48

1 separate individual liability detenllinations required. The Fifth Circuit, for example, has stated:

2

Once a court has detenllined that a plaintiff or a complaining class has sustained

economic loss from a discriminatory employment practice, back pay should nomlally be

3

awarded ... Under Title VII the plaintiff class is entitled to compensation for that loss...

4
PetMay v. Am. Cast Iron Pipe Co., 494 F.2d 211,252-53 (5th Cir. 1974) (emphasis added).

5 The lost wages due to the class can be deternlined by formula; the correct fonllula

6 presents another class-wide issue for deten1lination. Such fOlmulaic distributions of back pay

7 have been found particularly useful where, as here, defendant's lack of objective standards or

8 adequate records would make any attempt at reconstructing the career paths of affected

9 employees in order to quantify lost earnings individually a "quagmire of hypothetical

10 judgments." Pettway, 494 F.2d at 261; see also, Domingo v. New England Fish Co., 727 F.2d

11 1429, 1444-45 (9th Cir. 1984); Stewart v. Gen. Motors Corp., 542 F.2d 445,452-53 (7th Cir.

12 1976); Segar v. Smith, 738 F.2d 1249, 1289-91 (D.C. Cir. 1984); EEOC v. 0 & G Spring & Wire

13 Forms Spec. Co., 38 F.3d 872,876 (7th Cir. 1994). Such an approach is similar to that accepted

14 by the Ninth Circuit in Hilao v. Estate ofMarcos, 103 F.3d 767, 782-87 (9th Cir. 1996).

15 Punitive damages may be allocated to individual members of the class proportionate to

16 the amount of lost earnings each woman would receive or by any other rationale means that the

17 Court or jury determines. EEOC v. Dial Corp., Civ. Action No. 99-C-3356 slip op (N.D. Ill.

18 Feb. 14,2003) see Goldsmith Dec!.; Hi/ao, 103 F.3d at 782-87.

19 CONCLUSION

20 Plaintiffs have established all the requirements for certification of this case as a class

21 action. The proposed trial plan provides an efficient and effective means for bringing justice to

22 thousands of women who daily suffer the indignities of pervasive gender discrimination. This

23 Court should, therefore, order certification of this case under Rule 23(b)(2).

24 Dated: April 28, 2003

25 Respectfully submitted,

26

27

~~~~+~;A

28 PLAINTIFFS' MOTION FOR CLASS CERTIFI

Case No. C-Ol-2252 MJJ I

PAGE 49

1

Jocelyn Larkin (SBN 110817)

THE IMPACT FUND

2

125 University Avenue

Berkeley, CA 94710

3

Telephone: (510) 845-3473

Facsimile: (510) 845-3654

4

By: (?ftM ~ t: 4:tb/~r

5

Christine E. Webber, pro hdc vice '=)

COHEN, MILSTEIN, HAUSFELD &

6

TOLL, PLLC

West Tower - Suite 500

7

1100 New York Avenue

Washington, DC 20005-3964

8

Telephone: (202) 408-4600

Facsimile: (202) 408-4699

9
Attorneys for Plaintiffs

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Case No. C-OI-2252 MJJ

PAGE 50

 
 No.04-16688 _____________________

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________

BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, DEBORAH GUNTER, KAREN WILLIAMSON, CHRISTINE KWAPNOSKI, and EDITH ARANA

Plaintiffs/Appellees

v.

WAL-MART STORES, INC.,

_____________________

Defendant/Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA _____________________

OPPOSITION TO PETITION FOR REHEARING EN BANC

_____________________

JOSEPH M. SELLERS CHRISTINE E. WEBBER CHARLES E. TOMPKINS, IV JULIE GOLDSMITH REISER COHEN, MILSTEIN, HAUSFELD & TOLL, PLLC 1100 New York Ave., #500 Washington, D.C. 20005-3964 (202)408-4600

BRAD SELIGMAN Counsel of Record JOCELYN D. LARKIN THE IMPACT FUND 125 University Avenue, Suite 102 Berkeley, CA 94710 (510) 845-3473

Attorneys for Plaintiffs-Appellees Betty Dukes, et al. (Additional Counsel Listed Inside Cover)

IRMA D. HERRERA DEBRA A. SMITH EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250 San Francisco, CA 94103 (415) 621-0672
SHEILA Y. THOMAS 5260 Proctor Avenue Oakland, CA 94618 (510) 339-3739
STEVE STEMERMAN ELIZABETH A. LAWRENCE SARAH VARELA DAVIS, COWELL & BOWE, LLP 595 Market Street, Suite 1400 San Francisco, California 94105 (415) 597-7200

STEPHEN TINKLER CHARLES FIRTH TINKLER & FIRTH 309 Johnson Street Santa Fe, NM 87501 (505) 982-8533
DEBRA GARDNER PUBLIC JUSTICE CENTER 500 East Lexington Street Baltimore, MD 21202 (410) 625-9409
SHAUNA MARSHALL HASTINGS COLLEGE OF THE LAW 200 McAllister Street San Francisco, CA 94102 (415) 565-4685
MERIT BENNETT TALIA KOSH Bennett & Kosh 460 St. Michaels Drive, Suite 703 Santa Fe, NM 87505 (505) 983-9834

TABLE OF CONTENTS Page
I. Introduction.......................................................................................... 1 II. Wal-Mart Fails to Satisfy the Exacting Standards for
En Banc Review .................................................................................. 3 III. The Panel Decision Creates No Intra- Nor Inter-Circuit Conflict
Concerning the Rigor With Which a District Court Must Analyze Rule 23 Criteria ..................................................................... 4 IV. The District Court and the Panel Correctly Applied This Circuit’s Standard for Rule 23(b)(2) Certification ............................ 10 V. Wal-Mart’s Theory That Individualized Hearings Are Mandatory at the Remedies Stage Presents Neither an Intra- Nor Inter-Circuit Conflict ........................................................ 14 VI. Conclusion ......................................................................................... 18
-i-

TABLE OF AUTHORITIES
Page FEDERAL CASES
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ........................................................ 12, 13
Beck v. Boeing, 60 F. App’x 38 (9th Cir. 2003) ........................................... 17
BMW of N. America, Inc. v. Gore, 517 U.S. 559 (1996)............................................................................ 16
Butler v. Home Depot, Inc., Nos. C-94-4335 SI, C-95-2182 SI, 1997 WL 605754, 1997 WL 605754 (N.D. Cal. Aug. 29, 1997)......... 8
Califano v. Yamasaki, 442 U.S. 682 (1979)............................................................................ 15
Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir.1999) .................................................................. 9
Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) ........................................................ 3, 14
Dukes v. Wal-Mart Stores, Inc. (Dukes I), 222 F.R.D. 137 (N.D. Cal. 2004) ................................................ passim
Dukes v. Wal-Mart, Inc. (Dukes II), 222 F.R.D. 189 (N.D. Cal. 2004) ..................................................... 7, 8
Dukes v. Wal-Mart, Inc. (Dukes III), 474 F.3d 1214 (9th Cir. 2007) ..................................................... passim
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).............................................................................. 5
Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976) ................................................................... 14
-ii-

Hameed v. International Association of Bridge, Structural & Ornamental Iron Workers, 637 F.2d 506 (8th Cir. 1980)....................................... 15
Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) ................................................................ 5
Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) .............................................................. 16
Hnot v. Willis Group Holding, -- F.R.D. --, 2007 WL 749675 (S.D.N.Y. 2007) ........................ 5, 7, 10
In re Initial Public Offering Sec. Litigation, 471 F.3d 24 (2d Cir. 2006) ......................................................... 1, 9, 10
In re Visa Check/Mastermoney Antitrust Litig., 280 F.3d 124, 135 (2d Cir. 2001) ......................................................... 6
International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977)............................................................................ 14
Krueger v. N.Y. Telephone Co., 163 F.R.D. 433 (S.D.N.Y. 1995)........................................................ 10
McReynolds v. Sodexho Marriott Services, Inc., 349 F. Supp. 2d 1 (D.D.C. 2004).......................................................... 8
Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) .................................................... 2, 10, 11
Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983) ……………………………………5
Paige v. State of California, 291 F.3d 1141 (9th Cir. 2002) .............................................................. 8
Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261 (5th Cir. 1975) ...................................................... 15
-iii-

Pettway v. American Cast Iron Pipe Co. (Pettway V), 681 F.2d 1259 (11th Cir. 1982) .......................................................... 15
Phillip Morris USA v. Williams, 127 S. Ct. 1057 (2007)........................................................................ 16
Pitre v. Western Electric Co., 843 F.2d 1262 (10th Cir. 1988) .......................................................... 15
Robinson v. Metropolitan-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) ............................................................... 13
Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984).......................................................... 15
Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993) .............................................................. 15
State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003)............................................................................ 16
Staton v. Boeing, 327 F.3d 938 (9th Cir. 2003) ............................................................ 4, 5
Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976) .............................................................. 15
Thiessen v. General Electric Capital Corp., 267 F.3d 1095 (10th Cir. 2001) ............................................................ 5
FEDERAL RULES 9th Cir. R. 35-1 ............................................................................................... 4
Fed. R. App. P. 35(a) ............................................................................ 1, 3, 11
Fed. R. Civ. P. 23………………………………………………….. ….passim
-iv-

I. Introduction En banc review is reserved for the rarest of cases in which a genuine
intra-circuit conflict demands the attention of the full court. While this case is undeniably noteworthy for its size and for the broad reach of Wal-Mart’s discriminatory practices, these factors do not substitute for the showing that Federal Rule of Appellate Procedure 35 demands. Because the panel decision rests squarely on the well-established law of this circuit, en banc review should be denied.
First, the panel’s decision in Dukes is consistent with this circuit’s standards for the rigorous analysis of Rule 23 requirements. The district court conducted a searching evaluation of the enormous factual and legal record presented at class certification and determined that each element of Rule 23 is satisfied. The panel, in turn, concluded that the district court properly exercised its discretion in granting in part, and denying in part, certification of the proposed class.
Wal-Mart claims that Dukes is at odds with the recent decision in In re Initial Public Offering Securities Litigation, 471 F.3d 24 (2d Cir. 2006), in which the Second Circuit reaffirmed that a district court must rigorously analyze Rule 23 criteria, even if the certification inquiry overlaps with the merits. Wal-Mart’s claim of an inter-circuit conflict rests on its assertion
1

that the Dukes panel improperly condoned a refusal by the district court to weigh evidence and resolve factual disputes relevant to Rule 23 issues whenever those issues overlapped with the merits. That assertion is wrong. The district court’s 84-page opinion thoroughly examined an extensive factual record including evidence also relevant to the merits issues. The district made factual findings relevant to the Rule 23 inquiry, many about the competing expert testimony, even when the evidence overlapped with the merits.
Second, the panel broke no new legal ground when it held the certification under Rule 23(b)(2) was proper. The district court scrupulously followed the standard established in Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003). Wal-Mart’s contention that the panel reduced the Molski analysis to mere dogmatic acceptance of the named plaintiffs’ declarations does not withstand scrutiny. While Wal-Mart asserts a pre-existing circuit split on this issue, the cases that it cites involved claims for compensatory damages, a remedy not sought in this case. Thus, even if the full court wished to revisit Molski, this case is an inappropriate vehicle to do so.
Third, the panel properly rejected Wal-Mart’s theory that it must be permitted to defend the claims of each class member at individual hearings. Wal-Mart can cite neither an intra- nor inter-circuit conflict on this issue
2

because no court has ever accepted this radical notion. The panel correctly declined Wal-Mart’s invitation to be the first, as its adoption would have the effect of eliminating Title VII class actions in all but the smallest cases. Seven circuits, including this one, have held that courts may use statistical methods to determine individual remedies in a Title VII class action. See Domingo v. New England Fish Co., 727 F.2d 1429, 1444-45 (9th Cir. 1984) and cases cited at n.9, infra. There is, moreover, no risk that a punitive damage award would violate Wal-Mart’s due process rights because the district court’s trial plan imposed significant procedural safeguards, protections that Wal-Mart neither acknowledges nor challenges.
There is, therefore, no basis for en banc review. Wal-Mart’s female workers, having waited nearly six years, should be allowed their day in court without further delay. II. Wal-Mart Fails to Satisfy the Exacting Standards for En Banc
Review The standard for en banc review is exceptionally high. This Court grants rehearing en banc only when the panel’s opinion creates an intracircuit conflict or “the proceeding involves a question of exceptional importance.” Fed. R. App. P. 35(a). Under circuit rules, an inter-circuit conflict will not be sufficient to warrant en banc review unless the petitioner can demonstrate that the conflict “substantially affects a rule of national
3

application in which there is an overriding need for national uniformity.” 9th Cir. R. 35-1. Wal-Mart has not met these exacting standards for en banc review.
Furthermore, this appeal is from a class certification order and, thus, only subject to reversal for an “abuse of discretion.” Staton v. Boeing, 327 F.3d 938, 953 (9th Cir. 2003). The panel conducted a thorough review of the heavily fact-based lower court decision. Wal-Mart has received the benefit of a discretionary interlocutory appeal, despite the disruption and lengthy delay it entailed, and no further review from this Court is warranted. III. The Panel Decision Creates No Intra- Nor Inter-Circuit Conflict
Concerning the Rigor with Which a District Court Must Analyze Rule 23 Criteria Wal-Mart entreats this Court to resolve what it claims is an intracircuit and inter-circuit conflict concerning the “rigor” with which a district court must determine whether the record satisfies Rule 23. The crux of its argument is that, contrary to decisions in this and other circuits, the panel endorsed the district court’s refusal to resolve any factual dispute at class certification that overlapped with the merits. Petition at 2, 5. The argument is without merit. First, the standard that the panel opinion applied comports with the law in this Circuit. The Ninth Circuit holds that “[a]lthough some inquiry
4

into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage.” Staton, 327 F.3d at 954 (quoting Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir. 1983)); see Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974). In conducting the Rule 23 inquiry, the district court is nonetheless “at liberty to consider evidence which goes to the requirements of Rule 23 even though the evidence may also relate to the underlying merits of the case.” Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992).1
These cases recognize the fundamental difference between the class certification and merits inquiries, a distinction that Wal-Mart attempts to blur. The role of the court at class certification is to determine whether the requirements of Rule 23 have been met, not to adjudicate the underlying merits.2 The language of Rule 23(a)(2) requires the court to ascertain whether there exist questions of law or fact common to the class, not to answer those questions. See Hnot v. Willis Group Holding, -- F.R.D. --,
1 The panel decision is consistent with Hanon, which held that the defense of non-reliance is a merits issues that “is not a basis” for denial of class certification, citing Eisen. Hanon, 976 F.2d at 509. 2 Such merits determinations at class certification would violate the parties’ jury trial rights. See Thiessen v. Gen. Elec. Capital Corp., 267 F.3d 1095, 1106-07 (10th Cir. 2001).
5

2007 WL 749675, *6 (S.D.N.Y. 2007). As the Dukes panel correctly noted:
“[O]ur job on this appeal is to resolve whether the ‘evidence is sufficient to
demonstrate common questions of fact warranting certification of the
proposed class, not whether the evidence ultimately will be persuasive’ to
the trier of fact.” Dukes v. Wal-Mart, Inc. (Dukes III), 474 F.3d 1214, 1229
(9th Cir. 2007) (quoting In re Visa Check/Mastermoney Antitrust Litig., 280
F.3d 124, 135 (2d Cir. 2001)). The panel decision, thus, hewed precisely to
the Rule 23 law in this Circuit.
Second, the factual predicate for Wal-Mart’s argument is
demonstrably false. Neither the district court nor the panel shied away from
making factual findings relevant to Rule 23 requirements merely because
they overlapped with the merits. The district court reviewed merits evidence
and made many factual findings that overlapped with the merits. Indeed, the
panel cited the lower court’s findings:
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 corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.
6

Dukes III, 474 F.3d at 1225 (quoting Dukes v. Wal-Mart Stores, Inc. (Dukes I), 222 F.R.D. 137, 166 (N.D. Cal. 2004)). These findings indisputably overlap with the ultimate merits question—whether Wal-Mart engaged in a pattern or practice of discrimination. Wal-Mart’s petition fails to cite these critical factual findings to this Court.
Moreover, consideration of overlapping certification and merits issues extended to the expert evidence. The district court considered Daubert motions filed by both sides and thoroughly evaluated the statistical evidence in eighteen pages of findings on those motions. See Dukes v. Wal-Mart, Inc. (Dukes II), 222 F.R.D. 189 (N.D. Cal. 2004). In the class certification order, the district court painstakingly parsed the expert analyses from both sides, before concluding that commonality had been established. Dukes I, 222 F.R.D. at 149-66.
To obtain reversal of the district court’s certification order, Wal-Mart must show that the court actually failed to make a factual finding on an issue necessary to the Rule 23 determination, not merely some theoretical dispute about the applicable standard. See Hnot, 2007 WL 749675 at *4-6. The only example Wal-Mart cites involves the extent to which statistical analyses should be aggregated. Plaintiffs’ expert offered regression analyses to show a common pattern of pay disparities across the 41 regions, while Wal-Mart
7

relied on over 7500 separate sub-store regressions. The panel properly
rejected Wal-Mart’s assertion that, as a matter of law, its disaggregated
approach should be adopted. Paige v. State of California, 291 F.3d 1141,
1149 (9th Cir. 2002). Instead, the proper level of aggregation “depends
largely on the similarity of the employment practices and the interchange of
employees at the various facilities”—a factual question. Dukes III, 474 F.3d at 1228.3
Both the district court and the panel carefully analyzed the factual
foundation for each expert’s approach to aggregation. As the panel noted,
plaintiffs’ analysis was grounded in numerous Wal-Mart policies about which the district court had already made factual findings.4 In contrast, the
factual rationale for Wal-Mart’s disaggregated sub-store analyses was a store
manager survey that was stricken from the record. Id. at 1229-30; Dukes II,
3 Wal-Mart wrongly implies that aggregated statistics may not be used to challenge the delegation of subjective decision-making authority to local decision-makers. Petition at 6. See, e.g., McReynolds v. Sodexho Marriott Servs., Inc., 349 F. Supp. 2d 1, 14-17 (D.D.C. 2004); Butler v. Home Depot, Inc., Nos. C-94-4335 SI, C-95-2182 SI, 1997 WL 605754 (N.D. Cal. Aug. 29, 1997). 4 The panel cited: “(1) the effect of district, regional, and company-wide control over Wal-Mart’s uniform compensation policies and procedures; (2) the dissemination of Wal-Mart’s uniform compensation policies and procedures resulting from the frequent movement of store managers; and (3) Wal-Mart’s strong corporate culture.” Dukes III, 474 F.3d at 1228-29.
8

222 F.R.D. at 198 (disallowing use of discredited survey to attack plaintiffs’ expert or to support disaggregated analysis).
Wal-Mart asserts that the recent decision in In re Initial Public Offering Securities Litigation (IPO), 471 F.3d 24 (2d Cir. 2007), creates an inter-circuit split with Dukes. In IPO, the district court had required the plaintiffs to make only “some showing” of compliance with Rule 23, and credited plaintiffs’ expert testimony so long as it was not “fatally flawed.” The Second Circuit rejected this analysis:
[O]ur conclusions necessarily preclude the use of a “some showing” standard, and to whatever extent Caridad [v. MetroNorth Commuter R.R., 191 F.3d 283 (2d Cir.1999)], might have implied such a standard for a Rule 23 requirement, that implication is disavowed. Second, we also disavow the suggestion in Visa Check that an expert’s testimony may establish a component of a Rule 23 requirement simply by being not fatally flawed. Id. at 42. Neither the district court nor the panel decision in Dukes endorsed or applied the lax “some showing” standard, nor did either permit expert testimony to satisfy Rule 23 as long as it was not “fatally flawed.” Thus, IPO creates no conflict with Dukes.
Wal-Mart’s inter-circuit conflict claim rests instead on the panel’s citation to general language from the VisaCheck and Caridad decisions, in which courts were counseled to “avoid the battle of the experts” at class
9

certification. IPO, however, did nothing more than clarify that courts could examine expert analyses as necessary to determine commonality.5 It did not, as Wal-Mart argues, mandate that the district court select which expert’s analyses is more persuasive. See Hnot, 2007 WL 749675 at *6 (“IPO does not stand for the proposition that the Court should, or is even authorized to, determine which of the parties’ expert reports is more persuasive.”). In short, while a district court must address the certification requirements, it “should not assess any aspect of the merits unrelated to a Rule 23 requirement.” IPO, 471 F.3d at 41.
IV. The District Court and the Panel Correctly Applied this Circuit’s Standard for Rule 23(b)(2) Certification This Court’s decision in Molski v. Gleich established the standards for
Rule 23(b)(2) certification for cases in which plaintiffs seek both injunctive and monetary relief on behalf of the putative class. 318 F.3d 937 (9th Cir. 2003). Molski requires that, in determining whether injunctive relief predominates over monetary relief, the district court examine the “specific facts and circumstances of each case” and “focus[] on the language of Rule
5 IPO cited favorably to the decision in Krueger v. N.Y. Tel. Co., 163 F.R.D. 433, 440 (S.D.N.Y. 1995), in which the court properly noted that “the experts’ disagreement on the merits—whether discriminatory impact could be shown—was not a valid basis for denying class certification.” IPO, 471 F.3d at 35 (emphasis added).
10

23(b)(2) and the intent of the plaintiffs in bringing the suit.” Id. at 950. The opinions in Dukes follow Molski to the letter.
Wal-Mart devotes only one sentence of its petition to explaining its contention that Dukes creates an intra-circuit split with Molski, even though this showing is a prerequisite for en banc review. Petition at 12. It asserts that Dukes adopted a test that “would make every class case certifiable under Rule 23(b)(2) if the plaintiff is willing to sign an affidavit attesting to the importance of injunctive relief.” Id. Its cynical reading of Dukes does not satisfy Federal Rule of Appellate Procedure 35.
Neither the district court nor the panel relied exclusively or uncritically on the declarations of the plaintiffs about their motivation in bringing the case.6 The district court’s Rule 23(b)(2) analysis carefully evaluated the specific nature of the injunctive relief sought and what it would achieve for the class:
Plaintiffs’ claims for injunctive and declaratory relief, if successful, would achieve very significant long-term relief in the form of fundamental changes to the manner in which WalMart makes its pay and promotions decisions nationwide that would benefit not only current class members, but all future female employees as well.
6 While Wal-Mart faults the district court for accepting the statements of the plaintiffs, it offered no evidence below to contradict or question the sincerity of plaintiffs’ explicitly declared goals. See Dukes III, 474 F.3d at 1235 n.12.
11

Dukes I, 222 F.R.D. at 171. In addition, the district court considered the types and amount of monetary relief sought. Plaintiffs’ decision to forego compensatory damages but seek punitive damages further supported a finding that injunctive relief was the primary goal of the litigation.7 Id. Contrary to Wal-Mart’s assertion, the district court specifically considered the impact of punitive damages on class cohesiveness and homogeneity. Id. at 171-72.
Like the district court, the panel carefully considered the range of factors articulated by Molski and the language of Rule 23 in determining whether 23 (b)(2) was satisfied. Dukes III, 474 F.3d at 1234-37.8 The panel thoroughly reviewed Wal-Mart’s other arguments about the claims seeking injunctive and monetary relief. There is, thus, no basis for Wal-Mart’s intracircuit conflict claim.
7 The district court and the panel correctly rejected Wal-Mart’s assertion that the potential amount of a punitive damage award makes monetary relief predominate, which would effectively preclude class treatment for the largest or most pernicious violators of Title VII. Dukes III, 474 F.3d at 1235-36; Dukes I, 222 F.R.D. at 171. 8 Wal-Mart’s claim that Dukes departs from the Second Circuit’s standard in Robinson v. Metro-North is inaccurate. Petition at 10. The panel considered the plaintiffs’ subjective intent and evaluated those expressions of intent against an objective standard, concluding that the plaintiffs’ expressed intent was grounded in “logic.” Dukes III, 474 F.3d at 1235.
12

Wal-Mart instead devotes the lion’s share of its argument to the contention that the Rule 23(b)(2) analysis used in this circuit is different from that used in circuits that have adopted the Allison test. See Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998). An inter-circuit split alone does not satisfy Rule 35. See Section II. Nor did Molski create the circuit split, as the split began with conflicting decisions from the Second and Fifth Circuits. The Molski court carefully analyzed and correctly rejected Allison. “[A]doption of a bright-line rule . . . would nullify the discretion vested in the district courts through Rule 23 . . . [and] holds troubling implications for the viability of future civil rights class actions.” Molski, 318 F.3d at 950; see Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 163-64 (2d Cir. 2001); Allison, 151 F.3d at 430-31 (Dennis, J., dissenting).
Regardless, Dukes is not an appropriate case with which to revisit Molski because, unlike Allison and Molski, it does not include a claim for compensatory damages. Because compensatory damages serve a different purpose (compensating class members) from punitive damages (deterring the defendant), the analysis of Rule 23(b)(2) predominance differs in cases addressing one or the other alone.
13

V. Wal-Mart’s Theory that Individualized Hearings Are Mandatory at the Remedies Stage Presents Neither an Intra- nor InterCircuit Conflict Wal-Mart contends that Title VII and due process mandate that the
district court conduct individual remedies hearings for each class member. There is no intra- or inter-circuit conflict on this point, as there is no appellate authority that has ever accepted this radical theory.
In International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), the Supreme Court articulated the standards for bifurcated litigation of Title VII “pattern or practice” cases. Teamsters noted that, after a liability determination, “additional proceedings” will “usually” be conducted. Id. at 361. The district court and the panel correctly rejected Wal-Mart’s theory that this language must be read to require individualized hearings in every case. Dukes III, 474 F.3d at 1238-39; Dukes I, 222 F.R.D. at 174. Wal-Mart’s interpretation is squarely at odds with language in Teamsters that vested district courts with broad discretion to “fashion such relief as the particular circumstances of a case may require to effect restitution.” Teamsters, 431 U.S. at 364 (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976)).
The Ninth Circuit and six other circuits have concluded that individual remedies hearings may be inappropriate when the employer’s practices make
14

it “difficult to determine precisely which of the claimants would have been
[in a more favorable position] absent discrimination, but it is clear that many
should have.” Domingo v. New England Fish Co., 727 F.2d 1429, 1444-45 (9th Cir. 1984).9 Where the employer’s system has been infected with
subjective decision-making and the employer lacks records to justify
employment decisions, as has occurred here, courts have concluded that
allocating relief based upon statistical analyses is more appropriate than a
“quagmire of hypothetical judgments.” Id. at 1444 (quoting Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261 (5th Cir. 1975)).10
Wal-Mart’s claim that sections of Title VII added in 1991 to expand
the remedies available to victims of discrimination, in fact, overruled sub
silencio 25 years of Title VII class action jurisprudence is equally far-
fetched. Nothing in the 1991 Civil Rights Act indicates that the new “mixed
motive” provision or the “person aggrieved” punitive damages language was
9 See Shipes v. Trinity Indus., 987 F.2d 311, 318 (5th Cir. 1993); Pitre v. W. Elec. Co., 843 F.2d 1262, 1274 (10th Cir. 1988); Hameed v. Int=l Ass=n of Bridge, 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); Pettway v. Am. Cast Iron Pipe Co. (Pettway V), 681 F.2d 1259, 1266 (11th Cir. 1982); Segar v. Smith, 738 F.2d 1249, 1289-91 (D.C. Cir. 1984). 10 The district court tailored its certification order to the unique facts presented by the evidence and, thus, denied certification for promotion monetary claims that could not be proven by reference to objective evidence. Dukes III, 474 F.3d at 1243-44.
15

intended to limit the use of class actions or require that remedies be determined on an individual basis. Dukes III, 474 F.3d at 1241; cf. Califano v. Yamasaki, 442 U.S. 682, 698-701 (1979). Wal-Mart cites no authority, either within or outside this Circuit, to support its request for en banc review on this basis.
Finally, Wal-Mart advances the novel proposition that an award of class punitive damages, without individualized hearings, would violate due process because it would punish legal conduct and award damages to nonvictims. The Supreme Court cases upon which it relies involved punitive damages awarded to individuals based on defendants’ conduct toward different victims not before the court and, in some cases, subject to different legal standards. See Phillip Morris USA v. Williams, 127 S. Ct. 1057 (2007); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). Here, plaintiffs seek an award to the class based on Wal-Mart’s conduct toward the class, whom Title VII uniformly protects. This Court has approved the award of punitive damages to a class. See Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996).
Moreover, Wal-Mart ignores the most critical elements of the due process analysis endorsed by the district court and the panel. First, the
16

district court stated that it would limit any award of punitive damages to “evidence of conduct that was directed toward the class.” Dukes I, 222 F.R.D. at 172; see also Dukes III, 474 F.3d at 1242. Second, only “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” will be eligible for a share of punitive damages. Dukes I, 222 F.R.D. at 172. Third, the allocation of punitive damages to individual class members will be “in reasonable proportion to individual lost pay awards.” Id.11 Finally, the district court ordered that notice and an opportunity to opt out will be provided to class members, should any of them wish to pursue a claim of punitive damages on their own. Id. at 173.
Not only do these safeguards fully protect the parties’ rights to due process, they serve to highlight why it is inappropriate to address this issue at this juncture.12 Without the benefit of a full trial record, this Court lacks the requisite information to evaluate whether a punitive damages award in this case—if there ever is such an award—comports with due process.
11 These safeguards directly address and satisfy the concerns raised in this Court’s decision in Beck v. Boeing, 60 F. App’x 38 (9th Cir. 2003). 12 Importantly, the Supreme Court opinions addressing due process and punitive damages have all followed trial and the actual, rather than hypothetical, award of a specific amount of damages. If plaintiffs prevail and are awarded punitive damages, Wal-Mart will have the opportunity to challenge such an award on a full record.
17

VI. Conclusion
Wal-Mart is not entitled to en banc review by virtue of its size, or its
net worth, or the historic nature of this case. Like all litigants, Wal-Mart
must meet this Court’s exacting standards for en banc review. It has failed
to identify a genuine intra-circuit conflict or any issue of exceptional
national importance. Accordingly, its petition should be denied.
Respectfully submitted.
__________________________ BRAD SELIGMAN
Counsel of Record JOCELYN D. LARKIN THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 (510) 845-3473
JOSEPH M. SELLERS CHRISTINE E. WEBBER CHARLES E. TOMPKINS, IV JULIE GOLDSMITH REISER COHEN, MILSTEIN, HAUSFELD &
TOLL, PLLC 1100 New York Ave., #500 Washington, D.C. 20005-3964 (202) 408-4600
March 15, 2007
18

CERTIFICATE OF COMPLIANCE PURSUANT TO CIRCUIT RULES 35-4 AND 40-1
I certify that pursuant to Circuit Rules 35-4 and 40-1, the attached opposition to petition for rehearing en banc is proportionally spaced, has a typeface of 14 points and contains 4,001 words.
__________________________________________ JOCELYN D. LARKIN THE IMPACT FUND 125 University Avenue Berkeley, CA 94710

PROOF OF SERVICE
I hereby certify that on this 15th day of March, 2007, I caused two copies of the foregoing opposition to petition for rehearing en banc to be served by overnight commercial carrier on:

Paul Grossman Nancy L. Abell PAUL, HASTINGS, JANOFSKY & WALKER LLP 515 South Flower Street Los Angeles, California 90071 (213) 683-6000

Theodore J. Boutrous, Jr. Gail E. Lees GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071

Mark A. Perry Amanda M. Rose GIBSON, DUNN & CRUTCHER, LLP One Montgomery Street San Francisco, California 94104 (415) 393-8200

Rae T. Vann McGUINESS NORRIS & WILLIANS, LLP 1015 Fifteenth Street, NW, Suite 1200 Washington, DC 20005 (202) 789-8600

Robin S. Conrad Shane Brennan NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, NW Washington, DC 20062 (202) 463-5337

John H. Beisner Evelyn L. Becker O’MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 20006 (202) 383-5300

W. Stephen Cannon Raymond C. Fay Laura C. Fentonmiller Constantine Cannon, LLP 1627 I Street, NW, Suite 1000 Washington, DC 20006 (202) 204-3500

Richard L. Berckman James M. Beck Jason Murtagh Deschert, LLP Cira Centre 2929 Arch Street Philadelphia, Pennsylvania 19104-2808 (215) 994-4000

Jennifer L. Brown Shook, Hardy & Bacon, LLP 333 Bush Street, Suite 600 San Francisco, California 94104-2828 (415) 544-1900

Richard Krisher LATHAM & WATKINS, LLP 633 West fifth Street, Suite 4000 Los Angeles, California 90071 (213) 485-1234

Daniel J, Popeo Richard Samp Washington Legal Foundation 2009 Massachusetts Avenue, NW Washington, DC 20037 (202) 588-0302

Maureen K. Bogue 50 Beale Street P.O. Box 3965 San Francisco, California 94105-1895 (415) 768-5793

_______________________________ Christine E. Webber COHEN, MILSTEIN, HAUSFELD &
TOLL, PLLC 1100 New York Ave., #500 Washington, D.C. 20005-3964 (202)408-4600

 
 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

222 F.R.D. 137 United States District Court,
N.D. California.
Betty DUKES, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine
Kwapnoski, and Edith Arana, on behalf of themselves and all others similarly situated,
Plaintiffs, v.
WAL–MART STORES, INC., Defendant.
No. C01–02252 MJJ. | June 21, 2004.

Rights Advocates, San Francisco, CA, Elizabeth Lawrence, Steve Stemerman, Davis, Cowell & Bowe, San Francisco, CA, Merit Bennett, Santa Fe, NM, Stephen Tinkler, Tinkler & Bennett, Santa Fe, NM, Sheila Thomas, Equal Rights Advocates, Oakland, CA, for Plaintiffs.
Nancy L. Abell, Katherine C. Huibonhoa, Paul, Hastings, Janofsky & Walker, LLP, Los Angeles, CA, Barbara L. Johnson, Neal D. Mollen, Paul, Hastings, Janofsky & Walker, LLP, Washington, DC, for Defendant.
Opinion

Attorneys and Law Firms

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR CLASS CERTIFICATION

*139 Charles V. Firth, Tinkler & Firth, Santa Fe, NM,

Christine E. Webber, Deborah Vagins, Joseph Sellers, Cohen, Milstein, Hausefeld & Toll, Washington, DC,

JENKINS, District Judge.

Debra Gardner, Jonathan Smith, Public Justice Center,

Baltimore, *140 MD, Shauna Marshall, Hastings College of Law, San Francisco, CA, Brad Seligman, Jocelyn D.

	  

Larkin, The Impact Fund, Berkeley, CA, Doris Ng, Equal

TABLE	  OF	  CONTENTS	  

	  	  

	  

	.  ...............................................................................................................................................................................................................................................................	  

	  	  

	  

	  

INTRODUCTION	 . .......................................................................................................................................................................................	  ..............	1   41	  

	  	  

	  	  

	  

	  

	.  ......................................................................................................................................................................................................................................	  

	  

	  	  

	  

LEGAL	  STANDARD	.  ...................................................................................................................................................................................	  ..............	1   43	  

	  	  

	  	  

	  

	  

	.  ......................................................................................................................................................................................................................................	  

	  

	  	  

	  

ANALYSIS	 .  ..........................................................................................................................................................................................................	  ..............	1   44	  

	  	  

	  	  

	  

	  

1

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

	  

	.  ..........................................................................................................................................................................................................................	  

	  

	  	  

	  

I.	  Rule	  23(a)	  Factors	.  ......................................................................................................................................................................	  ..............	1   44	  

	  	  	  	  

	  	  

	  	  

	  

	  

	   A.	   Numerosity	.  ...........................................................................................................................................................................	 	 .  .............	 1  44	  

	  	   	  	  

	  	  

	   	  

	  

	   B.	   Commonality	 .  ......................................................................................................................................................................	 	 .  .............	 1  44	  

	  	   	  	  

	  	  

	   	  

	  

	  
	  	  

1.	   Company–Wide	  Policies	  and	  Practices	.  .....................................................................................................................................................................	 . .......................	 1  45	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   a.	   Policies	  and	  Practices	  Governing	  Compensation	  and	  Promotion	.  ......................................................................	 . .......................	 1  45	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (1)	   Overview	  of	  Wal–Mart	  Store	  Structure	 . .................................................................................................................................	 . ......................	 1  45	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   (2)	   Policies	  Governing	  Compensation	 . ...............................................................................................................................................	 . ......................	 1  46	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   	   (a)	   Hourly	  Employees	 . ............................................................................................................................................................................	 . ......................	 1  46	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   	   (b)	   Salaried	  Employees	 . ........................................................................................................................................................................	 . ......................	 1  47	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (3)	   Policies	  Governing	  Promotion	  Decisions	 . ...........................................................................................................................	 . ......................	 1  48	  

	  	   	  	  

	  	  

	   	  

	  

2

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

	  

	  	   	   	   	   (a)	   Subjectivity	  in	  the	  Selection	  Practice	.  .....................................................................................................................	 . ......................	 1  48	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   	   (b)	   Failure	  to	  Post	  Promotional	  Opportunities	.  ...................................................................................................	 . ......................	 1  49	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (4)	   Whether	  Defendant’s	  Compensation	  and	  Promotion	  Policies	  Support	  a	  Finding	  of	  

	  	   Commonality	 . .............................................................................................................................................................................................................	 . ......................	 1  49	  

	   	  	  

	  	  

	  

	  

	  

	  	   	   b.	   Corporate	  Culture	.  ................................................................................................................................................................................................................	 . .......................	 1  51	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (1)	   Wal–Mart’s	  Emphasis	  on	  Uniform	  Culture	. . .......................................................................................................................	 . ......................	 1  51	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   (2)	   Gender	  Stereotyping	.  .......................................................................................................................................................................................	 . ......................	 1  53	  

	  	   	  	  

	  	  

	   	  

	  

	  
	  	  

2.	   Statistical	  Evidence	  of	  Discrimination	 . ......................................................................................................................................................................	 . .......................	 1  54	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   a.	   Statistical	  Evidence	  Regarding	  Compensation	.  .............................................................................................................................	 . .......................	 1  55	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (1)	   Overview	.  .........................................................................................................................................................................................................................	 . ......................	 1  55	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   (2)	   Defendant’s	  Challenges	  to	  Plaintiffs’	  Statistical	  Analysis	.  .............................................................................	 . ......................	 1  56	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   	   (a)	   Aggregation	  at	  the	  Regional	  Level	.  ..............................................................................................................................	 . ......................	 1  56	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   	   (b)	   Selection	  of	  Variables	 . ..................................................................................................................................................................	 . ......................	 1  59	  

3

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   b.	   Statistical	  Evidence	  Regarding	  Promotions	.  .....................................................................................................................................	 . .......................	 1  60	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (1)	   Internal	  Data	  Analysis	.  ..................................................................................................................................................................................	 . ......................	 1  60	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   	   (a)	   Overview	.  .......................................................................................................................................................................................................	 . ......................	 1  60	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   	   (b)	   Defendant’s	  Challenge	  to	  Dr.	  Drogin’s	  Choice	  of	  Applicant	  Pools.....................................	 . ......................	 1  61	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (2)	   External	  Benchmarking	  Data	  Analysis	 . ..................................................................................................................................	 . ......................	 1  64	  

	  	   	  	  

	  	  

	   	  

	  

	  
	  	  
	   	  

3.	   Anecdotal	  Evidence	  of	  Discrimination	.  ......................................................................................................................................................................	 . .......................	 1  65	  

	  	   	  	  

	  	  

	   	  

	  

4.	   Conclusion	  re	  Commonality	 . ....................................................................................................................................................................................................	 . .......................	 1  66	  

	  	   	  	  

	  	  

	   	  

	  

	  

	   C.	   Typicality	.  ................................................................................................................................................................................	 	 .  .............	 1  66	  

	  	   	  	  

	  	  

	   	  

	  

	  
	  	  
	   	  

1.	   Whether	  the	  Named	  Plaintiffs	  Can	  Represent	  All	  In–Store	  Managers	.  ...........................................................................	 . .......................	 1  66	  

	  	   	  	  

	  	  

	   	  

	  

2.	   Degree	  of	  Individual	  Specificity	  for	  Each	  Claim	.  ............................................................................................................................................	 . .......................	 1  67	  

	  	   	  	  

	  	  

	   	  

	  

	  
4

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

	   D.	   Adequacy	  of	  Representation	.  .............................................................................................................................	 	.   .............	 1  68	  

	  	   	  	  

	  	  

	   	  

	  

	  
	  	  
	   	  

1.	   Conflicts	  of	  Interest	.  .............................................................................................................................................................................................................................	 . .......................	 1  68	  

	  	   	  	  

	  	  

	   	  

	  

2.	   Qualified	  Counsel	.  ...................................................................................................................................................................................................................................	 . .......................	 1  69	  

	  	   	  	  

	  	  

	   	  

	  

	  

	   E.	   Conclusion	.  .............................................................................................................................................................................	 	 .  .............	 1  69	  

	  	   	  	  

	  	  

	   	  

	  

	  

	.  ..........................................................................................................................................................................................................................	  

	  

	  	  

	  

II.	  Maintainability	  Under	  Rule	  23(b)	 . ............................................................................................................................	 .  .............	1   69	  

	  	   	  	  

	  	  

	   	  

	  

	  

	   A.	   Inclusion	  of	  Claim	  for	  Punitive	  Damages	 . ............................................................................................	 	.   .............	 1  70	  

	  	   	  	  

	  	  

	   	  

	  

	   B.	   Manageability	  of	  Liability	  and	  Remedy	  Stages	.  .............................................................................	 	.   .............	 1  73	  

	  	   	  	  

	  	  

	   	  

	  

	  
	  	  
	   	  

1.	   Manageability	  of	  Liability	  Stage	.  .........................................................................................................................................................................................	 . .......................	 1  73	  

	  	   	  	  

	  	  

	   	  

	  

2.	   Manageability	  of	  Remedy	  Phase	.  ........................................................................................................................................................................................	 . .......................	 1  74	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   a.	   Promotions	  Claim	.  ................................................................................................................................................................................................................		 .   .......................	 1  75	  

	  	   	  	  

	  	  

	   	  

	  

5

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

	  

	  	   	   	   (1)	   Overview	  of	  Traditional	  and	  Formula	  Approach	  to	  Backpay	  Remedy	.  .......................................	 . ......................	 1  75	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   (2)	   Application	  of	  Class–Wide	  Formula	  Approach	.  ............................................................................................................	 . ......................	 1  78	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   	   (a)	   Using	  a	  Formula	  to	  Calculate	  a	  Lump	  Sum	  Backpay	  Award	.  .....................................................	 . ......................	 1  78	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   	   (b)	   Determining	  Individual	  Eligibility	.  .............................................................................................................................	 . ......................	 1  79	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   b.	   Equal	  Pay	  Claim	.  ......................................................................................................................................................................................................................	 . .......................	 1  83	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   	   (1)	   Identification	  of	  victimized	  class	  members	. . ....................................................................................................................	 . ......................	 1  83	  

	  	   	  	  

	  	  

	   	  

	  

	   	   	   	   (2)	   Calculation	  of	  individual	  backpay	  awards	.  ........................................................................................................................	 . ......................	 1  85	  

	  	   	  	  

	  	  

	   	  

	  

	  

	  	   	   c.	   The	  1991	  Civil	  Rights	  Act	.  ...........................................................................................................................................................................................	 . .......................	 1  86	  

	  	   	  	  

	  	  

	   	  

	  

	  

	 .  ....................................................................................................................................................................................................................................	  

	  

	  	  

	  

CONCLUSION	 . .................................................................................................................................................................................................	  ..............	1   87	  

	  	  

	  	  

	  

	  

*141 INTRODUCTION
Plaintiffs have filed a Third Amended Complaint, brought on behalf of six named plaintiffs and all others similarly

situated, asserting a claim against Wal–Mart Stores, Inc. (“Wal–Mart”) for sex discrimination under Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”). Generally stated, plaintiffs allege that women employed in Wal–Mart stores (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority; and (2) receive
6

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

fewer promotions to in-store management positions than do men, and those who are promoted must wait longer than their male counterparts to advance.
Plaintiffs assert that the policies and practices underlying this discriminatory treatment are consistent throughout Wal–Mart, and that the discrimination of which they complain 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 compensatory damages on behalf of the class.
Wal–Mart is the largest private employer in the world. See Defendant’s Opposition to Motion for Class Certification (“Def.’s Opp’n”) at 1. It operates approximately 3,400 stores in the United States and currently employs well over a million people. See Declaration of Christine Webber (“Webber Decl.”) Ex. 70 at 3–5, 12. Wal–Mart is best known for its “Discount Stores,” which offer a wide variety of discounted goods and services, and “Supercenters,” which are similar to Discount Stores but also include full grocery departments. The company also operates “Sam’s Clubs,” which are membership-only stores that sell items in bulk or at deep discounts, and “Neighborhood Markets,” which are smaller stores primarily selling food and drugs.1

1

At the time this motion was briefed, Wal–Mart

operated 1,568 Discount Stores nation-wide, each of

which employed at least 150 individuals; 1,259

Supercenters (making Wal–Mart the nation’s largest

grocer), with 200 to 500 employees per store; 525

Sam’s Clubs, with 120 to 225 employees per store; and

49 Neighborhood Markets, with 80 to 100 employees

per store. Webber Decl., Ex. 70 at 3–5; Def.’s Opp’n at

13.

Currently before the Court is Plaintiffs’ motion to certify a nation-wide class of women who have been subjected to Wal–Mart’s allegedly discriminatory pay and promotions policies.2 Specifically, plaintiffs propose that the Court certify the following class pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(2):

2

Also before the Court are various motions to strike

submitted by both parties. The Court rules on these

motions separately in its Order Granting in Part and

Denying in Part Plaintiffs’ and Defendant’s Motions to

Strike Expert and Non-expert Testimony (“Order re

Motions to Strike”), filed concurrently with the present

order.

All women employed at any Wal–Mart domestic retail store at any time since December *142 26, 1998 who

have been or may be subjected to Wal–Mart’s challenged pay and management track promotions policies and practices. Plaintiffs’ Motion for Class Certification (“Pls.’ Mot.”) at 37.3 In preparation for this motion, the parties undertook extensive discovery. They also filed extensive briefing along with volumes of documentary and testimonial evidence. On September 24, 2003, the Court heard oral argument over the course of seven hours.

3

In their briefs, Plaintiffs note that they are not

challenging decisions on promotions into, or

compensation for, the position of Store Pharmacist,

which is subject to special educational and state

licensing requirements. Pls.’ Mot. at 37 n. 30.

Accordingly, this position would be excepted from the

class. Plaintiffs also propose to sever the racial

discrimination claims alleged by two named plaintiffs

and exclude these claims from the class case. Id. at 48

n. 36.

Before proceeding further, the Court wishes to acknowledge Defendant’s characterization of this motion as historic in nature. Defendant emphasizes that the proposed class covers at least 1.5 million women who have been employed over the past five years at roughly 3,400 stores, thus dwarfing other employment discrimination cases that have come before. In its view, these numbers alone make this case impossible. Certainly, the size of the putative class raises concerns regarding manageability which this Court must, and does, carefully consider. Title VII, however, contains no special exception for large employers. Enacted in 1964 during the height of the civil rights movement, this Act forbids gender and race-based discrimination in the American workplace. Two years later, federal class action rules were amended to facilitate the vindication of these rights on a broader basis. See In re Monumental Life Ins. Co., 365 F.3d 408, 417 n. 16 (5th Cir.2004) ( Fed.R.Civ.P. 23(b)(2) was added in 1966 primarily to facilitate the bringing of civil rights class actions). Insulating our nation’s largest employers from allegations that they have engaged in a pattern and practice of gender or racial discrimination—simply because they are large—would seriously undermine these imperatives. Indeed, it is interesting to note, as a matter of historical perspective, that Plaintiffs’ request for class certification is being ruled upon in a year that marks the 50th anniversary of the Supreme Court’s decision in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). This anniversary serves as a reminder of the importance of the courts in addressing the denial of equal treatment under the law wherever and by whomever it occurs. Id. at 495, 74 S.Ct. 686.
Notions of historical import aside, the Court also takes this opportunity to acknowledge two important factors.
7

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

First, the Court, by this motion, is not called upon to make any determination on the merits of Plaintiffs’ allegations of gender discrimination; rather, only procedural questions are presented. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Thus, resolution of this motion for class certification should not be construed in any manner as a ruling on the merits or the probable outcome of the case. Second, in spite of Defendant’s concerns regarding the historic nature of this motion, the Court does not encounter the issues raised herein on a barren legal landscape. Rather, this Court is satisfied that ample legal precedent is available to guide the Court in determining the propriety of Plaintiffs’ request for class certification. Indeed, while the size of the proposed class is unique, the issues are not novel, and Plaintiffs’ claims are relatively narrow in scope.4

4

Although Defendant characterizes this case as a “wall-

to-wall” and “across-the-board” class action, Def.’s

Opp’n at 1, it overstates the breadth of the case. While,

as noted, the proposed class size is extremely large, the

types of claims asserted are relatively limited in the

context of other judicially sanctioned class actions. As

described above, Plaintiffs challenge Defendant’s

alleged discriminatory actions solely pursuant to Title

VII, without attempting to combine multiple legal

claims through other statutes or constitutional

provisions, as is common in other cases. The class is

also limited to women; plaintiffs do not attempt to

combine gender with race, age, disability, or other

classifications. Further, Plaintiffs allege class-wide

discrimination only in terms of pay and promotion—

not hiring, hostile work environment, failure to train,

retaliation, or other adverse employment actions. The

class also is limited to certain categories of in-store

employees, and does not seek to include other

categories of workers; importantly, the proposed class

does not reach into the upper levels of management.

Nor does it seek compensatory damages. Thus, while

this is a “wall-to-wall” case geographically speaking, in

all other respects it is substantially more limited than

Defendant suggests.

*143 Having fully analyzed the pleadings, evidence, and oral argument presented by the parties, and the entire record herein, the Court grants in part and denies in part Plaintiffs’ motion for class certification. Specifically, and as explained in greater detail below, the Court rules as follows:
1) With respect to Plaintiffs’ claim for equal pay, Plaintiffs’ motion is granted and the proposed class is certified with respect to issues of liability and all forms of requested relief;
2) With respect to Plaintiffs’ promotion claim, Plaintiffs’ motion is granted in part and denied in part. Specifically,

the Court certifies the proposed class with respect to issues of liability (including liability for punitive damages) and injunctive and declaratory relief. The Court finds, however, that with respect to the remedy of lost pay, it is manageable only with respect to those challenged promotions where objective data is available to document class member interest in the challenged promotion. Thus, the Court denies certification, on grounds of unmanageability, with respect to Plaintiffs’ promotion claims for lost pay (and thus punitive damages) as to those class members for whom no such data is available.
LEGAL STANDARD
[1] A party seeking to certify a class must demonstrate that it has met all four requirements of Federal Rule of Civil Procedure 23(a), and at least one of the requirements of Rule 23(b). Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186 (9th Cir.2001). Rule 23(a) requires that all of the following four factors be met: “(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.” In short, the class must satisfy the requirements of numerosity, commonality, typicality, and adequacy. Fed.R.Civ.P. 23(a).
Rule 23(b) requires, in relevant part, that one of three additional requirements be met. Here, plaintiffs assert that this case falls within Rule 23(b)(2), which provides 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 or corresponding declaratory relief with respect to the class as a whole.” Fed.R.Civ.P. 23(b)(2). Rule 23(c) allows a court to maintain a class action as to particular issues only or to divide a class into subclasses. Fed.R.Civ.P. 24(c)(4).
[2] [3] The party seeking certification must provide facts sufficient to satisfy Rule 23(a) and (b) requirements. Doninger v. Pacific Northwest Bell, Inc., 564 F.2d 1304, 1308–09 (9th Cir.1977). In turn, the district court must conduct a rigorous analysis to determine that the prerequisites of Rule 23 have been met. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). If a court is not fully satisfied, certification should be refused. Id. Conditional certification is no longer proper. See Fed.R.Civ.P. 23, Advisory Committee Notes, 2003 Amendments.
[4] While the court’s analysis must be rigorous, Rule 23 confers “broad discretion to determine whether a class
8

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

should be certified, and to revisit that certification throughout the legal proceedings before the court.” Armstrong v. Davis, 275 F.3d 849, 872, n. 28 (9th Cir.2001); see also Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 816 (9th Cir.1997). “ ‘Implicit in this deferential standard is recognition of the essentially factual basis of the certification inquiry and of the district court’s inherent power to manage and control pending litigation.’ ” In re Monumental Life Ins. Co., 365 F.3d at 414 (citation omitted); see also Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994) (“In light of the fact that trial courts have the primary responsibility of ensuring the ‘orderly management of litigation’ and that the purpose of class actions lies in ‘advanc [ing] the efficiency and economy of multi-party litigation,’ trial *144 courts ‘are uniquely well situated to make class certification decisions.’ ”) (citations omitted).
[5] In Falcon, the Court reiterated the well-recognized precept that “ ‘the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ ” Falcon, 457 U.S. at 160, 102 S.Ct. 2364 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)). Nevertheless, “[w]e 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 maintained as a class action.” Eisen, 417 U.S. at 177, 94 S.Ct. 2140. Thus, “[a]lthough some inquiry into the substance of a case may be necessary to ascertain satisfaction of the commonality and typicality requirements of Rule 23(a), it is improper to advance a decision on the merits to the class certification stage.” Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 480 (9th Cir.1983) (citation omitted); see also Nelson v. United States Steel Corp., 709 F.2d 675, 679–80 (11th Cir.1983) (plaintiffs’ burden at class certification “entails more than the simple assertion of [commonality and typicality] but less than a prima facie showing of liability”) (citation omitted); Caridad v. Metro–North Commuter R.R., 191 F.3d 283, 292 (2d Cir.1999); Fed.R.Civ.P. 23, Advisory Committee Notes, 2003 Amendments (court review of the merits should be limited to those aspects relevant to making the certification decision on an informed basis).5 With these principles in mind, the Court turns to the requirements of Rule 23(a).

5

The restriction on conducting a merits inquiry applies

equally to the Court’s review of the expert testimony

presented by the parties. Rather than resolving the

“battle of the experts,” and without conclusively ruling

on admissibility, the Court’s role at the class

certification stage is to determine whether the expert

evidence adds probative value to plaintiffs’ claims. See

Thomas & Thomas Rodmakers, Inc. v. Newport

Adhesives and Composites, Inc., 209 F.R.D. 159, 162–

63 (C.D.Cal.2002).

ANALYSIS
I. Rule 23(a) Factors
A. Numerosity [6] [7] Under the first Rule 23(a) factor, the class must be “so numerous that joinder of all members is impracticable.” Fed.R.Civ.P. 23(a)(1); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). Plaintiffs need not state the exact number of potential class members; nor is a specific minimum number of class members required. Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 448 (N.D.Cal.1994). Rather, whether joinder is impracticable depends on the facts and circumstances of each case. Id. Wal–Mart does not contest that numerosity is satisfied here, given that both parties estimate that the proposed class numbers over one million women. Indeed, it is beyond dispute that joinder would be impracticable in this case. Accordingly, the Court finds that this factor is satisfied.

B. Commonality [8] Rule 23(a)(2) requires that common questions of law or
fact exist among class members. As the Supreme Court
has explained, this requirement overlaps with the
typicality requirement:

[T]he commonality and typicality

requirements ... tend to merge.

Both serve as guideposts for

determining whether under the

particular

circumstances

maintenance of a class action is

economical and whether the named

plaintiff’s claim and the class

claims are so interrelated that the

interests of the class members will

be fairly and adequately protected

in their absence.

Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364. Nonetheless, each factor serves a discrete purpose— commonality focuses on the relationship of common facts and legal issues among class members, while typicality examines the relationship of facts and issues between the representatives and the class. See Conte & Newberg on Class Actions, Vol. I, at 411 (4th ed.) (hereafter “Newberg”). In other words, commonality refers to the group characteristics of the class as a whole, and
9

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
typicality refers to the individual characteristics of the named plaintiffs in relation to the *145 class. As such, the Court will address each factor separately.
[9] [10] Rule 23(a)(2) does not require that all questions of law or fact be common. The test is qualitative rather than quantitative—one significant issue common to the class may be sufficient to warrant certification. 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); Newberg, Vol. I, at 272–74. Indeed, the necessary showing to satisfy commonality is “minimal.” Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir.1998). Specifically, plaintiffs may demonstrate commonality by showing that class members have shared legal issues but divergent facts or that they share a common core of facts but base their claims for relief on different legal theories. Id. at 1019.
[11] Plaintiffs present extensive evidence to support their contention that there are significant factual and legal questions common to all class members with respect to whether Wal–Mart has engaged in company-wide discrimination against female in-store employees in pay and promotions. This evidence can be grouped into three major categories: (1) facts and expert opinion supporting the existence of company-wide policies and practices; (2) expert statistical evidence of class-wide gender disparities attributable to discrimination; and (3) anecdotal evidence from class members around the country of discriminatory attitudes held or tolerated by management. The Court concludes that this evidence more than satisfies plaintiffs’ burden to demonstrate commonality under Rule 23(a)(2). Each category is discussed in detail below.
1. Company–Wide Policies and Practices This first category can be further divided into two discrete areas. First, Plaintiffs present evidence that Wal–Mart’s policies governing compensation and promotions are similar across all stores, and build in a common feature of excessive subjectivity which provides a conduit for gender bias that affects all class members in a similar fashion. Second, Plaintiffs submit evidence that Wal– Mart cultivates and maintains a strong corporate culture which includes gender stereotyping. While the parties vigorously dispute certain aspects of this evidence, and certainly draw different inferences therefrom, it is sufficient at this juncture to support Plaintiffs’ claim that there are common issues as to whether Wal–Mart engages in discriminatory policies and practices that affect putative class members in a similar manner.
a. Policies and Practices Governing Compensation and Promotion

Defendant argues that it utilizes a myriad of distinct systems for compensating and promoting in-store employees depending on the position and type of store (or store department), and that these differences preclude any finding of commonality. It further argues that decisions regarding pay and promotions are too decentralized to create any questions common to the class. As discussed below, however, while some variations exist, there is a basic organizational structure that is consistent across store types and throughout the company’s domestic stores in important respects. Furthermore, the policies governing in-store compensation and promotions uniformly provide for managers to exercise significant subjectivity in making pay and promotion decisions. Indeed, although the parties disagree about many of the fine points, they essentially agree that Wal–Mart managers make pay and promotion decisions for in-store employees in a largely subjective manner.

(1) Overview of Wal–Mart Store Structure As noted above, Wal–Mart operates four different types of stores: Discount Stores, Supercenters, Neighborhood Markets, and Sam’s Clubs. Wal–Mart considers the first three to be part of a single operation, while Sam’s Club operates as a separate division. All stores (except Sam’s Clubs) are divided into six divisions, for a total of seven divisions including Sam’s Clubs. Each division in turn is divided into regions for a total of 41 regions nationwide. Each region contains roughly 80–85 stores. K. Harper Depo. at 177, 215 (Webber Decl. Ex. 1); Butler Depo. at 39 (Webber Decl. Ex. 4).
*146 Merchandise sold in the stores is generally segregated in up to 40–53 separate departments (e.g.— apparel, jewelry, hardware).6 Certain departments are designated “specialty departments” and are considered to operate as semi-autonomous units within the stores. The eight specialty departments are One–Hour Photo, Optical, Pharmacy, Shoes, Jewelry, Tire & Lube Express, Hearing, and Wireless Services. Grocery sections in the Supercenters also are considered to be semi-autonomous units within the stores. K. Harper Depo. at 90, 155–56 (Webber Decl. Ex. 1).

6

Because of their relatively small size, Neighborhood

Markets do not have departments but instead are

“organized into areas.” Haworth Decl. ¶ 57.

While the size and inventory of Wal–Mart stores vary, the evidence indicates that the personnel structure within each store operates in a basically similar fashion using similar job categories, job descriptions, and management hierarchies.7 At the top of the in-store management structure are the salaried positions beginning with the
10

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

Store Manager. See K. Harper Depo. at 152 (Webber Decl. Ex. 1). In certain larger stores, there are Co– Managers who report to the Store Manager and often oversee the grocery departments. See id. at 35–36, 155– 56; Haworth Decl. ¶ 50. Next in line are the Assistant Managers, with several per store, depending on store size. Specialty Department Managers report directly to District Managers as well as the Store Manager.

7

Some divisions may use slightly different

nomenclature. For example, Sam’s Club follows

essentially the same hierarchy as the other Wal–Mart

divisions, but uses different titles for some positions.

Thus, the head of a Discount Store or Supercenter is

called a Store Manager, while the head of a Sam’s Club

is called a General Manager; yet both positions have

virtually identical duties. See Burner Depo. at 144:16–

24 (Webber Decl. Ex. 5).

In order to transition into a salaried management position, employees must generally go through a four-to-five month training program as a “Management Trainee.” See Def.’s Opp’n at 40. The Management Trainees are considered as being in a limbo phase between the hourly and salaried ranks, although they are paid on an hourly basis.
With respect to the hourly positions, the highest is that of Support Manager, which is considered a feeder into the Management Trainee position. Below Support Manager are the Department Managers and Customer Service Managers, who serve as lower-level hourly supervisors. At the bottom rung are the entry level Cashiers, Sales Associates, Stockers, and others.
In general, roughly 65 percent of hourly employees are women, while roughly 33 percent of management employees are women. Drogin Decl. ¶ 19. The approximate percentages of women in specific hourly and salaried management positions are as follows:
Salaried Positions
Store Manager—14%
Co–Manager (only in larger stores)—23%
Assistant Manager—36%
Hourly Positions
Management Trainee—42%
Support Manager—50%
Department Manager—78%
Customer Service Manager—85–90%

Other hourly positions—70%8

8

This category comprises the four largest hourly jobs as

follows: (1) Department Head (78%), (2) Sales

Associate (68%), (3) Hardlines/Home Area Overnight

Associates (57%), and (4) Cashier (93%). Drogin Decl.

¶ 26, Tables 10–11.

See Drogin Decl. ¶ 23, Table 7.

(2) Policies Governing Compensation
(a) Hourly Employees All hourly employees at every Wal–Mart store are compensated pursuant to the same general pay structure. Each store has a minimum starting wage for each class of hourly jobs that is set by the Wal–Mart Home Office in Arkansas (hereafter “Home Office”). Beyond that, Store Managers are granted substantial discretion in making salary decisions for hourly employees in their respective stores. Specifically, they are allowed to depart from the minimum start rates, within a two dollar per hour range, without being constrained by objective criteria *147 and with limited oversight. See Def.’s Opp’n at 5–6 & n. 4. Indeed, “[i]n setting pay, a Store Manager makes the call based on his or her needs.” Id. at 15; Haworth Decl. ¶ 4 (“This is a company that relies on its Store Managers to set the specific wage rates of each store’s employees.”). Given that hourly workers typically earn approximately $18,000 per year (based on 2001 wages), see Drogin Decl. ¶ 19, the two dollar per hour discretionary range is significant. Store Managers also are allowed to increase pay for exceptional performance, again with limited guidance or oversight.
As a partial constraint on this local control Wal–Mart utilizes a system of oversight known as “management by exception.” Under this system, District Managers and Specialty Group Regional Managers receive “exception reports” if Store Managers set an employee’s pay rate at more than six percent above the minimum rate set by the Home Office, and must approve such rates. Defendant’s national pay structure also specifies a 25 cent-per-hour gap between start rates in consecutive pay classes. See Drogin Reply Decl. ¶ 23; Webber Decl., Exhs. 93–94. This limited oversight, however, still leaves individual Store Managers with substantial discretion in setting pay rates for in-store employees. As one Store Manager explained, “There’s [a presumptive limit of two dollars above the base], but I can do what I want. I mean, if I start throwing money around, I mean, eventually the phone is going to ring. But the store manager has the flexibility to do what he needs to do to run the building.” Shatz Depo. at 66 (Weber Decl. Ex. 46).
11

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

(b) Salaried Employees All types of Wal–Mart stores also compensate their salaried in-store management employees pursuant to common policies and practices. These decisions are made primarily by District Managers (the first level in the management hierarchy above Store Managers) and their superiors, the Regional Managers.
(1) Assistant Managers: For these lowest level salaried managers, Wal–Mart’s Exempt Associate Pay Guidelines establish a broad salary range within which District Managers have discretion to set pay rates with little guidance and limited oversight. Assistant Managers receive a base salary and are eligible to receive annual performance and merit increases and a bonus. See Haworth Decl. ¶ 221; Def.’s Opp’n at 35 n. 21. Those working in areas with a high cost of living receive Geographical Assistance Pay (GAP). See Arnold Decl. ¶ 9. The base salary range for Assistant Managers starts at $29,500 and goes to between $42,000 to $47,000 depending on store size. See Haworth Decl. ¶ 222.9

9

Assistant Managers at Sam’s Clubs have a similar pay

structure, except that they are eligible for incentive

plans based on store profitability. See Haworth Decl. ¶¶

231–33.

(2) Co–Managers: Similarly, Co–Manager pay rates are set by District Managers who exercise complete discretion, with little guidance and limited oversight, to set salaries within a base salary range from $42,000 to $47,000 (with GAP adjustments). Co–Managers are also eligible to participate in an incentive plan based on store profitability. They do not receive merit or performance increases. Id. at ¶ 225.10

10

Co–Managers at Sam’s Clubs have a similar pay

structure. See Haworth Decl. ¶ 236.

(3) Specialty Departments: Specialty Department Managers also have similar, albeit not identical, pay structures. Defendant’s expert, Dr. Joan Haworth, states that each Specialty Department has a “different compensation plan,” but she only identifies four of the eight departments (Tire & Lube Express [TLE], Photo, Optical, and Pharmacy). Among those, all have base salaries in broad ranges (spanning from $24,000 to over $40,000 at the top, with GAP adjustments), all are eligible for incentive plans, and all are eligible for merit and performance increases. Id. at ¶¶ 241–45. Again, these managers’ pay rates are set by higher level managers with complete discretion within the relevant range, with limited guidance or oversight.

(4) Store Managers: Store Managers are paid a base salary determined by store size, ranging from $44,000 to $50,000, with GAP adjustments. They also are eligible to receive incentives based on store size and profitability. *148 Id. at ¶ 227. Again, their base salaries are determined by upper level managers with broad discretion within the established range.
As the above reflects, there is a basic compensation structure that applies similarly to all in-store salaried management positions across all types of Wal–Mart stores, in that the computation begins with a base salary within a range set by the corporation (with an allowance for GAP), with adjustments allowed for profit incentives and/or merit increases. While certain differences exist— e.g., some positions allow for profit incentives while others build in merit incentives or both—they do not fundamentally alter the common nature of the positions. Most importantly, all of the in-store salaried positions— like all of the hourly positions—share the common feature that there is a broad range of discretion built into the compensation structure for each position. As discussed further infra, this feature also provides a potential conduit for gender discrimination that is common to all class members. At this point, however, it suffices to say that Defendant’s policies governing compensation of hourly and salaried employees do not preclude a finding of commonality; on the contrary, the evidence indicates that there is significant uniformity across stores, and that Defendant’s policies all contain a common feature of subjectivity that is relevant to Plaintiffs’ claims of classwide gender discrimination thus supporting the existence of questions common to the class.
(3) Policies Governing Promotions As with salary decisions, the parties agree that subjectivity is a primary feature of promotion decisions for in-store employees. In the words of Wal–Mart President and CEO Thomas Coughlin, “We push down to the manager of the facility level, [sic.] the responsibility to run those stores right.” Haworth Decl. ¶ 7. The subjectivity in promotion decisions occurs in two fundamental ways: (a) a largely subjective selection practice hindered by only minimal objective criteria, combined with (b) a failure to post a large proportion of promotional opportunities.
(a) Subjectivity in the Selection Practice The first promotion category challenged by Plaintiffs— the Support Manager position—is the primary feeder for the Management Training Program. It is undisputed that Wal–Mart allows Store Managers to apply their own subjective criteria when selecting candidates for the
12

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
Support Manager position. Decisions regarding advancement into the Management Training Program are made by District and Regional Managers. Wal–Mart has minimum corporate guidelines for promotion into these positions, which include requirements that candidates have an “above average” evaluation, have at least one year in their current position, be current on training, not be in a “high shrink” department or store, be on the company’s “Rising Star” list, and be willing to relocate. However, since the guidelines set forth only the minimum requirements for advancement, the decisions as to who will actually be selected for the Management Training Program are based largely on subjective criteria, resulting in what is fairly characterized as a “tap on the shoulder” process. See Butler Depo. at 135:4–11 (Webber Decl. Ex. 4) (“Each District Manager kind of has their own way of identifying talent within their district for development.”); Kintzele Depo. at 86:20–23 (Webber Decl. Exh. 13) (explaining that Store Managers nominate candidates for promotion); M. Miller Depo. at 65:2–13 (Webber Decl. Ex. 54); June 27, 2002 E-mail from Jarrells–Porter (Webber Decl. Ex. 100) (statement of Senior Vice President that Wal–Mart “[does] not have a poster, brochure, nothing that I am aware of” to inform hourly workers “how to get promoted into the management training program”); Bielby Decl. ¶ 22 (citing testimony of Wal–Mart managers that promotions to in-store management positions are made based on largely discretionary criteria). Decisions regarding advancement to the highest in-store positions—Assistant Manager, Co– Manager, and Store Manager—are similarly based on subjective assessments beyond adherence to corporate minimum guidelines. See, e.g., Kintzele Depo. 130:10, 133:9–135:16, 165:22–167:1 (Webber Decl. Ex. 13); Bielby Decl. ¶ 37. *149 The subjective nature of Defendant’s promotion practices is further compounded by the fact that the company does not monitor the promotion decisions being made or otherwise systematically review the grounds on which candidates are selected for promotion. Bielby Decl. ¶¶ 37–38 & n. 53 (citing testimony of numerous Wal–Mart executives and managers).
(b) Failure to Post Promotional Opportunities It is undisputed that, until January 2003, Wal–Mart did not post job vacancies for its Assistant Management Training Program, and it posted only a small number of vacancies for the Co–Manager position. See Def.’s Opp’n at 40 (“Wal–Mart does not have applicant flow data for the Trainee position before 2003”); Drogin Decl. ¶ 46 & Table 20.11 Also, despite a stated policy to post hourly Support Manager positions, roughly 80 percent of these openings were not in fact posted. Drogin Decl. ¶ 44 & Table 19. Because most positions were not posted, class members had no ability to apply for, or otherwise formally express their interest in, openings as they arose.

As a result, Managers did not have to consider all interested and qualified candidates, thus further intensifying the subjective nature of the promotion process.12

11

From December 1998 through October 2002, Wal–

Mart posted only 238 Co–Manager openings. Id. at 120

(chart identifying number of offers for “Co–Mgr–

Supercenter” and “Co–Mgr–Div. 1”).

12

Defendant argues that its wide-scale lack of posting is

ameliorated by an aspect of its annual review process

whereby employees “list what job they wished to be

considered for in the ensuing year.” Transcript of

September 24, 2003 Oral Argument (“Oral Arg. Tr.”) at

199:22—200:5. However, there is no evidence in the

record that this was a systematic process, that the

company tracked these expressions of interest, or that

the process substituted for a true posting system in any

manner.

Wal–Mart did post openings for Store Manager positions during the relevant class period. This was not, however, an “open” application process; rather, candidates were required to obtain permission from their District Manager before being allowed to apply. In selecting who could apply, such managers have been free to rely upon subjective criteria beyond the minimum corporate guidelines. Thus the posting of Store Manager positions did not fully ameliorate the subjective nature of the promotion process for these positions.

(4) Whether Defendant’s Compensation and Promotion Policies Support a Finding of Commonality Having reviewed the extensive evidence submitted by the parties, this Court is satisfied that Wal–Mart’s systems for compensating and promoting in-store employees are sufficiently similar across regions and stores to support a finding that the manner in which these systems affect the class raises issues that are common to all class members. Moreover, the fact that Wal–Mart’s compensation and promotion policies consistently permit managers to utilize a great deal of subjectivity further supports a finding of commonality.
While some level of subjectivity is inherent in, and in fact a useful part of, personnel decisions, courts have long recognized that the deliberate and routine use of excessive subjectivity is an “employment practice” that is susceptible to being infected by discriminatory animus. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990–91, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (subjective decision-making is a “practice” subject to challenge under Title VII); Falcon, 457 U.S. at 159 n. 15,
13

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

102 S.Ct. 2364; Sengupta v. Morrison–Knudsen Co., 804 F.2d 1072, 1075 (9th Cir.1986) (citation omitted); Casillas v. United States Navy, 735 F.2d 338, 345 (9th Cir.1984) (citation omitted). In the same vein, a general practice of not posting promotional opportunities also supports a finding of commonality. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1187 n. 17 (9th Cir.2002) (“Failure to post vacancies and the use of subjective promotions practices ... may be evidence of discrimination”).
And while the presence of excessive subjectivity, alone, does not necessarily create a common question of fact, where, as here, such subjectivity is part of a consistent corporate *150 policy and supported by other evidence giving rise to an inference of discrimination, courts have not hesitated to find that commonality is satisfied. See e.g., Shipes v. Trinity Industries, 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); Caridad, 191 F.3d at 292; Beckmann v. CBS, 192 F.R.D. 608, 613 (D.Minn.2000); Shores v. Publix Super Markets Inc., 1996 WL 407850, at *6 (M.D.Fla. Mar.12, 1996) (defendant’s “policy of delegating hiring and promotion decisions to managers, who make those decisions on the basis of subjective criteria, is a common course of conduct ... adequate to meet the commonality requirement of Rule 23”).13

13

See also Butler v. Home Depot, Inc. (Butler I), 1996

WL 421436 (N.D.Cal. Jan.25, 1996); Adams v. Pinole

Point Steel Co., 65 Fair Empl.Prac.Cas. (BNA) 782,

1994 WL 515347, at *9 (N.D.Cal. May 18, 1994)

(“[Plaintiffs] allege that [defendant’s discriminatory]

practices stem from a subjective hiring criteria and a

high level of discretion afforded supervisory

employees. A general policy of discrimination that

affects individual class members provides a ‘common

nucleus of operative fact,’ and thus sufficient

commonality to support class certification.”); Stender v.

Lucky Stores, Inc., 803 F.Supp. 259, 335

(N.D.Cal.1992); Wofford v. Safeway Stores, Inc., 78

F.R.D. 460, 479 (N.D.Cal.1978).

The situation here is similar to Morgan v. United Parcel Service, Inc., 169 F.R.D. 349 (E.D.Mo.1996), in which the parties agreed that United Parcel Service had a subjective, decentralized decision-making process for promotions. The defendant claimed that this process should defeat commonality because individualized decisions are made at the local level, whereas plaintiffs argued that the policy of giving local managers unfettered authority was part of a nation-wide corporate policy to which all employees were subjected and which resulted in

racial discrimination. Id. at 356. The court agreed with plaintiffs that the subjective decision-making practice was sufficient to satisfy the commonality requirement. Id.
Wal–Mart similarly argues that the fact that pay and promotion decisions are made locally by individual Store Managers necessarily defeats a finding of commonality. To support this argument, it attempts to align itself with those cases in which courts have denied certification based on geographically diverse corporations with localized decision-making. In the principal case relied on by Defendant, Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (N.D.Ga.2001), the court held that because the challenged employment practices were highly localized among many facilities, plaintiffs could not establish commonality. While Reid recognized that subjective decision-making may give rise to an inference of discrimination, it determined on the facts of the case that there was no evidence to provide a nexus between the subjective decision-making and discrimination. Id. at 670–72. Here, in contrast, plaintiffs have presented evidence of such a nexus by presenting evidence of gender stereotyping and a corporate culture of uniformity (discussed in greater detail below). Furthermore, Reid emphasized that all of the named plaintiffs in that case worked at the same facility, thereby leaving the court without any basis upon which to conclude that similar practices existed among diverse facilities. Id. Here, in contrast, the named plaintiffs work in different stores and Plaintiffs have submitted over a hundred declarations by designated class members showing common subjective practices across the country. The Court therefore finds Reid distinguishable.14

14

Similarly, in the other case principally relied on by

defendant, Rhodes v. Cracker Barrel Old Country

Store, Inc., 2002 WL 32058462, at *56–58 (N.D.Ga.

Dec.31, 2002), magistrate judge op. approved and

adopted, 213 F.R.D. 619 (N.D.Ga.2003), the court

denied class certification where plaintiffs failed to show

any kind of nexus between subjective decision-making

and discrimination. Defendant also attempts to

analogize Wal–Mart’s promotion system to that of

Microsoft, as addressed in Donaldson v. Microsoft, 205

F.R.D. 558 (W.D.Wash.2001). There the court denied

class certification in part based on a lack of

commonality. Id. at 566. Wal–Mart’s practices,

however, are significantly more subjective than those

described in Donaldson. Microsoft used a well-crafted

combination of both objective and subjective measures,

with features not present in Wal–Mart, such as bi-

annual evaluations, advance mapping of goals and

objectives, and an appeal process. Id. at 566.

*151 The Court also rejects Wal–Mart’s suggestion that its practice of giving managers substantial discretion in making pay and promotion decisions should defeat commonality because it would embroil the court or jury in
14

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
an endless series of individual fact scenarios regarding each pay or promotion decision. As discussed in section II.B.1, Plaintiffs’ task at the liability stage of the trial is to prove a pattern and practice of discrimination. To do so, they will need to show sufficient evidence of excessive subjectivity to convince a jury that it is a wide-scale practice, which along with other evidence, is sufficient to create an inference of, and ultimately prove, discrimination. Because the focal point will be the practice of utilizing excessive subjectivity, rather than the facts concerning each individual decision, the Court is satisfied that the subjective nature of Defendant’s personnel practices does not defeat commonality in this case.

b. Corporate Culture Plaintiffs also present evidence that Wal–Mart has developed and continually reinforces a strong, centralized corporate culture. This evidence, taken together with evidence concerning Wal–Mart’s company-wide subjective compensation and promotion practices discussed above, provides a further indicator of commonality. Specifically, Plaintiffs present evidence that Wal–Mart corporate culture includes two principal common aspects relevant to this case: (1) a strong emphasis on building and maintaining a uniform culture, and (2) an environment that may include gender stereotyping.

(1) Wal–Mart’s Emphasis on Uniform Culture There is no genuine dispute that Wal–Mart has carefully constructed and actively fosters a strong and distinctive, centrally controlled, corporate culture.15 See, e.g., R. Harper Depo. at 121 (Webber Decl. Ex. 36) (describing Wal–Mart culture as a “very tight, deep culture” and “a very closed culture from a total corporation standpoint”). This culture, labeled by Defendant as the “Wal–Mart Way,” promotes and sustains uniformity of operational and personnel practices. This is important in the Rule 23 commonality analysis because, as Plaintiffs’ expert, Dr. William Bielby, states, “[a] strong and widely shared organizational culture promotes uniformity of practices throughout an organization.” Bielby Decl. ¶ 18.

15

Sam’s Club shares the same culture as the Wal–Mart

stores. See Swanson Depo. 140:16–19 (Webber Decl.

Ex. 14); Reeves I Depo. 103:1–25 (Webber Decl. Ex.

2).

Every new employee nation-wide goes through the same orientation process and, as part of that process, is trained about the Wal–Mart culture. Thereafter, employees at Wal–Mart stores attend a daily meeting held at shift

changes, where managers discuss the company culture and employees do the Wal–Mart cheer. See Muzingo Depo. at 85–86 (Webber Decl. Ex. 32). Employees also receive weekly training on culture topics at mandatory store meetings.16 Wal–Mart Store Managers are provided with a detailed schedule of corporate culture lessons and accompanying training materials to present at these weekly meetings. The same Computer–Based Learning Modules are used in all stores, including required training on culture topics. Culture is also an integral part of all management training programs. Home Office managers also attend a meeting each Saturday morning which is dedicated once a month to presenting one of the company’s culture lessons. See Muzingo Depo. 135–36 (Webber Decl. Ex. 32). In short, the inculcation of Wal– Mart culture is an ongoing process for all employees regardless of seniority; as one manager puts it, the company has a “continual process of learning culture.” See Swanson Depo. at 141 (Webber Decl. Ex. 14).

16

The Culture Topic Index provided to store management

employees states: “It is important for our Associates to

understand how important culture is to their company.

We have provided you with a culture topic for

mandatory weekly discussions with all store Associates

on each shift during store meetings.” See Bielby Decl. ¶

20, n.30 (and citation therein to document

WMHO598668).

Additionally, Wal–Mart has a strong policy of “promoting from within,” so that the culture lessons learned by juniorlevel employees *152 contribute to building a foundation of common understanding and practice among the management team. See Peterson Depo. at 72:2–6 (Webber Decl. Ex. 16). The company also regularly moves store level managers from one retail facility to another, often from one state to another, and between Wal–Mart and Sam’s Club divisions. On the average, each Store Manager is transferred to a different store 3.6 times after achieving that title. A majority of these transfers are into different districts and are often into different regions. See Drogin Decl. ¶ 35; Drogin Reply Decl. ¶ 24. This degree of mobility could only be efficient in a company with a high degree of store-to-store uniformity. These practices also help ensure that a uniform Wal–Mart Way culture operates consistently throughout all stores.
Wal–Mart also has a very advanced information technology system which allows managers in the Home Office to monitor the operations in each of its retail stores on a close and constant basis. For example, the Home Office is connected through a real-time computer link (called “Managers’ Workbench”) to every Store Manager throughout the country. The company uses the same Computer–Based Learning Modules in all stores, it broadcasts “Wal–Mart TV” into all stores, and employs a number of other uniform communications tools.
15

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

Centralization at Wal–Mart extends to the point where the Home Office controls the temperature and music in each store throughout the country.
Finally, plaintiffs present evidence from Dr. Bielby, a sociologist, to buttress their claim that Wal–Mart has a strong corporate culture. After undertaking an extensive review of the depositions of Defendant’s managers, Wal– Mart policies, and the professional research and literature in the field, Dr. Bielby gives the following opinion:

In sum, consistent with the

organizational research on this

topic, Wal–Mart’s distinctive

corporate culture is sustained by

focused efforts of the firm through

on-going training and socialization,

communication

specifically

designed to reinforce its distinctive

elements, promotion from within

and relocating managers from store

to store, and shared experiences

among employees that build

commitment to shared beliefs and

values. As a result of these efforts,

employees achieve a common

understanding of the company’s

ways of conducting business.

Bielby Decl. ¶ 21.17

17

Additionally, Dr. Bendick, Plaintiffs’ labor economics

expert, concludes that Wal–Mart has a high

management centralization ratio, in that 15.4 percent of

its managers are located at the company headquarters,

compared with an average of 8.1 percent for its twenty

closest comparators. From this data, Dr. Bendick

concludes that Wal–Mart has a strong corporate culture

that is both perpetuated by and reflected in employment

policies and practices that are common company-wide.

Bendick Decl. ¶¶ 64–65.

Wal–Mart counters the suggestion that its strong corporate culture creates any commonality among class members in disparate locations by arguing that each of its stores is a virtual “main street” of stores within a store, all run by independent managers. See Def.’s Opp’n at 13. It also contends that each division of stores has its own unique hierarchical structure of reporting and supervision. Id. at 14. While it is true that the terminology and some details vary from division to division, and within store departments, there does not appear to be a significant difference in actual function. Rather, as discussed supra, Plaintiffs have presented evidence that the basic operational structure and staffing patterns of stores are quite uniform, and each individual store is subject to oversight from the company’s Home Office, where all regional and higher level managers are based.

The Court recognizes that there is a tension inherent in characterizing a system as having both excessive subjectivity at the local level and centralized control. To clarify, the evidence indicates that in-store pay and promotion decisions are largely subjective and made within a substantial range of discretion by store or district level managers, and that this is a common feature which provides a wide enough conduit for gender bias to potentially seep into the system. These subjective decisions are not, however, made totally in isolation. Rather, the company maintains centralized corporate policies that provide *153 some constraint on the degree of managerial discretion over in-store personnel decisions. The evidence suggests that the company relies also on its strongly imbued culture to guide managers in the exercise of their discretion. It would be premature and inappropriate for the Court to determine the precise degree to which the forms of centralized control at Wal– Mart keep managerial discretion in check. See Eisen, 417 U.S. at 177, 94 S.Ct. 2140; Orlowski v. Dominick’s Finer Foods, Inc., 172 F.R.D. 370, 373–74 (N.D.Ill.1997) (court found commonality in promotion process where degree of centralized decision-making could not be definitively determined without performing full merits inquiry). It is clear, however, that given the evidence regarding strong uniform culture and policies, the degree and impact of this practice is a significant question of fact common to the class as a whole. See Morgan, 169 F.R.D. at 356 (commonality requirement can be met where company combines “subjective, decentralized system of decisionmaking” with personnel policies that are “uniform throughout the country and are promulgated by the national corporate office”).

(2) Gender Stereotyping Plaintiffs also rely on the expert testimony of Dr. Bielby to support their contention that gender stereotyping is likely to exist at Wal–Mart, and that it persists to the present day. Dr. Bielby notes that there are many reasons why men and women can have different career trajectories, some of which are not generally considered discriminatory, such as differing job-related skill requirements. See Bielby Decl. ¶ 28. Employers create gender barriers, however, when they allow stereotypes to affect personnel decisions. Id. at ¶ ¶ 28–29.18

18

As another example, both parties recognize that family

constraints limit women more than men, and that this is

a broad phenomenon that is not entirely attributable to

Wal–Mart. However, Dr. Bielby states that in an

environment of stereotyping, people tend to act on

assumptions that overstate the extent to which they are

true. Without a systematic mechanism for determining

availability and interest in promotion, stereotypes lead

decision-makers to overlook or discount women’s

16

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
desire and qualifications for advancement. See Bielby Decl. ¶ 30.
Dr. Bielby opines that the social science research demonstrates that gender stereotypes are especially 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.” Id. at ¶ 34. With respect to Wal–Mart in particular, Dr. Bielby confirms that managers make decisions with considerable discretion and little oversight. Id. at ¶¶ 37–41. He concludes that subjective decisions such as these, as well as discretionary wage decisions, are likely to be biased “unless they are assessed in a systematic and valid manner, with clear criteria and careful attention to the integrity of the decision-making process.” Id. at ¶ 39. Dr. Bielby further concludes that these systematic elements are missing from Wal–Mart’s decision-making process. Id. Dr. Bielby also notes that the company’s practice of requiring relocation across stores for salaried managers, which generally creates a greater burden for women, makes the promotion process “especially vulnerable to gender stereotyping.” Id. at ¶ 45.
Lastly, Dr. Bielby reviewed Wal–Mart’s diversity and equal opportunity policies, many of which have been implemented in just the last few years. He concluded that they have identifiable weaknesses that limit their effectiveness for identifying and eliminating discriminatory barriers. Id. at ¶ 62. For example, while Wal–Mart regularly compiles statistics on the gender composition of its workforce, it has not undertaken a systematic assessment to identify possible barriers to women’s advancement. Id. at ¶ 52. As another example, while Wal–Mart sets diversity goals for female representation in management, the goals appear to be largely ad hoc. Rather than setting the goals based on an understanding of the number of qualified and interested women available for a given position, many of the managers simply make their own subjective determinations or set their goals as incremental improvements over the prior year. Id. at ¶¶ 54–55. On the whole, Dr. Bielby recognizes that Wal–Mart has increased its emphasis on diversity issues *154 in the past few years, but because the company has not translated that emphasis into practical and effective measures, there has been little actual impact on gender differentials in pay and promotion. Id. at ¶¶ 56–57 (citing former Vice President’s view that by failing to tie diversity achievement to manager’s incentive pay, the company’s diversity efforts remain “lip service”). Additionally, although Wal–Mart regularly surveys its employees on a number of job-related issues (through its “Grass Roots” personnel program), it has never performed any kind of

survey addressing diversity or gender issues. Id. at ¶ 61.
Defendant contests the accusation of gender stereotyping on the facts and by challenging Dr. Bielby’s opinions. As a factual matter, Defendant points out a number of ways in which Wal–Mart culture promotes diversity. Wal–Mart has earned national diversity awards and its executives discuss diversity and include it in the company handbooks and trainings. See Porter Decl. ¶¶ 5–22. The company also has diversity goals, performance assessments, and penalties for EEO violations. See Def.’s Opp’n at 20.
Defendant also challenges Dr. Bielby’s opinions as unfounded and imprecise. It is true that Dr. Bielby’s opinions have a built-in degree of conjecture. He does not present a quantifiable analysis; rather, he combines the understanding of the scientific community with evidence of Defendant’s policies and practices, and concludes that Wal–Mart is “vulnerable” to gender bias. See Bielby Decl. ¶ 63. Defendant rightly points out that Dr. Bielby cannot definitively state how regularly stereotypes play a meaningful role in employment decisions at Wal–Mart. See Def.’s Opp’n at 20:25–28. However, this is the nature of this particular field of science. See Fed.R.Evid. 702 (allowing “scientific, technical, or other specialized knowledge [that] will assist the trier of fact to understand the evidence”) (emphasis added).
The appropriate question at this stage of the litigation is not whether Dr. Bielby can make a conclusive determination, but whether it could add probative value to the inference of discrimination that plaintiffs allege. Here, Dr. Bielby presents enough of a basis, both in his review of the scientific literature and on the facts of the case, to provide a foundation for his opinions. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (considering similar evidence by expert social psychologist). Whether those opinions, if presented to a jury, are ultimately worthy of belief will be for a jury to decide. For present purposes, Dr. Bielby’s testimony raises an inference of corporate uniformity and gender stereotyping that is common to all class members.
2. Statistical Evidence of Discrimination The second category of evidence presented by plaintiffs is statistical evidence of class-wide gender disparities. Use of statistical analysis to raise an inference of class-wide discrimination and satisfy commonality is well accepted. See, e.g., Caridad, 191 F.3d at 292. Plaintiffs rely primarily on the expert testimony of Dr. Richard Drogin,19 a statistician who concludes, in essence, that there are statistically significant disparities between men and women at Wal–Mart in terms of compensation and promotions, that these disparities are wide-spread across regions, and that they can be explained only by gender
17

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

discrimination. Plaintiffs bolster Dr. Drogin’s analysis regarding promotion discrimination with the expert testimony of a labor economist, Dr. Marc Bendick, who performed a “benchmarking” study of twenty of Wal– Mart’s competitors and concluded that Wal–Mart promotes a lower percentage of women than its retail counterparts.

19

Dr. Drogin is an emeritus professor in the Department

of Statistics at California State University, Hayward

and is a partner in a statistical consulting firm. See

Drogin Decl. ¶¶ 1–2.

Defendant contends that Dr. Drogin’s analysis is substantially flawed and that in fact there is no statistical pattern of discrimination at Wal–Mart. Defendant relies on the testimony of its own expert economist, Dr. Haworth, who provides both a critique of Dr. Drogin’s analysis and a separate analysis that she performed.20 Defendant also challenges *155 Dr. Bendick’s expert testimony as methodologically and factually flawed.

20

Dr. Haworth is the Chair and CEO of ERS Group,

which specializes in the economic and statistical

analysis of employment discrimination cases and other

matters. Dr. Haworth is a former faculty member of the

Department of Economics at Florida State University.

See Haworth Decl. ¶¶ 5–6

Defendant’s arguments seek to engage the Court in a merits evaluation of the expert opinions. The Court rejects this approach, and views the statistical evidence and testimony through the proper lens of the standards applicable to a class certification motion. See Legal Standards, supra; Eisen, 417 U.S. at 177, 94 S.Ct. 2140 (admonishing courts not to engage in a preliminary assessment of the merits).21 Accordingly, the Court delves into the substance of the expert testimony only to the extent necessary to determine if it is sufficiently probative of an inference of discrimination to create a common question as to the existence of a pattern and practice of gender discrimination at Wal–Mart. See Avagliano v. Sumitomo Shoji America, Inc., 103 F.R.D. 562, 574 (S.D.N.Y.1984) (“While [plaintiffs] may have made a greater showing than is required on a motion for certification, certainly no more than an inference need be shown.”) (emphasis in original).

21

See also Caridad, 191 F.3d at 292 (“Though

[defendant’s] critique of the Class Plaintiffs’ evidence

may prove fatal at the merits stage, the Class Plaintiffs

need not demonstrate at this stage that they will prevail

on the merits. Accordingly, this sort of ‘statistical

dueling’ is not relevant to the certification

determination.”) (citation omitted); EEOC v. Gen. Tel.

Co., 885 F.2d 575, 579–82 (9th Cir.1989), cert. denied, 498 U.S. 950, 111 S.Ct. 370, 112 L.Ed.2d 332 (1990); Butler I, 1996 WL 421436, at *3 (N.D.Cal. Jan.25, 1996) ( “the evidence upon which plaintiffs propose to rely—statistical evidence of widespread discrimination—is common to the class as a whole”).

a. Statistical Evidence Regarding Compensation
(1) Overview Both parties’ experts performed tests on an extensive array of Wal–Mart payroll and personnel data to determine whether gender disparities in salary exist and whether such disparities can be attributed to discrimination. Plaintiffs present largely uncontested descriptive statistics which show that women working in Wal–Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time even for men and women hired into the same jobs at the same time, that women take longer to enter into management positions, and that the higher one looks in the organization the lower the percentage of women. See Drogin Decl. ¶¶ 21, 23; Haworth Depo. at 67:14—70:16, 76 (Suppl. Webber Decl. Ex. 129); see also section I.B.1.a.
Evidence that certain disparities exist, however, does not, by itself, explain why they exist. Accordingly, Plaintiffs also present inferential statistical evidence in the form of multiple regression analysis to demonstrate that the above disparities can be explained only by gender discrimination and not by chance or other neutral variables.22 Defendant follows suit with a critique of Plaintiffs’ regression analysis and with a separate regression analysis of its own. Thus, while they disagree as to application, the parties agree in principle that regression analysis is an appropriate and scientifically valid statistical *156 technique which has gained general acceptance, indeed a general preference, by the courts. See Hemmings, 285 F.3d at 1183–84 & n. 9 (“regression analysis is a common statistical tool”); Lavin–McEleney v. Marist College, 239 F.3d 476, 482 (2d Cir.2001) (“It is undisputed that multiple regression analysis ... is a scientifically valid statistical technique for identifying discrimination.”).

22

Multiple regression analysis, in general terms, provides

estimates of the effect of several independent variables

on a single dependent variable. The purpose is to

estimate the extent to which a particular independent

variable (in this case, gender) has influenced the

dependent variables of compensation and promotion.

So long as the analysis includes enough relevant non-

discriminatory independent variables (e.g.—education,

experience, performance, etc.), the results will indicate

whether any salary disparities are attributable to gender

18

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
(thereby raising an inference 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.
Since the parties rely mostly on their regression analyses in this case, the Court is not called upon to decide whether plaintiffs’ descriptive statistics alone suffice to support a finding of commonality or a prima facie case. See Reference Manual on Scientific Evidence, p. 148–49 n. 224 (2d ed. 2000) (“The conditions under which a simple disparity between two groups amounts to a prima facie case that shifts the burden of proof to the defendant in Title VII and other discrimination cases have yet to be articulated clearly and comprehensively.”) (citations omitted).

With respect to compensation, Dr. Drogin performed separate regression analyses for hourly and salaried employees for each Wal–Mart region. In general, the regressions showed statistically significant23 gender-based disparities for all in-store job classifications in all 41 Wal–Mart regions. See Drogin Decl. ¶ 77. Specifically, total earnings paid to women ranged between 5 and 15 percent less than total earnings paid to similarly situated men in each year of the class period. Id. at ¶ 77. Dr. Drogin’s regression analyses included seniority, turnover, performance, and other factors, none of which accounted for the disparities, thereby leaving him to conclude that gender is the only explanatory factor. In short, all of Dr. Drogin’s regressions show that gender is a statistically significant variable in accounting for the salary differentials between female class members and male employees at Wal–Mart stores. Id. at ¶ 76.

23

Statistical significance is measured by standard

deviations. The standard deviation is a number that

quantifies the probability that chance is responsible for

any difference between an expected outcome and the

observed outcome in a sample containing two groups.

The greater the number of standard deviations, the less

likely it is that chance is the cause of any difference

between the expected and observed results. “[A]s a

general rule for ... large samples, if the difference

between the expected value and the observed number is

greater than two or three standard deviations, then the

hypothesis that the [disparity] was random would be

suspect to a social scientist.” Castaneda v. Partida, 430

U.S. 482, 496 n. 17, 97 S.Ct. 1272, 51 L.Ed.2d 498

(1977).

Defendant’s statistical expert, Dr. Haworth, rejected Dr. Drogin’s focus at the regional level and conducted her regression analyses at the store sub-unit level. Consequently, while Dr. Drogin ran a separate regression analysis for each of the 41 regions, Dr. Haworth ran a separate regression analysis for (a) each of the Specialty Departments within each store, (b) each grocery division

within each store, and (c) the remainder of each store. See Haworth Decl. ¶ 191.24 Due to the focus on sub-units, Dr. Haworth performed approximately 7,500 separate regression analyses. Her results show a lack of broadbased gender differential in pay for hourly employees, although they show some gender disparities in limited instances. Dr. Haworth did not perform regression analyses for most salaried positions because, in her view, “total compensation for these jobs is at least in part a function of factors that are not available in the data provided to either side,” and therefore “the regression models may not provide a meaningful explanation of variations in total compensation.” Haworth Decl. ¶¶ 253– 55.

24

As noted earlier, most stores have roughly 40 to 53

departments, such as automotive, jewelry, apparel, etc.

Webber Decl. Ex. 70 at 8–9. Some of these departments

are highly sex segregated (e.g. cashiers are 89.5%

female, hardware sales associates are over 75% male),

while others are roughly even in terms of gender (e.g.

electronics is 47.2% female). Bielby Decl. ¶ 22.

(2) Defendant’s Challenges to Plaintiffs’ Statistical Analysis Defendant does not dispute the accuracy of Dr. Drogin’s calculations, but instead argues that his analysis fails to support an inference of class-wide discrimination because his methodology is fundamentally flawed in two respects: (1) Dr. Drogin improperly aggregated the data at the regional level, and (2) Dr. Drogin failed to account for certain variables. Each point is addressed in turn.

(a) Aggregation at the Regional Level Defendant argues that because Dr. Drogin’s regression analysis was conducted at the regional, rather than the store (or store department) level, his results are too generalized and fail to account for the significant differences in compensation practices that exist among the individual stores. In statistical language, Dr. Drogin’s regional analyses suffer from “aggregation bias,” and the only way to cure this bias, according to Defendant, *157 would be to “disaggregate” the data and test it at the store-by-store level.25

25

Defendant argues in its briefing that the statistical

analysis should be performed at the store level, but Dr.

Haworth went a level lower by analyzing store sub-

units, as described above. This could be seen as a

methodological inconsistency that would undermine

Defendant’s argument. However, Defendant’s rationale

for focusing on the store level is that most

compensation decisions occur at the store level; Dr.

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Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
Haworth’s sub-unit analysis is logically consistent with that rationale because it is based on an understanding (disputed by Plaintiffs) that Specialty Department and Grocery unit employees are paid through a different structure than other store employees. The Court therefore concludes that the inconsistency between Defendant’s focus on “stores” in its briefs versus Dr. Haworth’s focus on store sub-units to be mostly semantic.

The proper test of whether workforce statistics should be viewed at the macro (regional) or micro (store or substore) level depends largely on the similarity of the employment practices, and the interchange of employees, at the various facilities. See Kirkland v. New York State Dept. of Correctional Servs., 520 F.2d 420, 425 (2d Cir.1975) (focus of analysis depends on nature of defendant’s employment practices); Lindemann & Grossman, Employment Discrimination, at 1598, 1723. Here, Dr. Drogin contends that it is proper to conduct the analysis on a regional level because the subjective decision-making in compensation and promotions takes place within parameters and guidelines that are highly uniform, and within a strong corporate culture. Plaintiffs also have shown, as discussed above, that the primary salary decision-makers, Store Managers, experience frequent relocation among the various stores.26

26

Dr. Haworth attempts to frame this issue differently, by

arguing that Plaintiffs assume that Wal–Mart is a

company with “one decision-maker” who sets pay rates

for all employees across the country. Haworth Decl. ¶¶

4, 23. This is an argumentative distortion of Dr.

Drogin’s analysis. It is one thing to conclude that stores

operate pursuant to common policies based on evidence

that a number of core practices have a strong degree of

similarity; it is another to infer the existence of a single

decision-maker from the existence of common policies.

Dr. Drogin did the former and not the latter.

Dr. Haworth challenges Dr. Drogin’s regional focus largely based on a survey taken of Store Managers regarding factors individual managers utilize in setting compensation. Specifically, she argues that aggregating data on a regional level “is not consistent with the variety in the responses of a randomly selected group of Store Managers as to what they believe to be important factors in making pay decisions.” Haworth Decl. ¶ 25. As discussed in this Court’s Order re Motions to Strike, however, this survey is stricken from the record. Accordingly, Defendant’s reliance on this survey to challenge Dr. Drogin’s statistical methods is misplaced.
[12] Defendant also attacks Dr. Drogin’s reliance on regional level statistics because he failed to perform a “Chow” test. This test (named after the statistician who

created it) can be used to analyze whether two or more sets of data may be aggregated as a single sample in a statistical model. Dr. Haworth contends that because Store Managers possess substantial discretion and latitude in setting pay rates, stores act as distinct units; therefore, Dr. Drogin should be required to successfully apply the Chow test before aggregating the data on a regional level.
Defendant does not, however, point to any authority that would require use of a Chow test in this case. Defendant relies on Coates v. Johnson & Johnson, 756 F.2d 524, 542 (7th Cir.1985), a decision on the merits, in which plaintiffs’ expert aggregated (or “pooled”) data over a number of years, rather than performing separate analyses on a yearly basis. The district court found that the weight of the competing expert testimony favored the defendant’s position that the data was more reliable on a yearly basis. The Seventh Circuit emphasized that this was a close decision based on the particular facts of the case, id. at 542, and that “[p]ooling data is sometimes not only appropriate but necessary.” Id. at 541. Defendant of course will be free to rely on the Chow test as a means of attempting to discredit Dr. Drogin at trial. Nothing in Coates, however, mandates a Chow test on the facts of this case.27

27

See also Rossini v. Ogilvy & Mather, 615 F.Supp. 1520,

1522–23 (S.D.N.Y.1985), vacated and remanded on

other grounds, 798 F.2d 590 (2d Cir.1986) (in decision

on merits regarding salary discrimination, the court

found that the Chow test showed statistically significant

differences in regressions run on data before and after

limitations date; nonetheless, the court held that

“categorical rejection” of a single regression combining

all data before and after the limitations date was “not

warranted”); Vuyanich v. Republic Nat’l. Bank, 505

F.Supp. 224, 299, 314 (N.D.Tex.1980), vacated on

other grounds, 723 F.2d 1195 (5th Cir.1984) (“Because

the controversy here [regarding the Chow test] appears

to center on an issue on the frontier of econometrics,

and there seems, at least to a court unschooled in the

intricacies of econometrics, to be genuine conflict

between the experts as to the proper approach, we do

not decide the issue.”).

*158 Nor does the present factual record compel the conclusion that a Chow test must be performed. As noted, Dr. Haworth emphasizes that each store should be treated as a distinct unit, given that individual Store Managers possess substantial latitude in setting pay rates. Plaintiffs also present evidence, however, that the stores, while autonomous in certain respects, do not operate in isolation; rather, managerial discretion and subjectivity are exercised in the context of a strong corporate culture and overarching policies. In such circumstances, there is less justification for treating each store as a distinct unit for purposes of statistical analysis. As such, the Court is not persuaded that Dr. Drogin’s aggregated statistical
20

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
analysis should be rejected because he did not choose to utilize the Chow test.
Moreover, the Ninth Circuit recently held that plaintiffs may rely on aggregated data to present claims of employment discrimination in Paige v. California, 291 F.3d 1141 (9th Cir.2002). In that case, the plaintiffs’ statistician aggregated data from various promotion examinations rather than viewing each examination on its own. Id. at 1148. All non-white plaintiffs were also aggregated as a single group rather than viewing each race separately. Id. The court began by stating that “it is a generally accepted principle that aggregated statistical data may be used where it is more probative than subdivided data.” Id. (citation omitted). After noting that plaintiffs’ theory was that defendant’s employment practices had an identical discriminatory effect upon all members of the class, the court stated that “[r]ight or wrong, [plaintiffs] are entitled to attempt to prove their case” and “plaintiffs may aggregate data ... for comparison purposes.” Id. at 1149.
Clearly, the specific forms of aggregation in Paige are quite different than the geographical aggregation at issue here. The general issue, however, is the same: whether a particular level of generalization should be declared the only legally relevant focal point for statistical analysis, or whether statistical results may be presented at various levels of generality or specificity with the ultimate determination being made after all the evidence is evaluated by the finder of fact. The Ninth Circuit answered this question by holding that statistical analyses run on aggregated data should not be excluded, and may in fact be highly relevant.
Finally, the Court notes that Abram v. United Parcel Service of America, Inc., 200 F.R.D. 424 (E.D.Wis.2001), relied upon by Defendant, does not undermine the use of regional statistics in this case. In Abram, the court denied class certification in part because plaintiffs’ statistics failed to support commonality. Id. at 431. The parties agreed that there was a statistically significant pay gap between African–Americans and Caucasians when the data was considered in the aggregate at the nation-wide level. Id. However, at the district-by-district level, plaintiffs’ expert conceded that there was no statistically significant difference. Id. Furthermore, the court found that plaintiffs’ expert failed to control for non-racial variables, such as education and employment history, which, when properly accounted for even at the nationwide level, led to the conclusion that there was no statistically significant difference among the races. Id. at 431 n. 3. Thus, the Abram decision is essentially a rejection of plaintiffs’ statistical evidence on the merits of that particular case. To the extent that a general proposition can be extracted from Abram, it would be that aggregated data at the nation-wide level is highly suspect, but that aggregation at a district level could be

appropriate. Notably, United Parcel Service divides the country into sixty-five districts, some of which extend to an entire state or bloc of states. Id. at 426. Wal–Mart uses a similar organizational *159 scheme with forty-one regions nation-wide. Since Dr. Drogin analyzed the data at a level similar to the United Parcel Service district range, and controlled for a variety of relevant non-gender factors, his regional analyses is actually consistent with the Abram decision.28

28

Defendant also relies on Lott v. Westinghouse

Savannah River Co., 200 F.R.D. 539 (D.S.C.2000), in

which the court denied class certification. In Lott,

plaintiffs presented mostly “simple grade-school level

analyses” of the data through lay witnesses. Id. at 546.

Plaintiffs also presented the testimony of an expert

witness, which the court does not specifically describe,

but which appears to have been a break-down of racial

disparities in employment in each EEO job category.

Id. at 547. While understandably concluding that

“[p]laintiffs’ statistical reports fail to demonstrate

satisfaction of the commonality criteria because of

critical deficiencies in their composition,” the court also

criticized plaintiffs for aggregating the data across

divisions and classes of employees, reasoning that

“[s]uch aggregated statistics ‘fail to ‘reveal whether

there is a pattern of disparities across the various

decisionmaking units or a reliable sample of them.’ ‘ ”

Id. at 560–61 (quoting Stastny v. Southern Bell Tel. &

Tel. Co., 628 F.2d 267, 278 (4th Cir.1980)). The court

provides no further explanation for its decision

regarding the statistics. Its single conclusory statement

can not be extended to justify Defendant’s proposed

rejection of Dr. Drogin’s aggregated analysis, which as

discussed above, is based on a substantial factual

record.

In sum, the Court is not persuaded that Dr. Drogin’s regional analysis should be rejected for purposes of this motion because it is lacking in probative value. The ultimate question of whether subjective decision-making and a uniform culture contribute to a nation-wide pattern of gender discrimination will, of course, be for a jury to decide. At this stage, however, these factors are apparent enough to support Dr. Drogin’s regional approach as at least a reasonable means of conducting a statistical analysis. See, e.g., Barefield v. Chevron U.S.A., Inc., 44 FEP 1885, 1987 WL 65054 (N.D.Cal.1987) (rejecting challenge to plaintiffs’ statistics at class certification stage when objection went to the merits of the case).29

29

See also Caridad, 191 F.3d at 292–93 (in employment

class action where defendant had subjective decision-

making practices, plaintiffs’ expert conducted multiple

regression analyses on both a company-wide and a

department-by-department basis; the court concluded

that the statistical disparities were “not insignificant,”

that the “statistical dueling” in which defendant sought

21

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
to engage the Court was “not relevant to the certification determination,” and that while “[m]ore detailed statistics might by required to sustain the Plaintiffs’ burden of persuasion [at trial],” they “satisfie[d] the Class Plaintiffs’ burden of demonstrating commonality for purposes of class certification.”).
(b) Selection of Variables [13] Defendant also contends that Dr. Drogin’s statistical analysis should be rejected because it fails to account for a variety of factors, or control elements, that could be responsible for the disparities in question—referred to as “omitted variable bias.” The question of which factors a statistician should account for in any given case is not governed by any bright-line rules; rather, it depends upon the theory and facts of each particular situation.
Here, Dr. Drogin controlled for a number of major variables, including: gender, length of time with the company, number of weeks worked during the year, whether the employee was hiring or terminated during the year, full-time or part-time, which store the employee worked in, whether the employee was ever hired into a management position, job position, and job review ratings. See Drogin Decl. ¶¶ 67–71. Defendant argues, however, that these variables do not fully reflect its compensation decision-making structure, thereby leaving open the possibility that one or more missing variables could explain the gender disparities in question. In particular, Dr. Haworth identifies eleven variables that Dr. Drogin allegedly omitted: hours worked, seniority, leave of absence, full-time/part-time status at hire, recent promotion or demotion, prior grocery experience, pay group, night shift, department, store size, and store profitability. See Haworth Decl. ¶¶ 280–92.
Dr. Haworth’s methodology for determining which variables are relevant was formed in large part by selecting certain decision-making factors identified by Store Managers in a survey. See Haworth Decl. ¶ 20. As previously noted, however, Dr. Haworth can not properly rely on this survey. Even assuming that Dr. Haworth could show that *160 Dr. Drogin omitted one or more relevant factors, this would not justify disregarding Dr. Drogin’s findings for purposes of this motion.
First, as the Ninth Circuit recently emphasized in Hemmings, 285 F.3d at 1188, “the law does not require the near-impossible standard of eliminating all possible nondiscriminatory factors.” Id. (emphasis in original). Rather, “it is clear that a regression analysis that includes less than ‘all measurable variables’ may serve to prove a plaintiff’s case.” Id., quoting Bazemore v. Friday, 478 U.S. 385, 400, 106 S.Ct. 3000, 92 L.Ed.2d 315 (1986).

Given that Dr. Drogin clearly considered a broad array of significant factors, whether he omitted some other, relevant factors—and if so, whether that failure is of sufficient magnitude to discredit his analysis—are questions that should await resolution at trial Hemmings, 285 F.3d at 1183–84, 1187 (multiple regression analysis that controlled for experience and seniority, but did not account for employee qualifications, education, motivations, preferences, and individual fields was relevant and admissible); See Adams v. Ameritech Serv., Inc., 231 F.3d 414, 427–28 (7th Cir.2000) (defendant’s objections that analysis did not control for outside factors went to the weight of the evidence, not its admissibility); Bouman v. Block, 940 F.2d 1211, 1225 (9th Cir.1991) ( “Whether the statistics are undermined or rebutted in a specific case would normally be a question for the trier of fact.”).30 Second, Defendant fails to show, as it must, that “ ‘curing the alleged flaws would also cure the statistical disparity.’ ” Hemmings, 285 F.3d at 1188 (citation omitted).31

30

See also Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d

1470, 1476 (9th Cir.1995); EEOC v. Gen. Tel. Co., 885

F.2d 575, 582 (9th Cir.1989) (concluding that

plaintiff’s statistical analysis was probative of

discrimination despite its failure to include employment

interests); Bruno v. W.B. Saunders Co., 882 F.2d 760,

767 (3d Cir.1989) (affirming district court’s admission

of statistical studies, despite the failure of the studies to

take “account of the minimum qualifications of the jobs

into which promotion or transfer occurred”).

31

Defendant’s citation to Sheehan v. Purolator, Inc., 839

F.2d 99 (2d Cir.1988) does not further its cause. In

Sheehan (1) the plaintiffs’ expert failed to account for

critical factors, (2) the court found that these factors

could in fact explain the gender disparities at issue, and

(3) plaintiffs failed to adduce other significant evidence

to support their claims. Id. at 103. The court also

recognized that even with the serious flaws infecting

plaintiffs’ regression analysis, it would have been

improper to exclude it from evidence. Id.; see also

EEOC v. IBM, Inc., 583 F.Supp. 875, 898 (D.Md.1984)

(the court conducted a merits inquiry at trial, finding

that plaintiffs’ expert failed to account for critical non-

discriminatory variables, including seniority, job level,

and education).

In short, Defendant has shown only that its choice of variables presents an alternative approach; it has not discredited or nullified Dr. Drogin’s results, at least on the record thus far presented. On the contrary, Dr. Drogin’s selection of variables appears to go well above the minimal threshold established by the courts, and thus his analysis is sufficient to raise an inference of discrimination for purposes of this motion.32
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Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

32

This is not to say that the omitted variables would have

no impact on the regression results. For example,

Defendant properly notes that prior grocery experience

is a distinguishing factor which could warrant Store

Managers to use their discretion to award higher pay,

and that more men have this experience than women

(57.4% men versus 46.6% women). See Def.’s Opp’n at

26 n. 15; Oral Arg. Tr. at 190:7–25. On the other hand,

Wal–Mart’s compensation structures make no

distinction between grocery and non-grocery. The

Court simply is not in a position at this stage of the

litigation to definitively resolve this issue. For present

purposes, as discussed above, it is enough that Dr.

Drogin’s analyses account for a sufficient number of

the principal variables to support Plaintiffs’ position.

b. Statistical Evidence Regarding Promotions
(1) Internal Data Analysis
(a) Overview Dr. Drogin conducted a statistical analysis of Wal–Mart’s internal promotion data during the class period, and concluded that, on a company-wide basis, there is a statistically significant shortfall of women being promoted into each of the in-store management classifications over the entire class period. He further found that the pattern of under-promotion into each of the in-store managerial classifications is “consistent in nearly every *161 geographic region at Wal–Mart.” Drogin Decl. ¶ 63. His data essentially supports this conclusion in statistically significant terms for Support Managers and Management Trainees. Id. & Table 26.33

33

The Court observes, however, that Dr. Drogin’s data

shows that while female Co–Managers received fewer

promotions than similarly situated men in 37 of 40

regions across the country, the disparity was of a

statistically significant value in only 22 regions.

Furthermore, while the data shows that for Store

Manager positions women received fewer promotions

than men in 34 of 40 regions, the disparity was of

statistically significant value in only 13 regions. Id.

Although Defendant has not made an issue of the

number of regions lacking a statistically significant

gender differential at the higher level in-store

managerial jobs, the Court became concerned that

this evidence raises the question of whether a nation-

wide class should be narrowed to lower level in-store

managers (Support Managers and Management

Trainees) with respect to promotions. The Court

raised this issue with counsel at oral argument, and

Plaintiffs responded by arguing that the wide-spread

discrimination at the lower levels carries through to

the upper levels, especially where most promotions

are made from within. See Oral Arg. Tr. at 48:23—

49:11. As Plaintiffs also stated in their briefs:

“Obviously, as women have been under-promoted to the first-level management positions, their representation in the feeder pools for store manager is commensurately diminished.” Pls.’ Mot. at 29. The Court is persuaded, at least for purposes of class certification, that the evidence is sufficient to support an inference that the statistically significant disparities identified at the lower levels affect the experience of women seeking promotion at the higher levels. This evidence consists of: (1) the sizable number of regions with statistically significant disparities, (2) descriptive statistics showing a steep drop in female presence the higher one goes in the in-store managerial hierarchy (see section I.B.1.a.(1); Drogin Decl. ¶ 23, Table 7), (3) the significantly longer time it takes women to achieve promotions than men generally (Drogin Decl. ¶ 29); (4) Defendant’s practices affecting promotions—such as broad subjectivity, wide-scale lack of posting, and relocation policies—as discussed above (see sections I.B.1.a.(3) & I.B.1.b.(1)), and (5) anecdotal evidence of discrimination (see section I.B.3). The Court’s determination is further supported by the case law in this area. As the court explained in ruling on the merits in Stender:
The statistical evidence is significant for some positions, but not for others. However, the court finds that the lack of statistically significant disparities in promotions of women to [upper-level jobs] is caused by women being blocked from upper management positions at the lower rungs of the promotional ladder. In addition, the court has considered direct and indirect evidence of discriminatory intent on the part of Lucky managers. In considering plaintiffs’ evidence cumulatively, the court concludes that Lucky’s promotion process is tainted by discretionary decision making and the use of variable and subjective criteria. Accordingly, the court finds that the evidence is sufficient to sustain plaintiffs’ burden of proving disparate treatment in Lucky’s promotion practices as a whole. Stender, 803 F.Supp. at 333; see also McClain v. Lufkin Indus., Inc. 187 F.R.D. 267, 274 (E.D.Tex.1999) (“Discrimination in hiring and advancement, even at the lower levels of the hierarchy, has a rippling effect upwards through that hierarchy.”) (citation omitted); Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608 (5th Cir.1983).
Dr. Drogin also studied the time that it has taken employees to reach in-store management positions. He found, and Defendant does not dispute, that it consistently takes women longer than comparable men to reach the higher management levels. On average, it took women 4.38 years from date of hire to be promoted to assistant manager, while men took 2.86 years. It took 10.12 years for women to reach Store Manager, compared with 8.64 years for men. See Drogin Decl. ¶ 29.
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Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
Dr. Haworth rejects Dr. Drogin’s approach and concludes, using her own methodology, that women have been selected for all in-store management positions at a rate substantially equivalent to the rate at which they apply (or the rate at which they can be deemed to have applied). In fact, she concludes that women are promoted at a higher rate than predicted by their representation among those who applied. See Haworth Decl. ¶ 139. To the extent that some gender differentials exist, she contends that they are attributable to differing job aspirations and interests between men and women which exist in the general labor force and cannot be blamed on Wal–Mart.

(b) Defendant’s Challenge to Dr. Drogin’s Choice of Applicant Pools Defendant’s principal challenge to Dr. Drogin’s analysis is that it fails to rely solely on actual applicant flow data. This defect, Defendant argues, renders Dr. Drogin’s methodology fatally flawed. As explained below, however, this Court concludes that Dr. Drogin’s *162 analysis is sufficiently probative to support a finding of commonality.

Both parties’ experts attempt to compare the number of women hired into different positions with the number of women applicants seeking advancement to those positions. In circumstances where (a) the employer notifies employees of openings through a neutral job posting or other system, (b) allows all interested employees to apply, and (c) maintains complete records, the actual applicant flow data (i.e. the number of employees actually applying for the job) exists and is recognized as the best basis for making this comparison. See Paige, 291 F.3d at 1147. Where, however, openings are not posted, or where the system is poorly documented or biased, it is impossible to determine with certainty how many employees would have applied for openings; accordingly, statisticians look for the next best source available to estimate what the actual applicant flow would have been. See id. at 1145.

The parties agree that the actual applicant flow data for promotions at Wal–Mart during the class period is limited to the following: (1) from 1998 to 2002 the company conducted numerous postings for the lowest level hourly management position (which is not part of the class), and a very limited number of postings for Support Manager,34 (2) from 1998 to 2002, most Store Manager positions were posted,35 and (3) in January and April–May 2003, Wal–Mart conducted a limited posting for the Management Trainee position.36 As such, the data contains the following substantial gaps:

34

From the inception of the class period on December 27,

1998 through September 30, 2002, Wal–Mart posted

roughly 6,800 job openings for Support Manager. Approximately 41,000 applications were submitted for these openings, and 46.1% of the applicants were women. See Haworth Decl. ¶ ¶ 12, 84.

35

Between December 27, 1998 and October 17, 2002,

Wal–Mart Management Career Selection (MCS)

system documented over 46,000 applications to roughly

4,400 salaried management positions. See Haworth

Decl. ¶ 119. Most of these documented moves were to

Store Manager positions. Id. at ¶ 128 & Table entitled

“Comparison of Moves, Management Career Selection

Data versus Global PeopleSoft Data from December

27, 1998 through March 8, 2002.” Most of the moves to

other salaried management positions were not

documented by the MCS system. Id.

36

Wal–Mart conducted a seven-day company-wide

posting in January 2003 for admission to the

Management Trainee position. Roughly 30,000

candidates applied, of which 44% were female. See

Haworth Decl. ¶¶ 16, 72, 96. Approximately 1,400

positions were filled through this posting. See Drogin

Reply Decl. ¶ 11. Wal–Mart posted job vacancies for

the Management Trainee position again in April–May

2003, although this posting was limited to Wal–Mart

Discount Stores and SuperCenters. This posting

generated approximately 11,500 applicants, of which

41% were female. See Haworth Decl. ¶ 72 & n. 33,

103.

(1) There is no documented job applicant data for 80 percent of the actual promotions to the position of Support Manager. See Drogin Decl. ¶ 44; Drogin Reply Decl. ¶ 6.
(2) Prior to January 2003, there is no documented job applicant data for entry level salaried management positions.
(3) The amount of Management Career Selection (MCS) information on Assistant Manager vacancies (less than 1% of the promotions are documented) and Co–Manager vacancies (less than 3% are documented) is negligible. See Haworth Decl. ¶ 128. Furthermore, the MCS system contains no data for any management positions in Sam’s Club stores. See Drogin Decl. ¶ 45.
Predictably, the experts draw opposite conclusions from the limited amount of actual applicant-flow data available. Dr. Haworth argues that the data, while limited, is nonetheless sufficient to justify an extrapolation for all job openings during the entire class period. In contrast, Dr. Drogin concludes that Wal–Mart’s job posting systems “provide no useful data for analyzing promotions
24

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

into the upper level hourly supervisory, and store management positions.” Drogin Decl. ¶ 43. Therefore, he looked to what he considered the next best source to estimate actual applicant flow by tabulating “the incumbents in historical feeder jobs for [each] promotion.” Id. at ¶ 48.
While Defendant vigorously attacks Dr. Drogin’s approach, it is well recognized that where actual applicant flow data is inadequate or unavailable, other measures of applicant *163 flow—including but not limited to “feeder pools”—are deemed acceptable so long as they are used in a reliable manner. See R. Paetzold and S. Willborn, The Statistics of Discrimination Using Statistical Evidence in Discrimination Cases, §§ 4.02—4.04 (Oct.2002). In Hemmings v. Tidyman’s, Inc., for example, the Ninth Circuit recently affirmed using feeder pools where the defendant fills its higher management positions through internal promotions. 285 F.3d at 1185–86 (finding that “the potential applicant pool—and thus the appropriate comparison pool—for promotions to upper and middle management jobs at Tidyman’s is comprised of the current employees in lower management positions”).37

37

Similarly, in Stender, 803 F.Supp. at 333–34, the court

accepted the same type of feeder pool methodology

used by plaintiffs here. In fact, the Stender plaintiffs

employed Dr. Drogin, and the defendant employed Dr.

Haworth. The court found that the defendant’s bid data

was incomplete, and that it was therefore appropriate

for Dr. Drogin to take into account the historical pattern

of movement between jobs at Lucky Stores by

constructing feeder pools for each target job. Id. at

295–96. Specifically, in Stender, Dr. Drogin compared

the movement of male and female employees out of

low-level clerk positions and into various mid-level

apprentice positions, and found a shortfall of women

for each set of promotions. Id. at 296. Dr. Drogin used

the same control variables as in his Wal–Mart analysis,

i.e. year of promotion, feeder job, and store (although

the geographic variable in Wal–Mart is sometimes the

district rather than store). Id. at 296 n. 8. Dr. Haworth

revised the feeder pool analysis by using a reference

adjustment factor, based on defendant’s analysis of

gender differentials in interest levels, and found no

evidence of discrimination. Id. at 313. Judge Patel

credited Dr. Drogin’s analysis and rejected Dr.

Haworth’s. Id.

In Butler I, 1996 WL 421436, the court granted class

certification, finding that plaintiffs’ statistical

evidence created a common issue of law and fact. In

a subsequent order denying defendant’s motion for

summary judgment, the court described plaintiffs’

evidence as including expert testimony by Drs.

Drogin and Bendick in which feeder pool analyses

were used to measure gender disparities in

promotion. Butler v. Home Depot, Inc., (Butler II),

1997 WL 605754, at *8 (N.D.Cal.1997). The court

noted that Home Depot primarily promotes from

within, and the court approved the use of the feeder

pools, finding that they were of a kind and degree from which causation may reasonably be inferred. Id. See also Pitre v. Western Elec. Co., 843 F.2d 1262 (10th Cir.1988) (approving reliance on feeder pools); Shidaker v. Tisch, 833 F.2d 627, 631 (7th Cir.1986) (same); Paxton v. Union National Bank, 688 F.2d 552, 563–65 (8th Cir.1982) (same); Smith v. Xerox Corp., 196 F.3d 358, 370–71 (2d Cir.1999) (approving feeder pool methodology but requiring very careful construction of pools that compare coworkers who competed directly against each other to receive a benefit).

Notably, Wal–Mart fails to cite any authority that would require Dr. Drogin to rely solely on extrapolations from grossly incomplete actual applicant flow data. Defendant cites to General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) for the proposition that “[c]ourts permit extrapolation for the liability period from recent applicant flow data, absent proof that the level of interest had materially changed.” Def’s Opp’n at 40 & n. 25. General Electric, however, merely states the general proposition that experts commonly extrapolate from data, and it made this unremarkable statement in the context of a personal injury case in which the expert extrapolated cancer causality from studies on mice to causation in humans. 522 U.S. at 146, 118 S.Ct. 512.
Defendant’s reliance on Stout v. Potter, 276 F.3d 1118, 1123 (9th Cir.2002) and Paige, 291 F.3d at 1147, is equally misplaced. In Stout, an employment case, the court was presented with actual applicant flow data for the entire time period at issue, and therefore never had occasion to address the situation in which such data is incomplete. In Paige, the court had access to both internal and external applicant flow data, and it stated a preference, given the particular facts of the case, for the internal data. Significantly, Paige recognized that the preference for actual applicant flow holds true “only if there is not ‘a characteristic of the challenged selection device that makes use of the actual pool of applicants or eligible employees inappropriate.’ ” 291 F.3d at 1145 (quoting Moore v. Hughes Helicopters, Inc., 708 F.2d 475, 482 (9th Cir.1983)). A widespread failure to use the “selection device” of job posting could certainly make the preference for applicant flow “inappropriate.”38

38

Defendant also cites Capacchione v. Charlotte–

Mecklenburg Schools, 57 F.Supp.2d 228, 247 n. 16

(W.D.N.C.1999), aff’d in part, rev’d in part, vacated in

part, by Belk v. Charlotte–Mecklenburg Bd. of Educ.,

269 F.3d 305 (4th Cir.2001), a school desegregation

case in which the court was presented with over twenty

years of complete enrollment data. The court approved

an extrapolation from that data to estimate the

enrollment during a previous eight year period. Id. The

use of extrapolation in that case was unchallenged and

25

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
the court merely found it to be a reasonable method that was the best means available in the situation. Id.
In another case relied upon by Defendant, United States v. County of Fairfax, Va., 629 F.2d 932, 940 (4th Cir.1980), a decision regarding the merits of a discrimination action, the court held that actual applicant flow data could be used as a basis for extrapolation for years in which such data had been destroyed. However, in that case the court determined that the only alternative means of estimating applicant flow would be to use a zip code analysis (which is based on census information), and that the flaws in using that data outweighed the flaws inherent in the extrapolation method. Id. Indeed, the courts generally are highly suspect of census data for workplace comparison since applicant pools often are far narrower than the general population. Here, in contrast, Dr. Drogin’s availability pools are drawn from internal data, and therefore do not suffer from the same problem as census data. Finally, defendant again analogizes to Donaldson, 205 F.R.D. 558, but again the analogy fails. In Donaldson, the court found that “plaintiffs’ own statistics belie the existence of [ ] a pattern [of discrimination].” Id. Indeed, the Donaldson plaintiffs’ expert’s initial study showed no pattern of discrimination in many significant areas. Id. at 567. Plaintiffs presented the court with an entirely new set of statistics in their reply materials, but they were based on the same raw data with different calculations. Id. Given these circumstances, it is no surprise that the court found that plaintiffs’ statistical analysis deserved no weight. Id.
*164 At bottom, Defendant fails to grapple with the basic fact that any approach—whether it is extrapolation from limited data (as Defendant prefers) or use of comparative data (as Plaintiffs prefer)—will have a degree of uncertainty given the admitted lack of actual data for most of the positions at issue due to the company’s wide-scale lack of job posting. Defendant’s assertion that its approach is necessarily superior does not withstand scrutiny. Rather, Defendant’s arguments, which go to the weight of the evidence, merely highlight the presence of a significant issue affecting all class members which supports, rather than defeats, granting class certification. Moreover, while a jury may or may not ultimately find Dr. Drogin’s approach more probative than Dr. Haworth’s, it is at least reasonable. As such, Dr. Drogin’s method is sufficient to create an inference of discrimination for purposes of this motion.
(2) External Benchmarking Data Analysis Plaintiffs also buttress their position that there is a common question regarding Defendant’s alleged discriminatory policies toward the class with the benchmarking analysis of a labor economist, Dr. Marc

Bendick. In contrast to Dr. Drogin and Dr. Haworth, who analyzed internal Wal–Mart data to determine whether promotion disparities exist and, if so, whether they are attributable to gender discrimination, Dr. Bendick looked outside of Wal–Mart to other large retailers for his data source. Specifically, Dr. Bendick compared, or “benchmarked,” Wal–Mart against twenty other large general merchandise retailers by comparing workforce data provided by the companies to the Equal Employment Opportunity Commission (“EEOC”). The practice of benchmarking one company’s performance against its competitors is a standard management technique used throughout the private sector and by Wal–Mart itself. See Bendick Decl. ¶ 14 (citing Peterson Depo.).
The type of benchmarking applied here addresses the issue of labor supply, i.e. the availability of female employees who are qualified and interested in management positions. The purpose of this analysis is 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 applied at Wal–Mart if given the opportunity. As Dr. Bendick explains: “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.” Id. at ¶ 16.
Dr. Bendick used data from the EEOC to compare Wal– Mart against twenty large nation-wide retailers.39 He found that a shortfall *165 in female managers was present in 79.5 percent of all Wal–Mart stores. Id. at ¶ 43. He concluded that “[w]ith a shortfall present in four out of five stores, it is virtually impossible for the pattern to be geographically localized.” Id. He further concluded that while the in-store managerial workforce at the comparison stores was 56.5 percent female, it was only 34.5 percent female at Wal–Mart. Dr. Bendick determined that this differential is highly statistically significant (47 standard deviations).

39

The data is compiled by the EEOC from a mandatory

survey of the nation’s largest private firms, and the

results are contained in EEO–1 reports, which

essentially form a census of the workers at those firms.

Dr. Bendick selected the comparator firms by looking

for similar large retail companies in the EEO–1 reports.

He used two criteria: (1) the firm was in a retail

industry focusing on building material and garden

supplies, general merchandise, food store, automotive,

apparel, furniture, and miscellaneous retail, excluding

eating and drinking places; (2) the firm had at least 100

separately reporting establishments with at least 100

employees each. Twenty firms met his criteria. See

Bendick Decl. ¶ 21. The identities of these companies

in the EEO–1 reports are anonymous, but based on the

26

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
limited number of companies of such large size in the country, Dr. Bendick was able to surmise that the list of twenty includes Target, Costco, K–Mart, and others. Id. at ¶ 23.

Defendant argues that Dr. Bendick was biased in conducting his benchmarking analysis by “cherrypicking” the comparator companies. However, his criteria for selecting the comparators appears to be reasonable, and there is no evidence that he left out companies that fit his criteria.40 Defendant also points to its own alternative benchmarking analysis, which adjusted the criteria to include small and medium sized companies. Defendant will be free to present this alternative model to the jury. It fails to demonstrate, however, that Dr. Bendick’s approach is so flawed as to lack probative value. Again, the question of which approach should ultimately prevail is for the jury, and Defendant’s attempt to litigate this issue now is premature.

40

Defendant also argues that Dr. Bendick’s analysis is

methodologically flawed. It contends that Dr.

Bendick’s sample size is too small, in that he excludes

all small employers. However, the analysis covers

twenty firms with over 1.8 million workers in nearly

10,000 establishments nation-wide. See Bendick

Rebuttal Decl. ¶ 12. Furthermore, if Dr. Bendick had

compared Wal–Mart to small employers, he would

have been subject to criticism for comparing apples to

oranges.

In a similar vein, Defendant argues that Dr. Bendick

excluded approximately 96 percent of the workforce

holding management jobs in the retail sales field.

However, in the four percent he did include there are

over 170,000 managers. Moreover, these are the

most applicable comparators in that they are

managers of large retail firms. In other words, Dr.

Bendick’s selection is consistent with the reasonable

approach of comparing Wal–Mart to “other large

chain[s] of large stores selling a large range of

goods.” Bendick Rebuttal Decl. ¶ 14.

Based on his determination that Wal–Mart has a shortfall of women being promoted to in-store management positions, Dr. Bendick also concludes that the shortfall cannot be explained in terms of lack of qualifications, interest, or availability among female employees. This conclusion appears to follow logically from the analysis of the data. While it is not for the Court at this stage to find whether or not the analysis and conclusion are correct, the inference is appropriately raised. Accordingly, the Court finds that Dr. Bendick’s analysis further supports Plaintiffs’ showing of commonality by providing additional evidence which is sufficient, for purposes of this motion, to raise an inference of class-wide discrimination.

3. Anecdotal Evidence of Discrimination Circumstantial and anecdotal evidence of discrimination is commonly used in Title VII pattern and practice cases to bolster the statistical proof by bringing “the cold numbers convincingly to life.” Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); Rudebusch v. Hughes, 313 F.3d 506, 517 (9th Cir.2002). Here, plaintiffs have submitted declarations from each of the class representatives, as well as 114 declarations from class members around the country. The women testify to being paid less than similarly situated men, being denied promotion or being delayed in promotion in a disproportionate manner compared with similarly situated men, working in an atmosphere with a strong corporate culture, and being subjected to various individual sexist acts. See, e.g., Scott *166 Decl. ¶¶ 8, 9, 12 (male Store Manager told declarant that “[m]en are here to make a career and women aren’t. Retail is for housewives who just need to earn extra money”); S. Hall Decl. ¶ 2 (after seeking transfer to Hardware, male Support Manager stated: “We need you in toys ... you’re a girl, why do you want to be in Hardware?”); Page Decl. ¶ 10 (Store Manager gave sporting goods department manager position to male because she “needed a man in the job”). This anecdotal evidence, in combination with the other evidence previously discussed, further supports an inference that Defendant’s policies and procedures have the effect of discriminating against Plaintiffs in a common manner.
4. Conclusion re Commonality In sum, 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 corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence raises an inference that Wal–Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner. While Defendant raises numerous challenges to this evidence, they are insufficient to defeat Plaintiffs’ showing of commonality; rather, the objections are predominantly of the type that go to the weight of the evidence, and thus should properly be addressed by a jury considering the merits.
C. Typicality [14] [15] Typicality requires that the named plaintiffs be
27

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

members of the class they represent and “ ‘possess the same interest and suffer the same injury’ ” as class members. Falcon, 457 U.S. at 156, 102 S.Ct. 2364 (citation omitted).41 The named plaintiffs’ claims need not be identical to the claims of the class to satisfy typicality; rather, the claims are typical if they are “reasonably coextensive with those of absent class members.” Staton, 327 F.3d at 957, quoting Hanlon, 150 F.3d at 1020. It is sufficient for plaintiffs’ claims to “arise from the same remedial and legal theories” as the class claims. Arnold, 158 F.R.D. at 449 (citations omitted); see also McClain v. Lufkin Indus., Inc., 187 F.R.D. 267, 281 (E.D.Tex.1999) (quoting Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 426 (5th Cir.1997)) (typicality is met where “[i]n the event the class members in this case were to proceed in a parallel action, they would advance legal and remedial theories similar, if not identical, to those advanced by the named plaintiffs”). The Ninth Circuit interprets typicality, like it does commonality, permissively. Staton, 327 F.3d at 957; Hanlon, 150 F.3d at 1020.

41

Just as commonality and typicality tend to merge, so do

typicality and adequacy of representation. See

Newberg, Vol. I at 411–12. The adequacy test is

broader, however, in that a representative may have

typical claims but otherwise have an irreconcilable

conflict with the class. Id.

[16] Defendant contends that the named plaintiffs are not sufficiently “typical” for two reasons: (1) the named plaintiffs have not worked in the upper levels of in-store management and therefore cannot represent those managers, and (2) each of the plaintiffs’ claims is too individual-specific.

1. Whether the Named Plaintiffs Can Represent All In– Store Managers There is no dispute that the named plaintiffs are reasonably co-extensive with the hourly class members since almost all of the named plaintiffs hold hourly positions. Defendant, argues, however, that the named plaintiffs are not typical of all female in-store managers because only one named plaintiff—Christine Kwapnoski—holds a salaried management position, and it is a lower level position at a Sam’s Club. As such, Defendant emphasizes, “[n]o Plaintiff ever occupied a salaried position at a Wal–Mart Discount Store, Neighborhood Market or Supercenter.” Def.’s Opp’n at 9.42 As discussed earlier, *167 however, the management structure at Sam’s Club is very similar to the structure at the other Wal–Mart divisions. Therefore, there is very little practical import to this argument.

42

After the hearing on the Motion for Class Certification,

Defendant filed two separate ex parte applications

further challenging plaintiff Kwapnoski’s status as a

class representative for female in-store managers. See

Defendant’s Ex Parte Applications filed January 5 and

March 25, 2004. In both Applications, defendant points

out that Ms. Kwapnoski participated as a claimant in a

separate lawsuit filed in state court challenging Wal–

Mart and Sam’s Club’s overtime policies. In the

context of the state suit, she filed a claimant response

form indicating that in both of her managerial positions

she spent “more than one-half of [her] time performing

the same type of non-managerial tasks as [her] hourly

subordinates.” Keane Decl. in Support of Defendant’s

Ex Parte Application, Exh. A at 4. The Court finds that

this statement does not undermine or limit Ms.

Kwapnoski’s representative status. Whether Wal–Mart

chose to have plaintiff (and other managers) performing

hourly tasks is of no import to the typicality analysis,

regardless of its relevance to a wage and hour analysis.

The single relevant fact here is that during the span of

this action, Ms. Kwapnoski held jobs that Wal–Mart

itself designated as salaried managerial positions.

Further, Wal–Mart’s recent re-designation of plaintiff’s

positions as non-exempt does not alter, and cannot

erase, this historical fact. Thus, Defendant’s ex parte

applications are denied.

Moreover, there is no requirement that plaintiffs have a class representative for each management category that they seek to represent. See Taylor v. Union Carbide Corp., 93 F.R.D. 1, 6 (S.D.W.Va.1980). It is sufficient that one of the named plaintiffs is a manager, even if her position is lower than the top rung. See Hartman, 19 F.3d at 1471 (employee can challenge discrimination in “different job categories where the primary practices used to discriminate in the different categories are themselves similar. While it may be prudent to have the class divided into sub-classes represented by a named plaintiff from each of the differing job categories, it would not be necessary to the validity of the class certification to do so.”); Meyer v. Macmillan Publ’g Co., 95 F.R.D. 411, 414 (S.D.N.Y.1982) ( “[T]he fact that the jobs performed by the named plaintiffs are, in some sense, unique, is not a bar to their being class representatives. If it were, no class of professional employees could ever be certified.”); 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 promotional opportunities at issue, or the differing qualifications of plaintiffs and class members.”). Furthermore, the class representatives include several women who claim that they were denied positions into management. If Plaintiffs sought to represent all levels of management, including high-level managers in the Home Office, there would be greater cause for concern. However, since the range of managers in the class is limited to those working in the stores, it is not a very broad class and a named plaintiff occupying a lower level salaried in-store management position is
28

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
sufficient to satisfy the “permissive” typicality requirement. Staton, 327 F.3d at 957.

2. Degree of Individual Specificity for Each Claim Defendant also argues that the named representatives’ claims are not typical of the class because each claim in this case is too “individual-specific.” To support this contention, Defendant cites various class member declarations to show the fact-specific nature of each of their claims. See Def.’s Opp’n at 7 n. 9. Some degree of individualized specificity must be expected in all cases, however, and it does not necessarily defeat typicality. See Staton, 327 F.3d at 957 (“representative claims are ‘typical’ if they are reasonably coextensive with those of absent class members; they need not be substantially identical.”); Adams v. Pinole Point Steel Co., 1994 WL 515347, at *7 (N.D.Cal. May 18, 1994); Wofford v. Safeway Stores Inc., 78 F.R.D. 460, 488 (N.D.Cal.1978). Rather, the court must consider whether the named plaintiffs suffered injury from a specific discriminatory practice of the employer in the same manner that the members of the proposed class did, and whether the named plaintiffs and the class members were injured in the same fashion by a general policy of employment discrimination. Staton, 327 F.3d at 957. Thus, even where individual employees in different stores with different managers received different levels of pay and were denied promotion or promoted at different rates, so long as the discrimination they allegedly suffered occurred through an alleged *168 common practice—e.g. excessively subjective decision-making in a corporate culture of uniformity and gender stereotyping—their claims are sufficiently typical to satisfy Rule 23(a)(3).43

43

Another approach to this issue is to ask whether the

adjudication of the class representatives’ claims will

necessarily involve the determination of common

questions affecting the class. See Newberg, Vol. I at

387. Here, while the particular disparities in levels of

pay and denial or delay in promotion will be specific to

each class representative, each one will have to link

those disparities to discrimination. The linkage for each

and every plaintiff is the common theory of excessive

subjectivity affected by a biased corporate culture and

the common statistical data showing a pattern and

practice of discrimination. The Court finds that the

legal claims made by the representative plaintiffs are

not idiosyncratic; rather, they are typical of the claims

available to all class members.

D. Adequacy of Representation [17] The fourth and final Rule 23(a) requirement—
adequacy—requires (1) that the proposed representatives
do not have conflicts of interest with the proposed class

and (2) that plaintiffs are represented by qualified counsel. Hanlon, 150 F.3d at 1020. The adequacy of representation requirement serves two functions. Like the commonality and typicality requirements, it assures that shared interests between the representative plaintiffs and the class as a whole are present, but it also functions to ensure the absence of conflicts. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625–26, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). To serve as representatives, the named plaintiffs must have common interests with class members and a lack of interests adverse to class members. They must also vigorously prosecute the interests of the class through qualified counsel. East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 403–05, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977). This standard requires similarity, not identity, of interests. Nor does it preclude some unique interests; it only precludes adverse interests.
1. Conflicts of Interest [18] Defendant argues that certification should be denied because there is a conflict of interest among female instore managers who are both plaintiff class members and decision-making agents of the Defendant. As the Ninth Circuit made clear in Staton, however, courts need not deny certification of an employment class simply because it may include both supervisory and non-supervisory employees. In Staton, objectors to a class-wide settlement similarly argued that a conflict arose from the fact that “the class cuts across the levels of authority of [the company] employees and that, in particular, some class members supervise some of their fellow class members.” 327 F.3d at 958. The court rejected a per se rule, noting that the issue must be resolved in the context of the particular case and circumstances. Id. The court then concluded there was no conflict in that case given that (1) the objectors had failed to identify a “substantive issue for which there is a conflict of interest between two or more sets of employees,” (2) the named plaintiffs included both supervisors and non-supervisors, and (3) the requested relief applied throughout the class. Id. at 958–59.
Here, as in Staton, the named plaintiffs include persons who have worked as both supervisory and nonsupervisory employees, and the requested injunctive and lost pay relief applies throughout the class. Further, the alleged discriminatory policies affect supervisory and non-supervisory employees alike. Accordingly, the Court is not persuaded that there are any substantive conflicts between supervisory and non-supervisory employees that would preclude certification. See also Shores, 1996 WL 407850, *8 (finding no inherent conflict where class included supervisory and non-supervisory employees since “there is nothing to suggest that the elimination of sex discrimination for non-managerial employees would adversely affect managerial employees and vice versa”); Butler I, 1996 WL 421436, at *4 (noting that any
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Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

potential conflict created by supervisors and nonsupervisors being members of the same class is cured by bifurcating the trial into liability and remedial phases).
Wal–Mart also conjures a scenario where “at trial we [would] have the very real specter of class counsel crossexamining a woman he represents, trying to rebut her testimony *169 that her subordinates were fairly compensated, attacking her credibility.” Def.’s Opp’n at 31 (emphasis in original). It is unlikely, however, that many, if any, such scenarios would occur given that the liability phase of the trial properly focuses on the existence of a general pattern and practice of discrimination, not individual employment decisions. See section II.B.1. Defendant’s speculation on this point does not warrant a finding that the named plaintiffs can not adequately represent the class.
More fundamentally, the fact that some individual female managers may disagree with the allegations in Plaintiffs’ complaint, and testify in favor of Wal–Mart, does not create any significant conflict between supervisory and non-supervisory employees. Rather, it just reflects the fact that in any employment class there may be individuals that support the employer’s position. Such individual predilections, however, do not create a substantive conflict between supervisory and non-supervisory employees as a group.44

44

The Court is aware of a few district court decisions in

which class actions have been rejected or narrowed on

the ground of a conflict of interest where the class

included supervisors who might have made

discriminatory decisions. However, none of these cases

provide a persuasive analysis of how this conflict

would cause a problem in actuality. See Donaldson,

205 F.R.D. at 568 (class action denied in part because

of an “insurmountable” conflict between supervisor

class representatives who made the decisions and the

other members); Abram, 200 F.R.D. at 433 (in denial of

class certification, court mentioned that three of the

named plaintiffs were promoted to central managers

and had a stake in proving they do not discriminate).

Finally, Defendant points to Wagner v. Taylor, 836 F.2d 578, 595 (D.C.Cir.1987), a Title VII case in which the court found inadequate representation because the named plaintiff, who was a supervisor, purported to represent a broad class that included non-supervisory employees. In Staton, the Ninth Circuit distinguished Wagner because “Wagner was both a senior executive and the only representative of an attempted class of all grade GS–9 and above African–American employees of, and applicants to, the Interstate Commerce Commission.” Staton, 327 F.3d at 958. Thus, while Wagner cautions against having a single senior executive representing a broad range of supervisory and non-supervisory employees, the multiple

named plaintiffs here provide significantly broader representation for the class.
2. Qualified Counsel [19] Plaintiffs have submitted declarations that sufficiently establish their counsel’s abilities to handle a case of this nature and magnitude. Defendant does not contest the adequacy of class counsel. Based on the vigorous and skilled prosecution of this action thus far, as well as counsel’s past experience with complex employment litigation, the Court finds that Plaintiffs’ counsel have demonstrated their willingness, capacity, and dedication to pursuing these claims. Pursuant to the recently added subsection (g)(1)(C)(I) to Rule 23 (effective December 1, 2003), the Court also specifically finds as follows: (1) Plaintiffs’ counsel have been diligent in identifying and investigating all potential claims in this litigation; (2) Plaintiffs’ counsel individually and collectively have a wealth of extensive experience in handling class actions and other complex civil rights litigation; (3) plaintiffs’ counsel have proved themselves to have an excellent grasp of employment discrimination and class action law; and (4) Plaintiffs’ counsel have the resources to commit to fully representing the class throughout this litigation.
E. Conclusion Without making any findings on the merits, the Court concludes, having reviewed the voluminous evidence provided by the parties, that Plaintiffs have come forth with sufficient evidence to satisfy the requirements of numerosity, commonality, typicality, and adequacy of representation, as set forth in Rule 23(a). Accordingly, the Court now considers whether plaintiffs can also satisfy the elements of Rule 23(b).
II. Maintainability Under Rule 23(b) In addition to satisfying the prerequisites of Rule 23(a), Plaintiffs must also demonstrate that their proposed class is maintainable under one of the subsections of *170 Rule 23(b). In this case, Plaintiffs rely on subsection (b)(2), which applies if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”
As noted in the introduction, Congress added subsection (b)(2) in 1966 “ ‘primarily to facilitate the bringing of class actions in the civil rights area.’ ” In re Monumental Life, 365 F.3d at 417 n. 16 (citation omitted). Indeed, this provision was written with employment discrimination specifically in mind. “[T]he drafters of Rule 23 specifically contemplated that suits against discriminatory
30

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
hiring and promotion policies would be appropriately maintained under Rule 23(b)(2).” Domingo v. New England Fish Co. (Domingo II), 727 F.2d 1429, 1443 n. 11 (9th Cir.1984); see also Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir.1980); Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 250 (3rd Cir.1975).
Here, Plaintiffs allege that Wal–Mart has acted or refused to act—through its discriminatory practices—on grounds generally applicable to the proposed class, which Plaintiffs seek to remedy through injunctive relief and the recovery of lost pay and punitive damages. Wal–Mart does not dispute that the claims for injunctive relief and lost pay readily fall within the ambit of a(b)(2) class action. Indeed, it is well established that lost pay is recoverable as an equitable, make-whole remedy in employment class actions notwithstanding its monetary nature. See, e.g., Gotthardt v. Nat’l R.R. Passenger Corp., 191 F.3d 1148, 1152–55 (9th Cir.1999); Eubanks v. Billington, 110 F.3d 87, 92 (D.C.Cir.1997) (“[I]t is not uncommon in employment discrimination [ (b)(2) ] cases for the class also to seek monetary relief in the form of back pay or front pay.”); Salinas v. Roadway Express, 735 F.2d 1574, 1576 (5th Cir.1984).
Defendant argues, however, that inclusion of the claim for punitive damages renders this case unsuitable for certification under section (b)(2). Defendant further contends that this case is not maintainable as a class action under (b)(2)—or any other subsection—because the size of the class makes the case wholly unmanageable. Each of these issues is addressed in turn.
A. Inclusion of Claim for Punitive Damages [20] In 1991, Congress amended Title VII to permit plaintiffs to recover punitive damages in certain circumstances. Specifically, such damages are recoverable in cases of intentional discrimination if the plaintiff proves that the employer “engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1).
While plaintiffs have foregone 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.” Pls.’ Mot. at 44. Defendant argues, however, that Plaintiffs’ claim for punitive damages is incompatible with a(b)(2) action because such damages are not incidental to, and would in fact overwhelm, Plaintiffs’ claims for injunctive relief.
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.” Id. at 947, 950; see also Probe v. State Teachers’ Ret. Sys., 780 F.2d 776, 780 (9th Cir.1986). In making this determination, courts should examine the “specific facts and circumstances of each case,” and attempt to ascertain the “intent of the plaintiffs in bringing suit.” Molski, 318 F.3d at 950. In Molski, the injunctive relief “appeared to be the primary goal in the litigation,” and thus the district court properly found that injunctive relief was the predominant remedy sought by the class. Id.

Notably, Molski expressly rejects using a *171 bright line distinction between incidental45 and non-incidental damages to determine if monetary relief predominates, reasoning that such an approach would “nullify the discretion vested in the district courts through Rule 23.” Id. Rather, it endorses the case-by-case approach described above. Id. Accordingly, Defendant’s contention that this case cannot be certified under (b)(2) because the punitive damages sought are not “incidental” is misplaced. As Molski also makes clear, the predominance test turns on the primary goal of the litigation, not the potential size of a punitive damage award. Id. Accordingly, Defendant’s focus on the possible size of a such an award is also misplaced. Indeed, focusing 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 purposes of Title VII.

45

Incidental damages are defined as damages that “ ‘flow

directly from liability to the class as a whole on the

claims forming the basis of the injunctive or declaratory

relief.’ ” Molski, 318 F.3d at 949 (emphasis in original)

(citation omitted).

This Court has little difficulty concluding that here the equitable relief sought predominates over the claim for punitive damages. Plaintiffs’ claims for injunctive and declaratory relief, if successful, would achieve very significant long-term relief in the form of fundamental changes to the manner in which Wal–Mart makes its pay and promotions decisions nationwide that would benefit not only current class members, but all future female employees as well. These benefits would be both monetary—in the form of increased class-wide remuneration—and non-monetary—in terms of increased job opportunities. See Young v. Pierce, 544 F.Supp. 1010, 1028 (E.D.Tex.1982) (“[W]hen the relief sought is injunctive relief, the benefits...would inure not only to known class, but also to a future class of indefinite size.”).
31

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
Recovery of lost pay for all injured class members would result in additional substantial equitable relief to the class. Against this backdrop, Plaintiffs’ claim for punitive damages—which, by its nature, is subject to more demanding proof requirements, and thus inherently more speculative—appears secondary in nature.
The named class representatives also affirm that their central motivation for participating in this action is to improve opportunities for women at Wal–Mart. Betty Dukes, for example, states that “[m]y 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 equitable treatment of female employees, and to ensure women receive equal pay.” Dukes Decl. ¶ 20. Edith Arana similarly avers that “[m]y 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.” Arana Decl. ¶ 3. See also Surgeson Decl. ¶ 13; Gunter Decl. ¶ 3; Kwapnoski Decl. ¶ 23.
Given all of the above, the Court is satisfied that Plaintiffs’ claim for punitive damages is secondary to their primary goal of achieving broad equitable relief. Accordingly, inclusion of this claim does not preclude certification of this case under Rule 23(b)(2). Molski, 318 F.3d at 947–50. See also Robinson v. Metro–North Commuter R.R. Co., 267 F.3d 147, 164 (2nd Cir.2001) (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); Butler I, 1996 WL 421436, *1, *5 (rejecting defendant’s argument that punitive damage claim would “overwhelm” claims for injunctive relief as conclusory and speculative); Barefield v. Chevron, 1988 WL 188433, *3 (N.D.Cal.1988) (class claim for punitive damages did not render monetary aspect of case predominant where the injunctive and declaratory relief sought was the heart of the action).
The Court further notes that a claim for punitive damages does not detract from the homogeneity or cohesiveness of the class. Rather, it is “consistent with the notion that *172 the focus of a (b)(2) action is the defendant’s conduct toward persons sharing a common characteristic.” Barefield, 1988 WL 188433, *3. Indeed, since the purpose of punitive damages is not to compensate the victim, but to punish and deter the defendant, a punitive damage claim focuses “not on facts unique to each class member, but on the defendant’s conduct toward the class as a whole.” Id., citing Jenkins v. Raymark Industries, 782 F.2d 468, 474 (5th Cir.1986), reh’g denied, 785 F.2d 1034 (1986); see also Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 536, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) (focus of punitive damage claim is on

defendant’s conduct). Accordingly, the “cohesive core of the (b)(2) action is ... maintained.” Barefield, 1988 WL 188433, *3.
Wal–Mart also argues that Plaintiffs’ class claim for punitive damages is foreclosed by the Supreme Court’s recent decision in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). Nothing in State Farm, however, supports this supposition. In State Farm the Court held that a punitive damage award in an individual action improperly punished the defendant for conduct that “bore no relation to the [plaintiff’s] harm.” Id. at 422, 123 S.Ct. 1513. Specifically, it found that the jury improperly considered conduct by State Farm that occurred in other states and did not directly affect the plaintiff. Id. at 422–23, 123 S.Ct. 1513. As such, it underscored the basic proposition that a “defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business.” Id. at 423, 123 S.Ct. 1513. Such a principle is not, as Wal–Mart suggests, incompatible with the recovery of punitive damages in a class action.
First, courts can ensure that any award of punitive damages to the class is based solely on evidence of conduct that was directed toward the class. Second, as Plaintiffs propose here, courts can limit recovery of any punitive damages 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. Finally, courts also can ensure that any punitive damage award is allocated among the lost pay class in reasonable proportion to individual lost pay awards. Accordingly, this Court is satisfied that procedures exist that permit Plaintiffs’ punitive damage claim to be managed in a manner fully consistent with the principles of State Farm.46

46

In Jenkins, 782 F.2d at 474–75, for example, the Fifth

Circuit affirmed a district court’s certification of a

punitive damage claim in a 23(b)(3) class action, noting

that the jury could determine the defendants’ liability to

the class for punitive damages in one phase while still

ensuring that only class members who are harmed

recover such damages. “While no plaintiff [class

member] may receive an award of punitive damages

without proving that he suffered actual damages .... the

allocation need not be made concurrently with an

evaluation of the defendant’s conduct.” Id. at 474

(internal citations omitted). Rather, such determinations

could be handled in later proceedings. Id. The court

further suggested that jurors “could be allowed to

award an amount of money that each class member

should receive for each dollar of actual damages

awarded.” Id.

While plaintiffs’ claim for punitive damages does not preclude certifying this case under Rule 23(b)(2),
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Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

minimum due process requirements do apply where the monetary relief sought, albeit not “predominant,” is nonetheless “substantial.” Molski, 318 F.3d at 947–48. Recognizing the Supreme Court’s “growing concerns regarding the certification of mandatory classes when monetary damages are involved,” the Molski court held that “notice and the right to opt-out [ ] must be provided to bind absent class members when substantial monetary damages are involved.” Id. at 948. The Court further indicated that any claim for punitive damages is “substantial.” Id. at 951 (“Because the statutory damages ... provide for treble [i.e. punitive] damages, the remedy must be considered substantial”); cf. In re Monumental Life, 365 F.3d at 416–17 (due process requires provision of notice where Rule 23(b)(2) class seeks monetary damages, while provision of opt-out rights is optional).47

47

The type of notice utilized in a(b)(2) action, however,

need not always be “equivalent to that required in

(b)(3) actions.” Johnson v. Gen. Motors Corp., 598

F.2d 432, 438 (5th Cir.1979).

*173 Molski further notes that notice and the opportunity to opt-out can be provided in a(b)(2) class action. 318 F.3d at 951 n. 16. Indeed, the district court’s discretion in this regard is well established. See, e.g., In re Monumental Life, 365 F.3d at 417 (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 (notice and opt out can be afforded (b)(2) class members with respect to non-incidental damage claims); Jefferson v. Ingersoll Int’l Inc., 195 F.3d 894, 898–99 (7th Cir.1999) (same); Eubanks, 110 F.3d at 94. Accordingly, notice and an opportunity to opt-out shall be provided to the plaintiff class with respect to Plaintiffs’ claim for punitive damages.

B. Manageability of Liability and Remedy Stages [21] A critical issue raised by Plaintiffs’ motion is whether a class action of the size proposed—which is huge both in sheer numbers of class members and in its nationwide geographic scope—is manageable. While Rule 23(b)(2) does not expressly refer to manageability—in contrast to Rule 23(b)(3)—such a requirement is implicit in any type of class certification. See, e.g., Robinson, 267 F.3d at 164 (District court may allow (b)(2) certification if “class treatment would be efficient and manageable, thereby achieving an appreciable measure of judicial economy.”); Piva v. Xerox Corp., 70 F.R.D. 378, 388 (N.D.Cal.1975) (noting that proposed 23(b)(2) class of employees in Western Region “directly involves important considerations of manageability ”). Certainly, no court would certify a class unless it believed that the case could proceed in a manageable fashion.

Defendant contends that this case would be completely unmanageable in both the liability and remedial phases. Indeed, as Defendant repeatedly emphasizes, no court has ever confronted a motion for class certification in an employment discrimination case of this size—or anything close to it. This fact alone, however, does not preclude the Court from acting. Nonetheless, the Court agrees that it must very carefully assess the manageability issues presented by this unique case. While courts possess wide discretion to flexibly respond to manageability issues that may arise during the course of a class action, see, e.g., Blackie v. Barrack, 524 F.2d 891, 906, n. 22 (9th Cir.1975), this Court must be confident that such issues will not be of such a magnitude as to defy its ability to oversee this case in a responsible and reasonable manner.
Having given these matters considerable thought and deliberation, this Court is satisfied, for the reasons expressed below, that the liability stage of this case is not rendered unmanageable by the size of the proposed class. With respect to the remedial phase of this case, this Court also is amply satisfied that the size of the class would not present undue obstacles to managing Plaintiffs’ requests for injunctive relief on both their unequal pay and promotion claims. The Court similarly finds that fashioning a lost pay remedy for Plaintiffs’ unequal pay claim would be manageable. Finally, with respect to Plaintiffs’ promotion claim, the Court concludes that a lost pay remedy would be manageable only for a portion of the class. The manageability of each of these aspects of this case is discussed in turn below.
1. Manageability of Liability Stage The standard approach in Rule 23(b)(2) employment discrimination class actions is to bifurcate the case into two stages: liability and remedy. Robinson, 267 F.3d at 158, Arnold, 158 F.R.D. at 458–59. In the Stage I liability proceeding, plaintiffs are required to prove that the defendant engaged in a pattern and practice of discrimination against the class. Robinson, 267 F.3d at 158. If punitive damages are at issue, plaintiffs also must prove liability for such damages by showing that the pattern and practice of discrimination was undertaken maliciously or recklessly in the face of a perceived risk that defendant’s actions would violate federal law. See Kolstad, 527 U.S at 535, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999); Butler I, 1996 WL 421436, *1. Finally, defendant’s liability for the class representatives’ individual claims usually is determined in Stage I as well.
Defendant argues that determining its liability for the alleged pattern and practice of discrimination against the class would be unmanageable *174 because “due process” would necessarily require 3,244 individual minitrials, including testimony from 3,244 Store Managers, to
33

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
determine whether each individual Wal–Mart store discriminated against class members employed at that store. Defendant cites no authority for this argument. See Def.’s Opp’n at 45. Nor is it persuasive since it is inconsistent with the fundamental character of the class action proceeding.
As courts have long recognized, the Stage I liability determination in a systemic disparate treatment case focuses on the existence (or not) of a company-wide pattern or practice of discrimination against the class. While some acts of discrimination against individual class members are usually introduced as anecdotal evidence to bring statistical evidence “convincingly to life,” Teamsters, 431 U.S. at 339, 97 S.Ct. 1843, the class is not required to prove that each member suffered discrimination. Id. at 360, 97 S.Ct. 1843. Indeed such an approach would defeat the very efficiencies that the class action device is designed to achieve. Instead, it is plaintiffs’ burden to prove that “discrimination was the company’s standard operating procedure.” Id. at 336, 97 S.Ct. 1843.
As such, the evidence introduced during Stage I should properly focus on matters relevant to the class as a whole, such as statistical analysis and evidence of system-wide policies and practices. “[T]he stress at Stage I is upon demonstration of the defendant’s broad employment policies and practices ....” United States v. United States Steel Corp., 520 F.2d 1043, 1053 (5th Cir.1975); see also Cooper v. Fed. Reserve Bank, 467 U.S. 867, 876, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984); Teamsters, 431 U.S. at 339–40, 97 S.Ct. 1843 (statistics are valid tool for proving policy of employment discrimination); Robinson, 267 F.3d at 158–59; Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1106 (10th Cir.2001). Likewise, defendants are expected to respond to plaintiffs’ pattern and practice claim on a class-wide basis. Teamsters, 431 U.S. at 360 n. 46, 97 S.Ct. 1843; Thiessen, 267 F.3d at 1107 (“common defenses” not “individualized defenses” were relevant at liability stage). “The point is that at the liability stage of a pattern-or-practice trial the focus often will not be on individual hiring decisions, but on a pattern of discriminatory decision-making.” Teamsters, 431 U.S. at 360 n. 46, 97 S.Ct. 1843 (emphasis added). In short, once the court determines that there are sufficient common questions to justify proceeding as a class, the liability phase properly focuses on evidence that affects the class generally—not on individuals or other minor segments of the class.
Given that the scope of the instant class is company-wide, Defendant is no more entitled to 3,244 individual storeby-store trials than it would be entitled to try each class member’s individual claim in a case of smaller scope. Notably, Teamsters involved “nationwide operations” at 51 terminals in 26 states, 431 U.S. at 328, 329 n. 2, 97 S.Ct. 1843; yet, the Court nowhere suggests that the

employer in that case was entitled to defend itself on a terminal-by-terminal basis. Wal–Mart of course can defend against Plaintiffs’ claim of a nationwide pattern and practice by arguing that its more decentralized store sub-unit by store sub-unit statistical analysis refutes the existence of any company-wide policy of discrimination. It also can introduce evidence to rebut any evidence Plaintiffs present of centralized, nationwide policies regarding Defendant’s corporate culture, personnel policies or gender stereotyping. It is not, however, entitled to circumvent or defeat the class nature of the proceeding by litigating whether every individual store discriminated against individual class members.
A Stage I liability trial in this case would be of course a substantial undertaking—albeit no more, and probably less, so than some other complex litigation, such as certain anti-trust or patent cases. Defendant’s contention that it would necessarily be unmanageable, however, is simply not persuasive.
2. Manageability of Remedy Phase In the event that a plaintiff class establishes liability in Stage I, and the case advances to the remedy phase, courts will first “proceed to fashion class-wide injunctive relief.” Robinson, 267 F.3d at 159. Defendant does not argue that this aspect of the case would present any manageability issues. *175 Second, the court must address the remedy of lost pay (backpay and/or front pay), which usually is awarded “in order to effectuate the statutory goal [of Title VII] of compensating the victimized employee and placing him in as good a position as he would have been had he not been subject to discrimination,” as well as to deter recalcitrant employers. Stewart v. General Motors Corp., 542 F.2d 445, 451 (7th Cir.1976). Finally, if liability to the class for punitive damages has been established, this issue must be addressed as well.
As previously noted, Wal–Mart contends that any attempt to provide a lost pay remedy to a class of the size proposed here would mire the Court in a completely unmanageable endeavor. Plaintiffs respond that such problems can be avoided by employing a formula approach to streamline the process. Wal–Mart replies that formula approaches are discredited, and moreover, such an approach would still leave the Court with severe manageability issues.
In advancing their respective positions, both parties lump together Plaintiffs’ promotion and equal pay claims. Consequently, both neglect to address the fact that the remedial challenges each claim presents are actually quite distinct. Having evaluated each claim separately, this Court concludes that while a formula approach is still a perfectly valid remedial tool in the appropriate case, it would not resolve all of the manageability problems
34

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
presented by the promotion claim. The Court is convinced that a lost pay remedy with respect to the promotion claim can be effectively managed for only a limited subset of class members, as defined below. With respect to Plaintiffs’ pay discrimination claim, the Court is well satisfied that, should Plaintiffs prevail, a process for awarding lost pay can be devised that is entirely manageable for all class members, albeit without reliance on a formula approach. Each claim is discussed in turn below. In addition, the Court addresses Defendant’s contention that both the promotion and equal pay claims are rendered unmanageable by the Civil Rights Act of 1991.
a. Promotions Claim
(1) Overview of Traditional and Formula Approach to Backpay Remedy As a general matter, courts do not begin the remedy stage on a blank slate. “ ‘[T]he force of [the proof from the liability phase] does not dissipate.’ ” Teamsters, 431 U.S. at 361, 97 S.Ct. 1843. Rather, all class members benefit from a presumption in their favor “that any particular employment decision, during the period in which the discriminatory policy was in force, was made in pursuit of that policy.” Id. at 362, 97 S.Ct. 1843; see also Robinson, 267 F.3d at 159; Domingo II, 727 F.2d at 1444–45 (“ ‘proof of a discriminatory pattern and practice creates a rebuttable presumption in favor of relief’ ” for individual class members) (citation omitted).
[22] While proof of a pattern of discrimination establishes a presumption in favor of class members, it does not in and of itself entitle each class member to back (or front) pay. Pettway v. Am. Cast Iron Pipe Co. (Pettway III), 494 F.2d 211, 259 (5th Cir.1974). Rather, 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. Teamsters, 431 U.S. at 362, 97 S.Ct. 1843; Robinson, 267 F.3d at 159. Thus, courts awarding lost pay face two primary tasks at the remedy stage: (1) identifying the specific class members that were either actually, or at least potentially, harmed by the employer’s discriminatory policies, and (2) determining the specific amount of back or front pay each such person is owed.
In cases involving hiring or promotions, such determinations are usually made during the course of additional proceedings. In Teamsters, for example—a hiring and promotions case—the Court explained that “a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.” Id. at 361, 97 S.Ct. 1843. These proceedings typically consist of mini-hearings *176

presided over by a special master or the court. While the burden on individual class members at this point is minimal, they must at least identify themselves and make some showing (less than a prima facie case) that they suffered an adverse employment decision. Robinson, 267 F.3d at 159. The burden then shifts to the employer to prove that the class member was denied the job or promotion for lawful reasons. Teamsters, 431 U.S. at 362, 97 S.Ct. 1843; Robinson, 267 F.3d at 159–60. The advantages of such an approach are obvious. It protects both the defendant and the class by ensuring that each victim, or at least potential victim, of the employer’s discriminatory policy is correctly identified, and that each such victim is paid the correct amount to make him or her whole.48

48

See Stewart, 542 F.2d at 452 (Backpay awards should

be made on an individualized basis whenever possible

“because it will best compensate the victims of

discrimination without unfairly penalizing the

employer.”); United States v. United States Steel Corp.,

520 F.2d at 1055–1056 (“Apart from protecting the

defendant, this method has the virtue of distributing the

recovery to the victims who, by the greater likelihood,

are entitled to it .... [W]e reemphasize that alternative

methods possessed of superior certainty should be

exhausted before the court resorts to racially-drawn

classwide comparisons ....”); Smith v. Union Oil Co.,

1977 WL 77 (N.D.Cal. Aug.22, 1977), decision

supplemented by, 1978 WL 13884 (N.D.Cal. June 15,

1978) (in most cases and where feasible, there should

be a separate determination on an individual basis as to

who is entitled to recover and the amount of such

recovery).

As Plaintiffs implicitly concede, holding individual hearings for the number of women potentially entitled to backpay in this case is impractical on its face, and thus the traditional Teamsters mini-hearing approach is not feasible here. Plaintiffs contend, however, that a lost pay remedy can manageably be afforded the class through the use of a formula approach that obviates the need for individualized Teamster hearings for each class member. See Pls.’ Mot. at 49 (“The lost wages due to the class can be determined by formula”).
As Plaintiffs correctly point out, courts have, in certain circumstances, employed a formula to calculate a lump sum amount that represents the employer’s total liability for backpay to the class. In Domingo II, 727 F.2d at 1443, for example, the Ninth Circuit held that departure from the preferred Teamsters approach is justified when subjective employment practices, including lack of objective hiring criteria and word-of-mouth recruitment, “make[ ] it difficult to determine precisely which of the claimants would have been given a better job absent discrimination, but it is clear that many should have.” Domingo II, 727 F.2d at 1444. As the court further
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Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
explained:
“[W]hen the class size or the ambiguity of promotion or hiring practices or the illegal practices continued over an extended period of time calls forth [a] quagmire of hypothetical judgment ... a classwide approach to the measure of back-pay is necessitated.”
Id., quoting Pettway III, 494 F.2d at 261 (alterations in original); see also EEOC v. O & G Spring & Wire Forms Spec. Co., 38 F.3d 872, 879–880 & n. 9 (7th Cir.1994) (approving district court’s use of formula approach); Hameed v. Int’l Ass’n of Bridge Workers, Local 396, 637 F.2d 506, 520, 521 & n. 18 (8th Cir.1980) (same) (and cases cited therein); Stewart, 542 F.2d at 452–53 (7th Cir.1976) (same) (and cases cited therein); EEOC v. Chicago Miniature Lamp Works, 668 F.Supp. 1150, 1151–52 (N.D.Ill.1987); Green v. United States Steel Corp., 640 F.Supp. 1521, 1525–26 (E.D.Pa.1986), aff’d in part and vacated in part on other grounds, 843 F.2d 1511 (3rd Cir.1988), vacated in part on other grounds, 490 U.S. 1103, 109 S.Ct. 3151, 104 L.Ed.2d 1015 (1989).
In short, while a formula approach is certainly not the norm, it is a potential option where the employer uses largely subjective criteria for hiring or promotion decisions, objective requirements are minimal, and many more class members qualified for the positions than would have been hired or promoted even absent discrimination. Because it is virtually impossible in such cases to determine which class members would actually have been hired or promoted (and thus which class members were the actual victims of the defendant’s discriminatory policy), there is little point in going through the *177 exercise of individual hearings. As the Seventh Circuit explained in Stewart:
In determining the appropriate award to be made to black employees who were unfairly denied promotions to salaried positions ... the utilization of an individualized method of calculation is impossible. Because General Motors had no objective standards by which to measure whether a given employee deserved a promotion, deciding in individual cases whether a particular person would have been promoted but for racial discrimination would lead the district court into a “quagmire of hypothetical judgments,” in which any supposed accuracy in result

would be purely imaginary.
542 F.2d at 452 (internal citation omitted); see also Pettway III, 494 F.2d at 261 (In cases such as those described above, it is “not a choice between one approach more precise than another. Any method is simply a process of conjectures.”).
Even in those circumstances, however, where the court properly employs a formula to calculate a lump sum backpay award to the class, it still must undertake the additional steps of determining which individual class members are eligible to share in the lump sum award and allocating the award among those eligible members. Given that the actual victims cannot be identified, courts have focused instead on ascertaining which class members were at least potentially victimized by the employer’s discriminatory policy. In a promotion case, this would include any class member who met the minimum qualifications for the job and was interested in a promotion, and either applied for (and was denied) a promotion, was deterred from applying, or was unable to apply because of lack of application procedures.
The cases acknowledge that awarding backpay to all potential victims of the employer’s policy (as opposed to just the actual victims) has the effect of generating a “windfall for some employees who would have never been promoted had vacancies been filled on a [nondiscriminatory] basis and undercompensat [ing] the genuine victims of discrimination by forcing them to share the award with their undeserving brethren.” Stewart, 542 F.2d at 452–453. For example, in O & G Spring & Wire Forms, backpay for 17 positions that would have gone to class members absent discrimination was spread over 450 persons who identified themselves as having applied (or having been deterred from applying) for the positions at issue, 38 F.3d at 879 & n. 9; in Hameed, backpay for 45 apprentice positions was spread over a much larger group of “potential discriminatees,” 637 F.2d at 519–20. The cases conclude, however, that this “rough justice” is better than the alternative of no remedy at all for any class member. Stewart, 542 F.2d at 453 (“Given a choice between no compensation for black employees who have been illegally denied promotion and an approximate measure of damages, we choose the latter”); see also Hameed, 637 F.2d at 521 n. 19; Segar v. Smith, 738 F.2d 1249, 1291 (D.C.Cir.1984) (“Though [Title VII] generally does not allow for backpay to those whom discrimination has not injured, this section should not be read as requiring effective denial of backpay to the large numbers of agents whom [defendant’s] discrimination has injured in order to account for the risk that a small number of undeserving individuals might receive backpay.”)
Defendant attempts to dismiss Domingo and other
36

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
formula cases as inconsistent with Teamsters. Yet Domingo, O & G Spring & Wire Forms, Hameed, Chicago Miniature Lamp Works, and Green all post-date Teamsters. As these cases implicitly recognize, nothing in Teamsters precludes calculating a total backpay award that is allocated among potential victims, where the actual victims cannot realistically be identified even were the court to undertake individual hearings. On the contrary, Teamsters supports the notion that class members who can demonstrate that they have potentially been discriminated against are eligible to receive backpay. See Teamsters, 431 U.S. at 362, 97 S.Ct. 1843 (“The Government need only show that an alleged individual discriminatee ... was a potential victim of the proved discrimination”); see also Robinson, 267 F.3d at 159 (“a class member at the remedial stage of a pattern-orpractice claim need only show that he or she suffered an adverse employment *178 decision ‘and therefore was a potential victim of the proved [class-wide] discrimination’ ”), quoting Teamsters, 431 U.S. at 362, 97 S.Ct. 1843; McKenzie v. Sawyer, 684 F.2d 62, 75 (D.C.Cir.1982), abrogated on other grounds by Berger v. Iron Workers Reinforced Rodmen, Local 201, 170 F.3d 1111, 1125 (D.C.Cir.1999) (To share in relief, class members “must make some showing that they were potential victims of the discriminatory employment practices”). Accordingly, this Court rejects Defendant’s contention that Domingo and the other formula cases cited above lack weight. Indeed, Domingo is binding precedent on this Court.
Furthermore, this case presents the type of situation a formula approach was intended to address. As discussed above in section I.B.1.a(2), Wal–Mart uses largely subjective criteria for its in-store promotion decisions, and objective requirements are minimal. Furthermore, it is likely that many more class members would qualify for the challenged positions than would have been promoted absent any proven discrimination, making it virtually impossible to determine which class members were actual victims. In short, the subjectivity built into Wal–Mart’s promotion system would simply call forth the “quagmire of hypothetical judgments” warned of in Domingo. In addition, the class size is large and the alleged practices have “continued over an extended period of time.” Domingo II, 727 F.2d at 1444. As such, this is precisely the kind of case in which “ ‘a class-wide approach to the measure of back-pay is necessitated.’ ” Id.
Nonetheless, the Court still must have confidence that a formula approach can be applied in a manageable manner in this particular case. Here, Plaintiffs have suggested that it is unnecessary at this early juncture to either determine the specifics of the formula that would be used to calculate Defendant’s backpay liability to the class or detail how the Court would identify the potential victims of Defendant’s alleged discriminatory promotion policy. Indeed, Plaintiffs’ briefs only discuss the formula process in the most conclusory terms. While a detailed blueprint

certainly is not required, the general contours should be sufficiently defined, particularly in a case of this unique magnitude, such that the Court has confidence that it is not being called upon to embark upon a process that will ultimately prove unmanageable. It is to these issues the Court turns next.

(2) Application of Class–Wide Formula Approach
(a) Using a Formula to Calculate a Lump Sum Backpay Award While the methods for constructing backpay formulas vary, most involve the following three steps: (1) identifying the number of positions that would have gone to class members absent discrimination, (2) estimating the total amount of earnings that would have accrued to class members in those positions, and finally (3) subtracting a mitigation amount that represents what the class members earned or would have earned during the period in question in any event. See, e.g., Domingo II, 727 F.2d at 1445 (“Determination of the [formula] award could proceed along any of several avenues, all of which are designed to estimate the difference between what non-whites actually earned and what they would have earned but for the discrimination”); O & G Spring & Wire Forms, 38 F.3d at 880, n. 9 (detailing actual formula); Hameed, 637 F.2d at 520 (same); Stewart, 542 F.2d at 454; Pettway III, 494 F.2d at 262–63; Green, 640 F.Supp. at 1526.
While the development of a formula in this case plainly would be a complex undertaking, Defendant does not argue that it would be unmanageable (rather, Defendant focuses on the manageability of the eligibility issues discussed below). Moreover, courts may enlist the assistance of an expert or special master under Federal Rule of Civil Procedure 53. See, e.g., Pettway v. Am. Cast Iron Pipe Co. (Pettway V), 681 F.2d at 1261 (11th Cir.1982) (formula could be decided by special master after a hearing and guidance from the court). At least at this stage of the litigation, the Court is satisfied that a formula for calculating Defendant’s lump sum backpay liability to the class could be developed in a manageable manner given the Court’s limitations on *179 eligibility set forth below.49

49

The Court also notes that where a defendant’s total

backpay liability to the class is set by formula in the

form of a lump sum award, there is no need for the

defendant to participate further in the issue of which

class members are eligible to share in the award.

Although Domingo cites Teamsters for the proposition

that “the employer has the burden of proving that the

applicant was unqualified or showing some other valid

reason why the claimant was not, or would not have

been, acceptable,” 727 F.2d at 1445, it appears to have

simply imported this procedure from Teamsters without

37

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
considering whether it is necessary in a formula case. Clearly, in a traditional Teamsters model, the employer has a strong interest in contesting each individual claimant’s qualifications and expressed interest in a promotion since the fewer the number of persons found to be victims of the employer’s discriminatory policy, the less backpay the employer will owe. Thus, Teamsters logically provides that the employer has the opportunity to demonstrate that each claimant seeking backpay was not in fact discriminated against but rather was denied the position for lawful reasons. 431 U.S. at 362, 97 S.Ct. 1843.
In a formula case, however, the employer’s total backpay liability is set as a lump sum. As such, the employer does not appear to have any significant, legitimate interest in which class members share in the formula award and which do not. Indeed, Defendant has failed to clearly articulate such an interest here. This general point was acknowledged by the Ninth Circuit in Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir.1996), which supports the general principle that a defendant does not necessarily have a protectable interest in contesting the validity of individual claims in a formula case, assuming the court has confidence that the formula reliably and accurately captures defendant’s total liability to the class. Id. at 786. See also Pettway V, 681 F.2d at 1266 (defendant had no basis for objecting to a formula approach on due process grounds so long as the “amount found due the class does not exceed the amount which all members of the class together would have been entitled to receive under a correct hypothesis, which we must assume the trial court would adopt”). The Court also notes that neither O & G Spring, 38 F.3d 872, nor Hameed, 637 F.2d 506, indicate that the employer participated in eligibility determinations.
(b) Determining Individual Eligibility As noted above, even where a “formula approach” such as that endorsed in Domingo is invoked, the formula only advances the backpay remedy to the point of calculating the defendant’s total backpay liability to the class. Courts still face the “eligibility phase”—i.e. the practical problem of identifying which class members were at least potential victims of the employer’s discriminatory policy and thus are eligible to share in the lump sum backpay award. In a promotion case, such potential victims consist of those class members who were both (1) qualified for, and (2) interested in, a promotion but were denied that opportunity. These are two distinct factors that must be analyzed separately for manageability purposes. A class member who was qualified for, but not interested in, a promotion, would by definition not have been even potentially injured by defendant’s discriminatory promotion policies, and thus would not be eligible to participate in the backpay award.

These potential victims typically constitute some subset of the class, since courts generally will not presume that every class member is both qualified for, and interested in, every promotional opportunity. See, e.g., Teamsters, 431 U.S. at 369, 370 n. 55, 97 S.Ct. 1843 (“the desirability of the [promotion positions] is not so selfevident 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 illegally denied to the plaintiffs as a class were opportunities neither automatically sought nor automatically bestowed .... [It is not] reasonable to assume that all journeymen would wish to assume supervisory responsibilities.”).
In the promotion formula cases relied upon by Plaintiffs, courts typically resolve the eligibility issue through additional proceedings wherein class members come forward, self identify, and provide some minimum information regarding their (1) qualifications for, and (2) interest in the job promotions at issue. For example, in Domingo, the Ninth Circuit stated as follows:
In order to be eligible for back-pay [from the formula-derived lump sum fund], claimants need only prove they applied for a position or would have applied if not for Nefco’s discriminatory practices. They may be required to show what their qualifications were, but do not have the burden of proving they were qualified for the position *180 sought .... In determining whether claimants applied or were deterred from applying for a better position, the district court should not put an unrealistic burden on claimants .... All uncertainties should be resolved against the employer.
727 F.2d at 1445; see also Stewart, 542 F.2d at 453; Pettway V, 681 F.2d at 1266 (employee need only come forth with statement of employment history, jobs denied, and qualifications, not conclusive proof of such matters).
As Plaintiffs concede, such additional proceedings would be unmanageable in this case. They argue, however, that these eligibility determinations could be handled solely by reference to objective data contained in corporate records, which would eliminate the need for additional, individualized eligibility proceedings. “The determination of which class members would be entitled to backpay ... could be drawn from the economic models that each side’s experts create” which account for factors such as performance evaluation scores, tenure, and positions held. See Pls.’ Reply at 23–24.
38

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

The Court agrees that the objective data from Wal–Mart eliminates the need for individualized hearings with respect to the qualifications component of the eligibility determination. As Plaintiffs assert, and Defendant does not dispute, Wal–Mart maintains an extraordinarily sophisticated information technology system. See Pls.’ Opp. at 8; Bielby Decl. ¶¶ 16. A significant part of this system is Wal–Mart’s “PeopleSoft” database, which is one of the most extensive data collection systems in the country. The database contains information on each employee individually with respect to job history, seniority, job review ratings, and many other factors, thereby enabling a sophisticated user to create detailed reports of individual work histories and qualifications. Id.; see also Drogin Decl. ¶¶ 6–8, 10 (describing PeopleSoft database as including (1) identifying information including name, employee ID, social security number, and gender, (2) complete job histories including all jobs held and at which stores, salary changes, promotions, transfers, etc., and (3) performance review information for all employees during class period); Cynn Decl. (discussing detailed job history and payroll data derived from Peoplesoft database for a sample of fifty employees). As such, it is plain that ample corporate data exists that would permit the Court to objectively determine which class members were minimally qualified for a given promotion. Accordingly, this aspect of the promotion backpay process is also manageable.50

50

The Court could instruct the parties to complete the

task of deriving qualification-related information from

the database, especially since the experts already have

mined the database in constructing their analyses, or it

may appoint a special master and/or expert. See

Labor/Community Strategy Center v. Los Angeles

County Metro. Transp. Auth., 263 F.3d 1041, 1049–50

(9th Cir.2001) (approving district court’s appointment

of special master with broad powers to resolve issues

for purpose of enforcing court’s remedial order).

With respect to the interest component of the eligibility determination, however, the Court faces a more complex situation. The objective data relied on by Plaintiffs— performance evaluation scores, tenure, and positions held—goes only to the issue of qualification, not interest in a position. As such, the Court finds that they are insufficient proxies for interest. Moreover, the objective data that would document interest—i.e. past applications for positions—is simply not available for many class members because, as discussed in section I.B.1.a.(2)(b), Wal–Mart did not utilize a system of posting and accepting applications for many positions during the class period. Indeed, without this data it is difficult to discern how the Court could identify which class members were interested in unposted promotions absent some type of individualized proceedings, whether it be by declaration or otherwise.

Plaintiffs respond by urging the Court to dispense with the “interest” factor altogether in this case. Specifically, Plaintiffs argue that individual interest in a promotion should be irrelevant to the remedy phase because at Wal– Mart expression of interest was not a requirement for promotion in the first place. Rather, Wal–Mart operated largely under a “tap on the shoulder” method, as discussed above. Given the wide-scale absence of application procedures, Plaintiffs conclude, eligible class members should simply consist of *181 all qualified women in the relevant “feeder pools” (i.e. all qualified women in a job category and geographical location from which promotional candidates are drawn), all of whom are identifiable from the corporate records.
While expanding eligibility to include all qualified women in the relevant feeder pools, regardless of interest, would solve the manageability issue for unposted promotional opportunities, the Court is not convinced that such an approach is justified by either the facts or current law. First, the fact that an expression of interest is not a requirement for promotion does not mean that interest is irrelevant to determining eligibility. The fact that no expression of interest is required for promotion goes to the question of which employees were qualified for promotion. Thus, a female employee need not show she expressed interest in a promotion in order to establish that she was qualified for a promotion. This fact has no logical bearing, however, on the question of whether the employee was potentially victimized by the employer’s discriminatory policies because the employee was interested in (but denied) a promotion.
Second, while courts commonly rely on feeder pools in making liability determinations,51 Plaintiffs have not pointed to any precedent that would permit this Court to rely on feeder pools to determine eligibility for a backpay award. On the contrary, Teamsters raises serious questions as to the propriety of this approach. There, the Court rejected the argument that the group of “deterred employees” eligible for make-whole relief should automatically include all employees in the “feeder pool” (i.e. all employees who were qualified to apply for a better “line-driving” job) without the need for any individualized showing that each employee was actually interested in a promotion. 431 U.S. at 368–369, 97 S.Ct. 1843. The Court made this holding even though the district court found that line-driver jobs are generally considered the most desirable driving job, and that applying for the job would have been a futile act:

51

See, e.g., Hemmings, 285 F.3d at 1185–86; Shidaker,

833 F.2d at 631; Stender, 803 F.Supp. at 326; Butler II,

1997 WL 605754.

39

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

While the scope and duration of the company’s discriminatory policy can leave little doubt that the futility of seeking line-driver jobs was communicated to the company’s minority employees, that in itself is insufficient. The known prospect of discriminatory rejection shows only that employees who wanted linedriving jobs may have been deterred from applying for them. It does not show which of the nonapplicants actually wanted such jobs .... [T]he desirability of the [line-driving jobs] is not so self-evident as to warrant a conclusion that all employees would prefer to be line drivers if given a free choice. 431 U.S. at 369, 97 S.Ct. 1843. Similarly, it is not selfevident here that every (or nearly every) class member in every feeder pool desired a promotion, particularly given the relatively large feeder pools that would be at issue for many positions in this case.52 This Court acknowledges that the eligibility issues in Teamsters raised particularly sensitive concerns because the make-whole relief included adjustments to seniority. See id. at 347–348, 97 S.Ct. 1843. Nonetheless, it remains instructive on this issue.53

52

Even if the pool of potential discrimination victims

were narrowed to a particular job classification and the

store or district in which each respective promotion

occurs, in a company where most of the stores at issue

have between 150 to 500 employees, and 6 to 8 stores

per district, the size of many of the pools would likely

be substantial. See Def.’s Opp. at 13 (and citations

therein); Drogin Decl. ¶ 49 (constructing availability

pools for each challenged promotion by including only

employees in “the same job and geographic area

[district or store] as the person promoted”). The Court

also notes that while it is theoretically possible that in

some cases a plaintiff class could prove at trial that

virtually every class member in every feeder pool was

interested in a promotion, this possibility appears so

remote on its face in this case, given the sheer size of

the class, that the Court finds that it is not a sufficient

basis for certifying the entire class for promotion

backpay in this instance.

53

Plaintiffs also argue that class members should not be

required to show interest in a promotion because the

evidence will show that Wal–Mart’s discriminatory

policies discouraged women from showing interest in,

or developing interest in, management positions. Oral

Arg. Tr. at 79–80. This, however, is essentially an

argument that interest should be irrelevant to eligibility

in cases where applicants are deterred from applying or

seeking promotion due to discriminatory policies.

Courts, however, have routinely required deterred class

members to demonstrate interest post hoc in some

manner before recovering backpay. See e.g. Teamsters,

431 U.S. at 371 n. 58, 97 S.Ct. 1843 (with respect to

deterred class members, “the District Court may find

evidence of any employee’s informal inquiry,

expression of interest, or even unexpressed desire

credible and convincing”); Domingo II, 727 F.2d at

1445 (although employer’s discriminatory practices made it difficult to prove deterrence, minority employees were still required to provide some indication of their interest in a position); Hameed, 637 F.2d at 519–20 (class members who can show they were deterred from applying because of defendants’ discriminatory policies are among group of “potential discriminatees” and thus eligible to recover from formula backpay fund).
*182 Finally, Plaintiffs’ attempt to factually distinguish Domingo is not persuasive. Plaintiffs argue that in Domingo, the employer utilized an informal application process, see Domingo II, 727 F.2d at 1445, and therefore it was reasonable to require class members to demonstrate their earlier interest on a post hoc basis, since an objective manifestation of such interest—rejected applications— was available. The employer in Domingo, however, did not in fact advertise job openings or post vacancies. Domingo v. New England Fish Co. (Domingo I), 445 F.Supp. 421, 435 (W.D.Wash.1977). Rather, “[m]ost positions [were] filled by word-of-mouth recruitment.” Id. In fact, the informal application procedures referred to in the Domingo appellate opinion appear to have been targeted toward non-class members through “[w]ord-of mouth recruitment, directed along racial lines, [which] made it especially difficult for [class members] to become aware of openings as they occurred.” Domingo II, 727 F.2d at 1445. Significantly, despite the lack of job posting, Domingo still required some, albeit minimal, showing that the class member had desired a promotion before being eligible to participate in the backpay award to the class. Id. (noting for example that “any request for a better position” would suffice, and that “[a]ll uncertainties should be resolved against the employer”).
The Court acknowledges that backpay is a significant aspect of any make-whole remedy that should be granted whenever possible. See, e.g., Albemarle Paper Co. v. Moody, 422 U.S. 405, 421–422, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). Nonetheless, the Court concludes that this aspect of the remedy can not be reasonably managed on a class basis in this particular case for promotions that were not posted, such that no objective applicant data exists. Plaintiffs have not persuaded the Court that it can properly identify which class members are eligible for backpay solely by reliance on feeder pools or other objective corporate data serving as a proxy for interest. As Plaintiffs have not proposed any other manageable alternative in this case, the Court declines to certify a claim for lost pay with respect to the portion of Plaintiffs’ promotion claim where no objective applicant data exist. See Williams v. Owens–Illinois, Inc., 665 F.2d 918, 929 (9th Cir.1982) (trial judge has discretion to limit issues in class action to “ ‘those parts of a lawsuit which lend themselves to convenient use of the class action motif’ ”) (citations omitted); Morgan, 169 F.R.D. at 358
40

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

(limiting certification to liability and request for injunctive relief); Fed.R.Civ.P. 23(c)(4).
Where, however, promotional opportunities were posted, Wal–Mart’s advanced personnel system does contain objective applicant data documenting which class members were interested in each such promotion. In particular, two corporate electronic databases—known as Job Posting Data for hourly job vacancies, and Management Career Selection (MCS) for salaried vacancies—contain the identities of the individual applicants for posted positions. See Drogin Decl. ¶¶ 8, 44–45; Haworth Decl. ¶¶ 72, 78, 118. Thus, with respect to all posted positions, the Court finds that it can readily identify through objective data those class members who were both qualified and interested in promotional opportunities—and thus were potential victims of any proven discriminatory policy. Accordingly, for this subset of the class, the Court is confident that it could manageably determine which class members would be eligible to share in a formula-derived, lump *183 sum backpay award to the class.54

54

While the Court does not, and need not, at this time

attempt to identify precisely which challenged positions

were in fact posted, it notes that this subset of positions

covers a sizeable raw number of promotions. For

example, from 1998 to 2002, well over 3,000 Store

Manager openings were posted and applicants were

tracked in the database. See Haworth Decl. ¶ 120 (see

Jobs 2 and 6 in chart entitled “Analysis of Selections

from Management Job postings by Job”); Drogin Decl.

¶ 46 & Table 21. Haworth Decl. ¶¶ 72, 118 (“Wal–Mart

has systematically retained records of about 580,000

actual applications received for hourly promotions and

about 56,000 electronic expressions of interest in

promotion to salaried management jobs since 1997”;

additionally, the 2003 Assistant Manager Trainee

postings generated over 40,000 applicants for

promotion); Bielby Decl. ¶¶ 43–44.

The ability to identify the specific class members who are both qualified and interested would also permit the Court to calculate through a formula Defendant’s total backpay liability to this subset of the class. As discussed above, most formulas involve (1) identifying the number of positions that would have gone to class members absent discrimination, (2) estimating the total earnings that would have accrued to class members in those positions, and (3) some method to account for mitigation. There are, of course, various ways to approach these steps, and the Court does not intend to limit any options at this juncture. With the data discussed above, however, the Court would be able to determine if the percentage of women selected for certain positions was commensurate with, or fell short of, the percentage of qualified women who actually applied for such positions. In the event the percentage selected falls short, this information could be used to

identify the number of “shortfall” positions—i.e., the number of positions that would have gone to class members absent discrimination. This number of shortfall positions could then be used for the second step of the formula, which would involve estimating the total earnings that would have accrued to class members in those shortfall positions (based, for example, on the earnings of men in the shortfall positions). Finally, the Court would deduct an amount to account for mitigation.
In sum, the Court rejects Defendant’s contention that a lost pay remedy on Plaintiffs’ promotion claim is entirely unmanageable. First, the Court finds that this is the type of case in which a formula approach may be appropriate. Second, the Court concludes that a formula-based remedy would be manageable, however, only with respect to those positions for which objective applicant data is available to document class member interest. In such cases, the Court would have sufficient data to identify those class members who would be eligible to participate in a lump sum backpay award, and to fashion a formula to calculate such an award. Where no such objective data exists, however, manageability concerns preclude a lost pay remedy in this class action. Accordingly, any lost pay remedy on Plaintiffs’ promotion claim would be limited to that subset of the class for whom objective applicant data exists. See Williams, 665 F.2d at 929; Morgan, 169 F.R.D. at 358; Fed.R.Civ.P. 23(c)(4).
b. Equal Pay Claim As indicated above, Plaintiffs’ equal pay claim presents issues that are quite distinct from plaintiffs’ promotion claim. Having considered these issues, the Court concludes that, should plaintiffs prevail on the merits, a lost pay remedy for the class would be manageable. As previously discussed, Plaintiffs would enter the remedy phase with a presumption in their favor that any unequal pay was due to Defendant’s discriminatory policy and practice See Teamsters, 431 U.S. at 361, 97 S.Ct. 1843. In order to award lost pay, however, the Court still must be able to (1) identify which class members were actually, or at least potentially, victimized by the employer’s discriminatory pay policies, and (2) calculate the specific amount of lost pay that each such person is owed. As discussed below, the Court is well satisfied that it could accomplish both tasks in a manageable fashion and without resort to a formula approach.
(1) Identification of victimized class members With respect to the first task, the primary manageability obstacle posed by the promotion claim simply is not present here. As *184 discussed above, courts are not generally willing to assume, for purposes of granting make-whole relief, that all employees are uniformly
41

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
interested in every promotional opportunity, given the various considerations that go into such a decision. This necessitates some examination of the interest levels of individual class members, as discussed above in terms of identifying objective information from the promotion databases. In contrast, courts can safely assume that all employees uniformly desire equal pay for equal work. Indeed, equal pay for equal work is a benefit that automatically flows to all employees. Thus, there is simply no need to assess individual interest levels with respect to equal pay claims. Rather, virtually all of the potential victims of an employer’s discriminatory pay policy—i.e. those class members who were paid less than male employees for comparable work—can be identified by reference to objective criteria such as pay rates and job positions held.
It is also clear that identifying these potential victims would be a manageable task in this particular case. As discussed above, Defendant’s PeopleSoft database contains a wide range of personnel and payroll data enabling a sophisticated user to create detailed reports of individual work and earnings histories as well as comparisons between workers. In addition, Wal–Mart maintains computerized bi-weekly payroll information for each and every employee working in the United States. See Drogin Decl. ¶ 7 (noting that the payroll data is capable of being merged into the PeopleSoft database for the creation of earnings reports). Thus, the objective data necessary to identify potential equal pay victims is readily available in this case.
Moreover, there is sufficient objective data available to identify not only the potential victims but also the actual victims of any proven discriminatory pay policy—i.e. those class members who not only were paid less for comparable work but who also were at least equally qualified as their male counterparts. This requires a more sophisticated use of the data because determining qualifications requires an analysis of additional factors. Again, however, Wal–Mart’s database contains the critical information necessary to perform such an analysis for each employee individually, including job history, seniority, job review ratings, weeks worked, full-time versus part-time status, regular-time versus over-time, and store location. See Drogin Decl. ¶¶ 67, 69, 71; Cynn Decl.
It would be premature of course for the Court to determine at this juncture precisely which factors should be relied upon to compare qualifications. Nor is it necessary to account for every possible factor that might be relevant to qualifications. As the case law repeatedly emphasizes, when calculating backpay awards “unrealistic exactitude is not required, and [ ] uncertainties in determining what an employee would have earned but for the discrimination should be resolved against the discriminating employer.” Shipes, 987 F.2d at 317 (citations omitted); see also Teamsters, 431 U.S. at

372, 97 S.Ct. 1843; McKenzie, 684 F.2d at 77; EEOC v. Chicago Miniature Lamp Works, 640 F.Supp. 1291, 1298–99 (N.D.Ill.1986) (accepting lack of precision at remedy phase due to subjectivity in defendant’s hiring method). The Court thus flatly rejects Defendant’s argument that any comparison of male and female employees would be impossible because the available data does not include dozens of factors identified in a survey of Store Managers as being relevant to pay decisions. Oral Arg. Tr. at 105, 125–26.55 Rather, the Court is satisfied *185 that it will have access to sufficient data to meaningfully compare the qualifications of female and male employees doing comparable work for purposes of calculating lost pay. See National Treasury Employees Union v. United States, 54 Fed. Cl. 791, 795, 800 (2002) (in computing backpay for class of 210,000 employees court relied on “data concerning the class member’s agency, occupation, geographic location, and grade,” along with the use of “a few simplifying rules and assumptions to allow for the computation[ ] to be completed with reasonable accuracy, and in a reasonable amount of time”).

55

As noted previously, the Court has stricken references

to Defendant’s Store Manager survey in Dr. Haworth’s

declaration for failure to satisfy the standards of

Fed.R.Evid. 702 and 703. See Order re Motions to

Strike. Moreover, even this survey indicates that the

most important factors identified by the Store Managers

declarations actually are in Defendant’s database, e.g.,

“minimum pay established for the job classification by

Wal–Mart’s pay guidelines,” and performance. See

Haworth Decl., Appendix Vol. 2, Tab 16 (chart entitled

“Store Manager Declarations: Percentage of Decisions

in Which Factors Play a Role in Determining Starting

Hourly Pay”); see also Drogin Reply Decl., Ex. 2

(Wal–Mart “Field Associate Compensation

Guidelines”). While the data does not capture pre-Wal-

Mart experience, the Court concludes that this one

factor does not prevent it from making sufficient

comparisons between class members and male

employees for purposes of calculating lost pay. Segar,

738 F.2d at 1274–76 (affirming trial court’s finding that

plaintiffs’ evidence was sufficient for backpay award

despite failure to account for aspects of prior

experience, especially where the past experience at

issue was not used by defendant as a minimum

objective qualification, and where it was defined

subjectively and amorphously). Other factors noted by

defense counsel at oral argument, such as willingness to

work weekends or rotating shifts, or live cricket

experience, are not significant, even according to

Defendant’s own data. See Haworth Decl. ¶ 187.

(2) Calculation of individual backpay awards Once the actual victims of a proven discriminatory pay policy have been identified, Defendant’s PeopleSoft data
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Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
system also can facilitate the calculation of individualized damage awards. Since the database contains payroll information, it could be used to calculate the differential between each individual victim and the comparable male pay rate. Again, the Court need not decide at this time exactly how such calculations would be made. Rather, suffice it to say that the Court is confident that a fair and manageable method can be devised. See Albemarle Paper Co., 422 U.S. at 419, 421, 95 S.Ct. 2362 (Congress’ purpose in vesting discretionary powers in the courts to provide relief under Title VII was “to make possible the ‘fashion[ing][of] the most complete relief possible’ ”) (citation omitted).
The Court’s approach here—with respect to both the identification and calculation issues—is similar to that taken by the Fifth Circuit in Shipes, 987 F.2d 311. In Shipes, the plaintiff class of African–American workers alleged, similar to this case, that the employer used “entirely subjective personnel processes” to set discriminatory pay rates. Id. at 316. After the plaintiffs proved class-wide liability, the employer urged the Court to employ a Domingo-type formula approach to awarding backpay. The district court declined and instead appointed an expert to determine the amount of backpay, if any, due each class member. The expert developed a model for assessing backpay by comparing the starting pay of class members and white employees with similar qualifications, and then awarding the differential amount to those class members who suffered an actual loss. Id. at 319. The district court’s individualized procedure was affirmed on appeal. Id. at 315–19 (“The fact that a class is large does not mean that pro rata [formula] relief should automatically be ordered.... [T]here should be, if possible, a determination on an individual basis as to which class members are entitled to damages and the amount of such recovery.”).
Notably, Shipes makes no mention of any need for Teamsters hearings or any kind of employer participation in the process of determining which employees are entitled to backpay, instead relying exclusively on corporate records. Shipes, 987 F.2d at 317–19. This is consistent with the fact that Teamsters was not an equal pay (nor a formula) case, but a hiring/promotion case that required determinations that could not be capably captured in that case by objective data. Indeed, where, as here, the actual victims of any discriminatory pay policy, and the amount of lost pay due, can be determined based on objective data, a remedy-phase Teamsters minihearing is simply unnecessary. See also Liberles v. County of Cook, 709 F.2d 1122, 1127, 1136 (7th Cir.1983) (where backpay is awarded for salary discrimination alone, and where evidence of pay rates and comparative qualifications exists, “individualized hearings are unnecessary”).
In sum, the Court is satisfied that the actual victims of a

proven discriminatory pay policy can be sufficiently identified and compensated through reference to corporate records, and that this can be done on an individualized basis without resort to a Domingo-type formula and without the need for Teamsters *186 hearings.56 Accordingly, the Court rejects Defendant’s contention that a manageable remedial process for awarding backpay as compensation for equal pay violations cannot be fashioned in this case.57

56

While Plaintiffs in their briefing assumed the use of a

formula to calculate backpay for both promotion and

equal pay claims, at oral argument Plaintiffs’ counsel

was “fully supportive” of the approach taken herein.

Oral Arg. Tr. at 70.

57

Defendant notes that it took the Shipes expert several

years to complete the process for a much smaller class,

and suggests that such a process would therefore be

unmanageable in a case of this scope. See Shipes, 987

F.2d at 315. While the reason for the length of time in

Shipes is not apparent, this Court is confident that

advances in technology since the Shipes decision in

1993, combined with the sophistication of Defendant’s

database, will allow for a backpay award process to

proceed at a manageable pace in this case.

c. The 1991 Civil Rights Act [23] In a final attempt to demonstrate the unmanageability of Plaintiffs’ promotion and equal pay claims, Defendant invokes the Civil Rights Act of 1991, Pub.L. No. 108– 198, 105 Stat. 1071 (1991); 42 U.S.C. § 2000e. Specifically, Defendant argues that this Act entitles it to present a “mixed-motive” defense with respect to each class member, which would necessitate individualized hearings. See 42 U.S.C. § 2000e–5(g)(2)(B). While neither party has cited cases applying the “mixed motive” defense in a class action context, Defendant’s argument completely lacks merit since, in any event, Plaintiffs have elected “to pursue their claims solely under [a 42 U.S.C.] § 2000e–2(a) [single-motive theory].” Plaintiffs’ Reply at 25 (emphasis in original).
Title VII makes it an “unlawful employment practice for an employer ... to discriminate against any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1) (emphasis added). Courts commonly view the causation issue in employment discrimination cases by separating them into two categories. In “single-motive” cases, causation is seen as a binary question where the true basis for the adverse employment action is either legal or illegal. See Costa v. Desert Palace, Inc. (Costa II), 299 F.3d 838, 856 (9th Cir.2002), aff’d, 539 U.S. 90, 123 S.Ct. 2148, 156
43

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)

L.Ed.2d 84 (2003). In “mixed-motive” cases, the factfinder concludes that the adverse action was the result of a combination of both legal and illegal factors. Id.
In Price Waterhouse, the Supreme Court held that a finding of mixed-motives would provide a complete defense. 490 U.S. at 244, 261, 109 S.Ct. 1775. In response, Congress amended Title VII in 1991, allowing plaintiffs to prevail in a mixed motive case. See 42 U.S.C. § 2000e–2(m). Congress further provided, however, that in such cases, the employer can limit the plaintiff’s remedies to declaratory relief, certain types of injunctive relief, and attorney’s fees and costs, if the employer successfully demonstrates that it would have taken the same action in the absence of the impermissible motivating factor. 42 U.S.C. § 2000e–5(g)(2)(B). This defense is generally referred to as the “same decision affirmative defense.” See, e.g., Costa II, 299 F.3d at 857.
Nothing in the “mixed-motive” provisions of the 1991 Civil Rights Act—which were enacted to strengthen and expand employee rights under Title VII58—or the governing case law, create any manageability concerns in this case. First, in practical terms, the 1991 amendments do not affect the presentation of evidence at the liability phase. As the Ninth Circuit explained in Costa II:

58

“The Civil Rights Act of 1991 ... was enacted to restore

civil rights limited by then-recent Supreme Court

decisions and to ‘strengthen existing protections and

remedies available under federal civil rights laws to

provide more effective deterrence and adequate

compensation for victims of discrimination.’ ” E.E.O.C.

v. Luce, Forward, Hamilton & Scripps (“Luce”), 345

F.3d 742, 747 (9th Cir.2003), quoting H.R.Rep. No.

102–40(II), at 1 (1991), reprinted in 1991 U.S.S.C.A.N.

549; Duffield v. Robertson Stephens & Co., 144 F.3d

1182, 1192 (9th Cir.1998), overruled on other grounds

by Luce, 345 F.3d 742 (“The purpose of the Act was

uniformly to expand employees’ rights and ‘to increase

the possible remedies available to civil rights

plaintiffs.’ ”) (citation omitted) (emphasis in original).

[W]e emphasize that there are not two fundamentally different types of Title VII cases. In some cases, the employer may be entitled to the “same decision” affirmative *187 defense instruction. In others, it may not. The employee’s ultimate burden of proof in all cases remains the same: to show by a preponderance of the evidence that the challenged employment decision was “because of” discrimination. Costa II, 299 F.3d at 857. Thus, at trial both parties will present evidence on the issue of whether any disparities between male and female employees with respect to pay and promotion are the result of a pattern and practice of intentional gender discrimination or legitimate factors. As discussed above, the liability

phase of the case focuses on the class as a whole, not individualized employment decisions. Thus, the “same decision” defense with respect to individual class members will play no role in the liability phase of this case. If a jury finds, in the liability phase, that Plaintiffs have proven a pattern of intentional gender discrimination, and that Wal–Mart’s evidence has failed to show that one or more legitimate motives accounted in part for that discrimination, then Plaintiffs will prevail on their single motive theory. In that event, the Act would provide no basis for the assertion of a “same decision” defense at the remedy stage since, by the explicit statutory language, such defense applies only where the illegal conduct was the result of mixed-motives. See 42 U.S.C.2000e– 5(g)(2)(B) (limiting “same decision” defense to “claim[s] in which an individual proves a violation under section 2000e–2(m) [the mixed-motive provision]”); Desert Palace, Inc. v. Costa (Costa I), 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003).
If the jury finds that the challenged conduct results either from entirely legitimate factors or a mix of legitimate factors and illegal discrimination, then the claims for lost pay and punitive damages will conclude in Defendant’s favor, given Plaintiffs’ election to forego seeking the full panoply of remedies that would require adjudication of a “same-decision” defense. Thus, Plaintiffs are not attempting to unilaterally manipulate the trial proceedings, as Defendant suggests; rather, they simply have elected to forego a certain potential remedies to which they might otherwise be entitled. Given all of the above, it is clear that the “same decision” defense—which only pertains to the scope of the remedy—will not be an issue in this case regardless of whether Plaintiffs or Defendant prevails at the liability phase. Accordingly, the Court rejects Defendant’s argument that the 1991 Civil Rights Act prevents certification of a class in this case.
CONCLUSION
For all of the foregoing reasons, this Court finds that Plaintiffs’ motion for class certification should be granted in part, and denied in part, consistent with this decision and as set forth below. This Court retains, of course, the discretion to revisit this certification should unexpected circumstances arise. As the Ninth Circuit has explained, “[b]ecause class actions vary so widely in their circumstances, the trial judge is vested with broad discretionary control over the conduct of such actions enabling the presiding judge to respond fluidly to the varying needs of particular cases.” Officers for Justice v. Civil Service Comm’n, 688 F.2d 615, 633 (9th Cir.1982). Indeed, district courts have the inherent discretion to review class certification decisions at any time.
44

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004)
Armstrong, 275 F.3d at 872, n. 28; Barefield, 1988 WL 188433 (N.D.Cal.1988) (class certification orders are “inherently tentative and may be modified as circumstances require”).
Based on the current record, however, the Court is well satisfied that Plaintiffs have met their burden of demonstrating that each of the Fed. R. Civ. Proc. 23(a) requirements are satisfied, as follows:
1. Numerosity: This factor is not contested, and the Court finds joinder would be impracticable in this case.
2. Commonality: Plaintiffs have satisfied their burden of showing the existence of significant legal and factual issues concerning Defendant’s alleged company-wide discriminatory pay and promotion policies that are common to the entire class. In particular, Plaintiffs have provided:
(a) evidence of common company policies and practices, including subjective decision-making, a culture of corporate uniformity, and gender stereotyping;
*188 (b) expert opinion establishing statistical evidence of gender disparities which support an inference of company-wide discrimination in both pay and promotions; and
(c) anecdotal evidence from class members of discriminatory attitudes held or tolerated by management.
3. Typicality: Plaintiffs have satisfactorily shown that the claims of the named plaintiffs are reasonably co-extensive with those of the class as a whole.
4. Adequacy: Plaintiffs have satisfactorily shown that the interests of the class representatives do not conflict with those of the class members. Class counsel are qualified to conduct this litigation.
Plaintiffs also have met their burden of demonstrating that the requirements of Fed. R. Civ. Proc. 23(b)(2) are satisfied here in that Defendant “has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” As discussed above, however, the class shall be afforded notice and an opportunity to opt-out in order to satisfy due process considerations.
The Court further concludes that Plaintiffs’ claim for equal pay is manageable with respect to issues of liability and all forms of requested relief. Finally, the Court finds that Plaintiffs’ promotion claim is manageable with respect to issues of liability and injunctive and declaratory

relief. The Court finds, however, that with respect to the remedy of lost pay, it is manageable only with respect to those challenged promotions where objective data is available to document class member interest in the respective challenged promotion. Thus, the Court denies certification, on grounds of unmanageability, with respect to Plaintiffs’ promotion claims for lost pay (and hence punitive damages) as to those class members for whom no such data is available.
Accordingly, and good cause appearing, it is HEREBY ORDERED as follows:
1. Plaintiffs’ Motion for Class Certification is GRANTED IN PART and DENIED IN PART consistent with this decision.
2. The Court certifies the following class for purposes of liability, injunctive and declaratory relief, punitive damages,59 and lost pay, except that class members for whom there is no available objective data documenting their interest in challenged promotions shall be limited to injunctive and declaratory relief with respect to plaintiffs’ promotion claim:

59

The Court emphasizes that in the event Plaintiffs are

able to establish liability, punitive damages would not

flow automatically from such a finding. Rather, only

those class members who establish that they are entitled

to an award of lost pay, and thus demonstrate individual

harm from Defendant’s conduct, would be eligible to

receive such damages. See section II.A. The Court

further notes that the fact that this subset of the class is

not identifiable now does not preclude class notice at

this juncture. Class action notices are typically sent to

all class members who may be entitled to recover, not

to those whose right to recover has already been

established.

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. 3. This action shall be bifurcated into separate liability and remedy phases.
4. The individual racial discrimination claims asserted by named plaintiffs Betty Dukes and Cleo Page shall be severed from the class case.
5. The parties shall appear on Wednesday, July 28, 2004 at 2:00 p.m. for a status conference to discuss the issue of notice to the class, and other scheduling and case management issues. A Joint Status Statement shall be filed no later than 10 days in advance of the status
45

Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (2004) conference. IT IS SO ORDERED.

Parallel Citations
93 Fair Empl.Prac.Cas. (BNA) 1629, 85 Empl. Prac. Dec. P 41,688, 58 Fed.R.Serv.3d 905
	  

46

 
 Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)
222 F.R.D. 189 United States District Court,
N.D. California.
Betty DUKES, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine
Kwapnoski, and Edith Arana, on behalf of themselves and all others similarly situated, et al.,
Plaintiffs, v.
WAL-MART, INC., Defendant.
No. C01-02252 MJJ. | June 21, 2004.
Attorneys and Law Firms
*190 Nancy L. Abell, Paul, Hastings, Janofsky & Walker LLP, Los Angeles, CA, Katherine A. Alberts, Jones Day, San Francisco, CA, Steven T. Catlett, Lawrence C. DiNardo, John L. Strauch, Jones, Day, Reavis & Pogue, Chicago, IL, Catherine M. Dacre, Gilmore F. Diekmann, Jr., Janine Simerly, Seyforth, Shaw, LLP, San Francisco, CA, John W. Edwards, Jones, Day, Reavis & Pogue, Menlo Park, CA, Katherine C. Huibonhoa, Paul, Hastings, Janofsky & Walker LLP, San Francisco, CA, Barbara L. Johnson, Neal D. Mollen, Paul, Hastings, Janofsky & Walker LLP, Washington, DC, for defendant.
Merit Bennett, Charles V. Firth, Tinkler & Firth, Santa Fe, NM, Debra Gardner, Baltimore, MD, Jocelyn D. Larkin, Brad Seligman, The Impact Fund, Berkeley, CA, Elizabeth Lawrence, Davis, Cowell & Bowe, Shauna Marshall, Hastings College of the Law, Doris Ng, Equal Rights Advocates, San Francisco, CA, Joseph Sellers, Deborah Vagins, Christine E. Webber, Cohen, Milstein, Hausfeld & Toll, Washington, DC, Jonathan Smith, Public Justice Center, Baltimore, MD, Steve Stemerman, Davis, Cowell & Bowe, Sheila Thomas Equal Rights Advocates, San Francisco, CA, Stephen Tinkler, Tinkler & Bennett, Santa Fe, NM, for plaintiffs.
Opinion
ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ AND DEFENDANT’S
MOTIONS TO STRIKE EXPERT AND NONEXPERT TESTIMONY
JENKINS, District Judge.
INTRODUCTION

In conjunction with the Motion for Class Certification, both parties have filed a number of motions to strike particular portions of the evidence. With respect to the expert testimony, Defendant moves to strike the declarations of William Bielby and Marc *191 Bendick in their entirety, and a small portion of the declaration of Richard Drogin. Plaintiffs move to strike portions of the declaration of Joan Haworth. With respect to the nonexpert testimony, Defendant moves to strike portions of the declarations of the named plaintiffs and designated class members while Plaintiffs move to strike declarations filed by store managers. The Court discusses each motion in turn.

DISCUSSION

I. MOTIONS TO STRIKE EXPERT TESTIMONY
A. Legal Standard As discussed in the Court’s Order Granting in Part and Denying in Part Plaintiffs’ Motion for Class Certification, filed simultaneously herewith (“Class Certification Order”), arguments on the merits are improper at this stage of the proceedings. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (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 maintained 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”). Accordingly, courts should avoid resolving “the battle of the experts.” See Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292-93 (2d Cir.1999) (district court may not weigh conflicting expert evidence or engage in “statistical dueling” of experts). Indeed, courts should not even apply the full Daubert “gatekeeper” standard at this stage. See Daubert v. Merrell Dow Pharms. Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).1 Rather, “[i]t is clear to the Court that a lower Daubert standard should be employed at this [class certification] stage of the proceedings.” Thomas & Thomas Rodmakers, Inc. v. Newport Adhesives and Composites, Inc., 209 F.R.D. 159, 162-63 (C.D.Cal.2002); see also O’Connor v. Boeing North American, Inc., 184 F.R.D. 311, 321 n. 7 (C.D.Cal.1998) (Daubert inquiry inappropriate at class certification stage).

1

In Daubert, the Court charged trial judges with the

responsibility of acting as gatekeepers at trial to “

‘ensure that any and all scientific testimony ... is not

1

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)
only relevant, but reliable.’ ” 509 U.S. at 589, 113 S.Ct. 2786 (citation omitted). In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147-48, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the Court clarified that this gatekeeper function applies to all expert testimony, not just testimony based in science. As the Ninth Circuit has explained, the district court’s role under Daubert is to separate inadmissible opinions based on “junk science” from those based on scientific method. Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F.3d 594, 597 (9th Cir.1996).
[1] This does not mean, however, that courts must uncritically accept all expert evidence that is offered in support of, or against, class certification. Rather, the question is whether the expert evidence is sufficiently probative to be useful in evaluating whether class certification requirements have been met. See In re Polypropylene Carpet Antitrust Litigation, 996 F.Supp. 18, 26 (N.D.Ga.1997) (at class certification stage court only examined whether the expert’s methodology will (a) comport with basic principles, (b) have any probative value, and (c) primarily use evidence that is common to all members of the proposed class); Bacon v. Honda of America Mfg., Inc., 205 F.R.D. 466, 470-71 (S.D.Ohio 2001) (“ ‘For common questions to exist, plaintiffs’ statistical evidence must logically support the inference of discrimination against the class asserted.’ ”) (citation omitted); see also Dean v. The Boeing Co., 2003 U.S. Dist. LEXIS 8787 at *33-35 (D.Kansas) (at class certification stage, court should only determine whether expert testimony is so fatally flawed as to be inadmissible as a matter of law). It is with these principles in mind that the Court considers the parties’ respective motions.
B. Defendant’s Motion to Strike Declaration of William Bielby [2] As discussed in the Class Certification Order, Dr. Bielby conducted a “social framework analysis” by combining an extensive review of documents and deposition testimony regarding Wal-Mart’s culture and practices with his knowledge of the professional *192 research and literature in the field. This is an acceptable social science methodology. Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36, 255, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (considering similar evidence by an expert social psychologist); Fed.R.Evid. 702 (referring to “scientific, technical, or other specialized knowledge”). Dr. Bielby’s testimony on sex stereotyping also has been admitted in prior cases in this district. See Butler v. Home Depot, Inc., 984 F.Supp. 1257, 1265 (N.D.Cal.1997); Stender v. Lucky Stores, Inc., 803 F.Supp. 259, 301-03, 327 (N.D.Cal.1992).2

2

Defendant does not challenge Dr. Bielby’s

qualifications as an expert.

Defendant raises a plethora of challenges to Dr. Bielby’s opinions. Having reviewed them, the Court concludes that they are of the type that go to the weight, rather than the admissibility, of the evidence. The most significant criticism is that Dr. Bielby cannot determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition, for example, Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking. See Def.’s Mtn. to Strike re Bielby at 9 (citing Bielby Depo. at 87-88, 16162, 370-71). While this could present a difficulty for Plaintiffs at trial, the question here is whether Dr. Bielby’s opinion is so flawed that it lacks sufficient probative value to be considered in assessing commonality.

Plaintiffs concede that Dr. Bielby cannot quantify the degree of gender stereotyping at Wal-Mart, but argue that such quantification is not necessary.3 See Pls.’ Opp. re Motion to Strike re Bielby at 11. They point to Price Waterhouse, in which the trial court relied on a social psychologist’s testimony that the defendant 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 stereotyping.” Price Waterhouse, 490 U.S. at 235-36, 109 S.Ct. 1775; cf. Costa v. Desert Palace, Inc., 299 F.3d 838, 861 (9th Cir.2002), aff’d, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003) (recognizing relevance of lay testimony regarding gender stereotyping).

3

Plaintiffs further argue that the impact of even small

decisions accumulates over the course of employees’

careers. But this argument misses the mark.

Defendant’s point is that there may be a very small

total number of decisions affected by sex stereotyping,

not that there are numerous decisions that are

qualitatively too insignificant to matter.

The Court is further guided by Daubert v. Merrell Dow Pharm., Inc. (Daubert II), 43 F.3d 1311, 1316 (9th Cir.1995), in which the Ninth Circuit stated 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.’ ” Id., quoting Daubert I, 509 U.S. 579, 113 S.Ct. 2786. The Ninth Circuit continued: “Our task, then, is to analyze not what the experts say, but what basis they have for saying it.” Daubert II, 43 F.3d at 1316. The Court is satisfied that Dr. Bilby’s opinion-while subject to critique-is based on
2

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)
valid principles. Thus, it is sufficiently probative to assist the Court in evaluating the class certification requirements at issue in this case. Accordingly, Defendant’s motion to strike Dr. Bilby’s declaration is denied.
C. Defendant’s Motion to Strike Declaration of Marc Bendick Defendant moves to strike the entire declaration of Plaintiffs’ expert labor economist, Dr. Marc Bendick on the grounds that (1) Plaintiffs should not be allowed to profit from Dr. Bendick’s alleged misuse of Equal Employment Opportunity Commission (“EEOC”) confidential material, and (2) Dr. Bendick’s testimony should be rejected on the merits.
1. Dr. Bendick’s Use of EEO-1 Data [3] As discussed in the Class Certification Order, Dr. Bendick performed a benchmarking analysis to compare Wal-Mart’s female promotion rates into salaried in-store management positions with that of similarly situated companies. He derived the data on *193 the comparator companies mostly from the EEOC in the form of “EEO1” reports. Defendant contends that the EEO-1 data is confidential, that Dr. Bendick obtained it through false pretenses, that his use of the data in this litigation is a crime, and that Plaintiffs failed to fully produce the EEO1 data in discovery. The Court concludes, after fully considering Defendant’s objections, that there is no basis to strike the declaration.
a. Whether Dr. Bendick Violated EEOC Regulations Under authority granted by Title VII, the EEOC collects statistics on the gender and racial composition of the workforce for all employers with 100 or more employees. 42 U.S.C. § 2000e-8(c)(3). Companies are required to submit this data-referred to as EE0-1 reports-on an annual basis. 29 C.F.R. § 1602.7; 41 C.F.R. § 60-1.7. The EEOC assembles this wealth of data and generally aggregates it into groupings of at least three responding entities per data set, without revealing the identities of the entities in order to preserve a level of confidentiality for the reporting companies. See 29 C.F.R. § 1610.18(a). EEOC officials are barred from breaching the confidentiality of reporting entities. 42 U.S.C. § 2000e-8(c)(3) & § 2000e8(e). Notably, the regulations do not explicitly apply to anyone other than the EEOC.
Dr. Bendick received EEO-1 data in anonymous disaggregated form (i.e. the data is separately reported for each individual, albeit unidentified, company) from EEOC officials for research in connection with a

foundation grant. EEOC staff have submitted declarations stating that they produced the EEO-1 data to Dr. Bendick in disaggregated form on the understanding that it would be used exclusively for research and not for litigation, and consider Dr. Bendick’s use of the data in this case to be a breach of good faith. See Neckere Decl. ¶¶ 5, 12; Edwards Decl. Dr. Bendick, in contrast, has testified in deposition that he apprised the EEOC that he would use the data for more than just research. The Court need not resolve this credibility contest, because, as discussed below, defendant has failed to identify any law or regulation that would create a use-limitation duty for Dr. Bendick.
First, the applicable regulation, which provides that the EEOC routinely will make available aggregated EEO-1 data, does not bar the EEOC from ever releasing disaggregated data, just so long as confidentiality is protected. See 29 C.F.R. § 1610.18(a). Indeed, in this instance the EEOC officials presumably were following their own understanding of the law when providing Dr. Bendick with the information in the first place, and Mr. Neckere states that disaggregated, anonymous EEO-1 data has been provided to other individuals “a couple of other times in the past several years.” See Neckere Decl. ¶ 10. Moreover, even if the regulation strictly forbade disclosure of all disaggregated data, it still does not appear to apply to private individuals, but rather governs only the EEOC’s actions.
Second, while Defendant criticizes Dr. Bendick for figuring out the identities of some of the reporting companies in the EEO-1 reports, there does not appear to be any law or regulation prohibiting a private individual from making such assessments. Moreover, Dr. Bendick obtained Wal-Mart’s EEO-1 reporting number legitimately through discovery in this litigation. He determined Target’s EEO-1 identity because the company volunteered the information to Plaintiffs. For the other companies, Dr. Bendick has only determined that, taken as a group, the largest sets of data belong to well known large retailers (such as Costco and J.C. Penny) but he cannot (and does not) identify which company matches which particular data set. Bendick Decl. ¶ ¶ 21-23. Accordingly, Defendant has failed to establish that Dr. Bendick breached any confidentiality obligation. At worst, Dr. Bendick may have misled the EEOC with respect to the purposes for which the data would be used. But this interpretation of the facts is open to question. Regardless, the Court is not persuaded that legal or other grounds justify sanctioning Plaintiffs by striking Dr. Bendick’s declaration.
*194 b. Production of the Full EEO-1 Data [4] Defendant also complains that Plaintiffs produced in discovery only the EEO-1 data that Dr. Bendick used from the companies he selected, rather than producing the
3

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)
entire database received from the EEOC. See Def.’s Motion to Strike re Bendick at 8; Haworth Decl. ¶ 309. Thus, Defendant contends that it is limited in its ability to challenge Dr. Bendick’s conclusions by analyzing the full data set in its own manner. Defendant presents this argument as “a matter of equity.” Def.’s Motion at 8. However, it is clear that Defendant never properly requested the entire data file. Its deposition subpoena demanded “all of the data on which he [Dr. Bendick] relied for his opinions in this case.” Defendant did not ask for the entire data set that Dr. Bendick received from the EEOC. It is telling that Defendant did not move to compel further production at the time, and it is far too late now to attempt the equivalent in the context of these proceedings.
Furthermore, it appears that the data produced by Dr. Bendick included all EEO-1 reports for all companies of all sizes in every industrial category comparable to WalMart. Upon review of Dr. Haworth’s analysis of the benchmarking issue, the Court observes that she had access to a wide range of data that goes well beyond just the twenty comparator companies that Dr. Bendick selected. In fact, she did an extensive analysis of all companies reporting to the EEOC in seven general industrial groupings, which was sufficient data for her to draw her own conclusion in opposition to Dr. Bendick. See Haworth Decl. ¶ 310. Thus, Defendant’s argument that all it could do was to “check Bendick’s math on his self-defined 20 ‘comparators’ ” is not supported by the record. See Def.’s Reply re Motion to Strike Bendick at 5. Further, while Defendant argues that it might have been able to find something in the full data set to support its position, it fails to show that there are any industry categories missing from the data that are comparable to Wal-Mart.
2. Defendant’s Arguments on the Merits [5] Besides its evidentiary objections to the use of the EEO-1 data, defendant raises various challenges to Dr. Bendick’s expert opinion on the merits, none of which justify striking the declaration under the standards set forth above. First, Defendant argues that Dr. Bendick’s analysis is flawed because he did not base his analysis on Wal-Mart’s limited internal applicant flow data. As discussed in the Class Certification Order, however, this objection is an insufficient basis for striking Dr. Bendick’s declaration. See Class Certification Order, section I.B.2.b(3). Rather, where, as here, actual applicant flow data is very limited, alternative means of determining whether a promotion shortfall exists for women are appropriate, including the benchmarking method. Id.
Second, Defendant argues that Dr. Bendick “ ‘cherrypicked’ his comparators from a few, narrow lines of business, such as traditional department and general

discount stores, where managers historically are largely female.” Def.’s Motion to Strike re Bendick at 14. Again, as explained in the Class Certification Order, the record does not support this contention. Further, Defendant’s criticism of Dr. Bendick’s benchmarking analysis is of the type that clearly goes to the weight, rather than the admissibility, of the evidence.
Third, Defendant contends that Dr. Bendick’s choice of comparators is flawed because Wal-Mart, in contrast to other retailers, does not include its Department Managers (the lowest hourly management position), which are 75 percent female, in its EEO-1 managers category. Inclusion of this category would raise Wal-Mart’s representation of women among all in-store managers from 34.5 percent to 63 percent, making their representation in management better rather than worse than the comparators. Defendant’s argument, however, is based on speculation, and is not supported by any evidence in the record. Moreover, Dr. Bendick tested Wal-Mart’s hypothesis in a number of ways and concluded that it was extremely unlikely that Wal-Mart and the comparators had significantly different *195 managerial reporting protocols.4 Although Defendant had the opportunity to respond to these tests, it failed even to mention them. Accordingly, the Court finds Dr. Bendick’s opinion sufficiently probative to assist the Court in evaluating the class certification requirements at issue in this case, and therefore declines to strike Dr. Bendick’s declaration.5

4

Dr. Bendick calculated the average number of

managers per store in both Wal-Mart and the

comparators, and he arrived at essentially the same

number for both. He also did a more specific test by

comparing the number of female managers at Wal-Mart

with the number of female managers at the comparator

firms with essentially the same number of managers per

store. This refined comparison increased the disparity

between Wal-Mart and the comparators in the

proportion of women in management. Bendick Decl. ¶¶

36-41.

5

Defendant also notes that Dr. Bendick’s testimony has

been rejected by the Sixth and Eleventh Circuits. See

Middleton v. City of Flint, 92 F.3d 396, 406 (6th

Cir.1996); United States v. City of Miami, 115 F.3d

870, 872 (11th Cir.1997). However, those cases are

readily distinguishable. In Middleton, Dr. Bendick used

the city’s general labor pool as the relevant population

for comparison, and in City of Miami he used general

census data. The courts generally are skeptical of using

such generalized sources because census and general

population data are likely to contain many people who

would not be qualified or interested in the particular

jobs at issue in a given case. Here, in contrast, Dr.

Bendick corrected for that problem by using a far more

narrowly focused source for comparison, i.e. female

4

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)
retail employees at large chain stores. This methodology comports with general benchmarking practices and is similar to comparisons that have been generally accepted by the courts. See, e.g., International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 337 n. 17, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Furthermore, the Court notes that Dr. Bendick’s testimony has been accepted by courts in well over a dozen cases. See, e.g., Butler v. Home Depot, 1997 WL 605754 at *5 (N.D.Cal. Aug. 29, 1997).
D. Defendant’s Motion to Strike Portion of Declaration of Richard Drogin Defendant moves to strike a minor portion of the declaration of Plaintiffs’ statistician, Dr. Richard Drogin, due to an error in one of his computations. This motion was filed after Plaintiffs’ class certification reply brief was filed. While it would be appropriate for the Court to deny this motion as untimely, the Court exercises its discretion to address the merits of the motion. As discussed more fully in the Class Certification Order, Drs. Drogin and Haworth conducted separate regression analyses to determine whether Wal-Mart has engaged in gender discrimination with respect to pay. Each expert used different approaches-Dr. Drogin analyzed the data at the regional level, and Dr. Haworth analyzed the data at the store sub-unit level. After Dr. Haworth submitted her store sub-unit regression analyses, Dr. Drogin took all of Dr. Haworth’s sub-unit analyses and aggregated the results. Based on this calculation, he reported that even Defendant’s methodology shows an average pay shortfall for women of 12 cents per hour. Defendant subsequently pointed out that Dr. Drogin had double-counted certain data, and that the 12 cents differential should be reduced to nine cents, a point which Dr. Drogin concedes. Suppl. Drogin Decl. in Support of Plaintiffs’ Reply re Motion for Class Certification ¶ 5. Accordingly, Defendant’s motion is granted. The Court, notes, however, that this ruling does not affect the Court’s determination of the class certification issues since this correction does not pertain to the inference of discrimination that arises from Dr. Drogin’s own regression analyses.
E. Plaintiffs’ Motions to Strike Portions of Declaration of Joan Haworth
1. Motion to Strike re Regression Analyses [6] Plaintiffs move to strike twelve separate portions of the declaration of Defendant’s statistical expert, Dr. Joan Haworth, as a sanction under Federal Rule of Civil Procedure 37(c)(1) because Dr. Haworth did not timely disclose the full extent of her expert testimony pursuant to Federal Rule of Civil Procedure 26(a)(2).6

6

Federal Rule of Civil Procedure 26(a)(2) provides that

parties must make an initial disclosure of each expert

who may appear at trial, and that the disclosure must be

accompanied by a written report containing a complete

statement of all opinions to be expressed by the expert.

In order to exclude evidence under Rule 37(c)(1), the Court must find that the *196 Rule 26(a) violation was both unjustified and prejudicial to plaintiffs:
A party that without substantial justification fails to disclose information required by Rule 26(a) ... is not, unless such failure is harmless, permitted to use as evidence ... on a motion ... information not so disclosed.
Fed. R. Civ. Proc. 37(c)(1) (emphasis added); Salgado v. General Motors Corp., 150 F.3d 735, 742 (7th Cir.1998).
The parties stipulated to an expert discovery schedule. See Stipulation and Order Regarding Discovery and Class Certification Deadlines and Other Matters, filed November 26, 2002. Dr. Haworth timely filed her report, then amended it three days before her deposition, and provided a new disk with back-up data supporting her analyses at her deposition. Subsequently, Dr. Haworth submitted a declaration in support of Defendant’s opposition to class certification, which contains a number of changes from her original report. As one measure of the difference, her original report is 118 pages long, while her declaration is 178 pages long. The declaration substantively differs from the original report by responding to certain assertions in Dr. Drogin’s rebuttal expert report, by summarizing information that was included in tables or in cursory fashion in the report, and by expanding on her earlier tests.
While Defendant’s justifications for these changes vary, the Court need not address them in detail because Plaintiffs fail to establish sufficient prejudice. The only issue of prejudice worthy of discussion here is in regard to the “Chow” test. As discussed in the Class Certification Order, Defendant argues that Dr. Drogin’s approach is flawed because he failed to apply the Chow test prior to aggregating his data on the regional level. In her report, Dr. Haworth stated that she conducted a Chow test and “found that it was statistically inappropriate to pool all ... hourly associates in one regression model” as Dr. Drogin did. Haworth Report at 106 (Suppl. Seligman Decl. re Motion to Strike Haworth, Ex. 3). Plaintiffs argue that the Chow test referenced in the report was conducted on her own model, and that she never said that she had conducted a Chow test on Dr. Drogin’s model until
5

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)
submitting her declaration; thus, using the Chow test to directly attack Dr. Drogin is untimely. See Haworth Decl. ¶ 183. Neither party, however, has provided sufficient details of how the Chow test is actually performed to enable the Court to satisfactorily assess the import of whose model is subjected to the Chow test. Accordingly, Plaintiffs have not met their burden of demonstrating prejudice.
2. Motion to Strike References to Store Manager Survey [7] Dr. Haworth’s declaration relies in part on a survey undertaken by Defendant of a number of its store managers. Plaintiffs contend that the survey is so inherently flawed and biased that it does not meet the standards of Federal Rules of Evidence (“FRE”) 702 and 703. Accordingly, Plaintiffs move to strike those portions of her declaration which discuss the survey.
FRE 702 provides that an expert’s testimony must be “the product of reliable principles and methods.” FRE 703 provides that the facts or data relied upon by an expert need not be independently admissible so long as the evidence is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” The party proffering the expert has the burden of showing that the requirements for admissibility of the expert’s testimony have been satisfied. See Lust by and through Lust v. Merrill Dow Pharmaceuticals, Inc., 89 F.3d 594, 598 (9th Cir.1996); Bennett v. PRC Public Sector, Inc., 931 F.Supp. 484, 489-90 (S.D.Tex.1996).
The survey at issue consists of declarations obtained from 239 Wal-Mart store managers randomly selected by Defendant. Each store manager was asked a series of identical questions about a number of issues, including the factors they use to set pay rates and make job placement decisions. The answers from each store manager were recorded in declaration form, the store manager signed the declarations, and the results were tallied. See Seligman Decl. in Support of Pls.’ Motion to Strike Store Manager Declarations, Ex. 4 (sample declaration). Dr. Haworth relies on the survey results to (1) challenge Dr. Drogin’s decision to aggregate and analyze data at the regional level, and (2) support her own *197 decision to disaggregate and analyze data on a store sub-unit by sub-unit basis.
It is undisputed that Defendant’s counsel and Defendant developed and prepared the survey instrument and administered the survey. See, e.g., Haworth Depo. at 255:13-22 (Seligman Decl. Ex. 6). (“My understanding is the attorneys recorded the information that the store managers were giving them”). Indeed, Defendant refused to respond to Plaintiffs’ discovery requests regarding the design and administration of the survey on grounds of attorney-client privilege. In addition, Defendant does not

dispute that the surveyed managers knew that the surveys were being utilized in connection with this litigation. Dr. Haworth also is on record as stating that she told a least one lawyer for Defendant that having the attorneys conduct the survey was not a good idea because “typically it’s difficult for an attorney to collect the information in a neutral environment so that they truly get a neutral set of information back.” Haworth Depo. at 254:14-17.

The survey instrument in this case also is biased on its face. For example, instead of asking Store Managers opened-ended questions, such as “what factors do you rely upon in setting individual pay rates?” the survey provided Store Managers with a set list of over 100 suggestive factors, with the chance to add additional factors tacked on at the very end. See Seligman Decl., Ex. 4 at ¶ 13. The sex of the employee was never identified as a possible factor. Another question was based on the express assumption that the Store Manager encouraged women to apply for the management trainee program. Id. at ¶ 16.

In sum, the record demonstrates that the survey was designed and administered by counsel in the midst of litigation, the interviewees knew the survey was related to the litigation, and the survey instrument exhibits bias on its face. Taken together, these factors plainly demonstrate that the results from the survey 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.” Fed.R.Evid. 702, 703. Even Dr. Haworth conceded, after Plaintiffs obtained an opinion from an expert in survey methods, that the declarations do not qualify as a valid survey because the data was not collected in “an anonymous and neutral setting.” Haworth Decl. at 93, n. 114; Seligman Decl., Ex. 7; Presser Decl. (expert opinion that “the survey of Wal-Mart managers does not meet generally accepted standards for the conduct and reporting of surveys”).

Not surprisingly, courts have refused to allow surveys made under such circumstances, usually rejecting them on grounds of being unreliable hearsay. See, e.g., Pittsburgh Press Club v. United States, 579 F.2d 751, 756-57 (3rd Cir.1978) (survey must be conducted independently of attorneys involved in the litigation and respondents should not be aware of purpose of the survey); Yapp v. Union Pacific Railroad Co., 301 F.Supp.2d 1030, 1037(E.D.Mo.2004) (rejecting experts’ survey where there was “heavy involvement of defense counsel in [its] design and conduct”); Gibson v. County of Riverside, 181 F.Supp.2d 1057, 1067-68 (C.D.Cal.2002) (same); Delgado v. McTighe, 91 F.R.D. 76, 80-81 (E.D.Pa.1981) (same).7

7

It is also worth noting that the fact that questionnaire

responses were collected in a declaration format does

6

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)
not assist Defendant. In both Pittsburgh and Gibson, cited above, the information also was obtained in declaration form. This did nothing to dissuade the courts from finding that the declarations constituted improperly conducted surveys.

Defendant responds that basic survey standards should not apply here because the declarations were never intended to be a “scientific survey;” rather, they are just a collection of declarations. Dr. Haworth repeatedly referred to and treated the 239 declarations as a “survey,” in both her deposition and expert report. See, e.g., Haworth Expert Report at 42-45 (Seligman Decl. Ex. 1); Haworth Depo. at 176, 238-243, 247-252 (Seligman Decl., Ex. 6). The Court flatly rejects Defendant’s disingenuous effort to re-characterize the survey at the eleventh hour as simply a collection of declarations.8

8

Indeed, given Haworth’s consistent references to the

Store Manager survey in her deposition and expert

report, her sudden abandonment of this terminology in

her declaration filed in opposition to plaintiffs’ motion

for class certification rings hollow. See, e.g., Haworth

Decl. ¶ 20 (referring instead to “declarations signed

under oath by Store Managers who were randomly

selected (according to scientifically accepted statistical

methods)”). Nor can Defendant meet its Federal Rule

of Evidence 703 burden simply by pointing to Dr.

Haworth’s wholly conclusory assertion that the store

manager declarations “are an appropriate source to

support a regression model.” Haworth Decl. ¶ 186, n.

114. An expert’s conclusory assertion that his or her

testimony is based on a type of data upon which experts

reasonably rely is not sufficient to survive a Rule 703

challenge. In re Paoli R.R Yard PCB Litigation, 35

F.3d 717, 747-48 (3rd Cir.1994); Yapp, 301 F.Supp.2d

at 1035-36.

Defendant also argues that it is reasonable and customary for experts to rely on the statements of others, including the declarations of others. While this general proposition is true, it is only “reasonable” for an expert to rely on the statements of others if *198 the statements or declarations were collected through methods calculated to elicit reliable information. Notably, the cases cited by Defendant involved instances in which the expert interviewed certain agents of the party, and the courts, after undertaking a Federal Rule of Evidence 702/703 analysis, concluded that it was reasonable for the experts to rely on the statements obtained under those circumstances. See, e.g., Int’l Adhesive Coating Co. v. Bolton Emerson Int’l Inc., 851 F.2d 540, 545 (1st Cir.1988); United States v. Affleck, 776 F.2d 1451, 1457 (10th Cir.1985). None of Defendant’s authorities permit an expert to rely on responses to questionnaires designed and administered by the party’s counsel during litigation.

Accordingly, the Court grants Plaintiffs’ motion and strikes references to the Store Manager survey from Dr. Haworth’s declaration. The Court notes, however, that this ruling does not mean that Dr. Haworth’s statistical analysis or results are excluded. It only means that she cannot rely upon the survey of store managers to attack Dr. Drogin’s aggregated analysis or as support for her decision to conduct a disaggregated analysis.9

9

The Court further notes that granting this motion does

not have a material impact on the class certification

decision. At most, the survey results, if admitted, would

merely support Dr. Haworth’s disaggregated analysis as

one possible way of analyzing the data. The survey

would not provide sufficient additional weight to

Defendant’s challenge to Dr. Drogin’s analysis to sway

the Court from its conclusion that his testimony

supports an inference of discrimination, and thus the

existence of substantial questions common to the class.

See Order re Class Certification, section I.B.2.a.(2)(a)

(discussing Dr. Drogin’s statistical analysis); see also

Haworth Decl., Appendix Vol. 2, Tab 16 (tabulation of

survey results showing that the majority of the pay rate

factors were only considered by a very small

percentage of Store Managers).

II. MOTIONS TO STRIKE NON-EXPERT TESTIMONY
A. Defendant’s Motion to Strike Portions of the Declarations of the Named Plaintiffs and Designated Class Members [8] In support of their Motion for Class Certification, Plaintiffs filed 114 declarations from the named plaintiffs and selected class members around the country. Defendant moves to strike portions of each declaration on various evidentiary grounds. All told, defendant has raised hundreds, if not thousands, of objections.
Defendant fails, however, to discuss any of the objections individually. Rather, defendant merely highlights multiple portions of each declaration (each portion ranging from a few isolated words to over a paragraph) using six different colors to correspond to different generic objections (e.g. blue for hearsay, gray for best evidence rule, yellow for relevance) and asserts that “[n]early all objections are obvious on their face.” Def.’s Reply to Mtn to Strike Declarations of Named Plaintiffs at 1; Berry Decl., Vols. I-IV.
First, one of the colors used (pink) can apply to any one of five objections (lack of personal knowledge, no foundation, conclusory, speculative or inadmissible opinion). Thus, Defendant has failed even to identify the generic objection at issue in many cases. Second, it is not obvious why many objections have been asserted and it is
7

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)

not the Court’s role to divine Defendant’s arguments. Third, Defendant appears to have made indiscriminate blanket objections. For example, Defendant appears to object to virtually all out-of-court statements as hearsay without making any effort to assess whether the statement is submitted for the truth of the *199 matter asserted or whether the statement falls within a hearsay exception.10

10

The Court also notes that Defendant wrongly asserts

that any testimony regarding events that occurred prior

to the class period (i.e. pre-dating October 1997) is

irrelevant. Even though such incidents are not

independently actionable, such evidence still may be

admitted as relevant background evidence supporting

Plaintiffs’ claims. See Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153

L.Ed.2d 106 (2002); Bouman v. Block, 940 F.2d 1211,

1218 (9th Cir.1991).

As Plaintiffs correctly object, Defendant’s attempt to assert these objections without providing any individualized discussion is procedurally defective. The objections therefore merit summary denial on the ground that they are unduly vague. Indeed, Defendant’s grossly overbroad approach is more suggestive of an intent to harass than a good faith effort to address genuine objections. Additionally, the Court’s review of a portion of the objections indicates that they are largely without merit.11 Finally, even were the Court to exclude some limited portion of some class declarations, the Court is satisfied that it would have no bearing on the outcome of Plaintiffs’ motion for class certification. Accordingly, Defendant’s motion is denied.

11

The Court, for example, has reviewed the objections to

the named plaintiffs’ declarations and concludes that

the objections typically overreach and at best go to the

weight of the evidence rather than its admissibility.

B. Plaintiffs’ Motion to Strike Store Manager Declarations [9] As discussed above, the Court grants Plaintiffs’ motion to strike references to the store manager survey from Dr. Haworth’s declaration. Defendant has, as a separate matter, also individually filed each of the 239 store manager declarations as anecdotal, percipient witness evidence. Plaintiffs move to strike these declarations as a sanction under Federal Rule of Civil Procedure 37(c)(1) because Defendant did not timely disclose 215 of the 239 store managers pursuant to Rule 26(a)(1).12 Plaintiffs also seek to recover their fees and expenses incurred in bringing this motion. Defendant responds that Plaintiffs have failed to meet the standard for demonstrating that the declarations should be excluded under Rule 37(c)(1).

12

Fed. R. Civ. Proc. 26(a)(1) provides that parties must

make an initial disclosure of each individual likely to

have discoverable information that the disclosing party

may use to support its claims or defenses.

As discussed above, in order to exclude evidence under Rule 37(c)(1), the court must find that the Rule 26(a) violation was both unjustified and prejudicial to plaintiffs. See Rule 37(c)(1); Salgado, 150 F.3d at 742. Defendant does not advance any grounds justifying its failure to disclose the information. Plaintiffs, however, fail to establish sufficient prejudice. In Plaintiffs’ opening brief they did not even assert that they suffered actual prejudice from the violation. In Plaintiffs’ reply, they argue that they were prejudiced because they were prohibited, under the Court’s Case Management Order, from taking the depositions of any store managers (other than those who supervised the named plaintiffs); they do not indicate, however, that they would have actually deposed any of the 215 managers even if given the opportunity. Nor do they explain how the inability to depose the store managers has harmed them. Since the Court does not find both lack of justification and prejudice, Plaintiffs’ motion is denied.

CONCLUSION
For the reasons set forth above, and good cause appearing, it is HEREBY ORDERED as follows consistent with the above:
Plaintiffs’ Motions 1. Motion to Strike Portions of Declaration of Joan Haworth for Failure to Comply with Fed.R.Civ.P. 26(a)(2) is DENIED.
2. Motion to Strike Portions of Declaration of Joan Haworth (Re Store Manager Survey) is GRANTED. The following portions of Dr. Haworth’s Declaration shall be stricken (references are to pages and lines): 12:7-17; 14:11-12; 29:10-14; 36:17-18 & n. 42; 83:9-12 & n. 98; 83:20 to 84:1 & n. 100; 93:3 to 99:4; 141:14-16 & n. 246; 142:16-17 & n. 249; 174:20 to 175:2.
*200 3. Motion to Strike Store Manager Declarations is DENIED.
Defendant’s Motions 1. Motion to Strike Declaration, Opinion, and Testimony
8

Dukes v. Wal-Mart, Inc., 222 F.R.D. 189 (2004)

of Plaintiffs’ Expert William T. Bielby is DENIED.
2. Motion to Strike Declaration of Mark Bendick is DENIED.
3. Motion to Strike Portions of Declaration of Richard Drogin is GRANTED.
4. Motion to Strike Portions of the Declarations of Named Plaintiffs and Designated Class Members is DENIED.13

13

For the record, the Court notes that at a July 25, 2003

status conference, this Court also denied Plaintiffs’

Motion to Strike Declarations of 10 Undisclosed

Witnesses. It also granted Defendants’ motion for leave

to file a surreply in opposition to the Plaintiff’s Motion

for Class Certification given that Defendant had already filed the surreply. The Court noted, however, that the filing of the surreply was not justified and deserved little or no weight.
IT IS SO ORDERED.
Parallel Citations 93 Fair Empl.Prac.Cas. (BNA) 1671, 85 Empl. Prac. Dec. P 41,689
	  

9

 
 Case3:01-cv-02252-CRB Document767 Filed10/27/11 Page1 of 59

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Brad Seligman (SBN 083838) Jocelyn D. Larkin (SBN 110817) THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 Telephone: 510.845.3473 Facsimile: 510.845.3654
Steven Stemerman (SBN 067690) Elizabeth A. Lawrence (SBN 111781) DAVIS, COWELL & BOWE, LLP 595 Market Street, Suite 1400 San Francisco, CA 94105 Telephone: 415.621.0672
Arcelia Hurtado (SBN 191481) Noreen Farrell (SBN 191600) EQUAL RIGHTS ADVOCATES 180 Howard Street, Suite 300 San Francisco, CA 94105 Telephone: 415.621.0672
Sheila Y. Thomas (SBN 161403) LAW OFFICE OF SHEILA THOMAS 5260 Proctor Avenue Oakland, CA 94618 510.339.3739
Attorneys for Plaintiffs

Joseph M. Sellers Christine E. Webber Jenny R. Yang COHEN MILSTEIN SELLERS & TOLL, PLLC West Tower, Suite 500 1100 New York Avenue Washington, DC 20005 Telephone: 202.408.4600 Facsimile: 202.408.4699
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Debra Gardner PUBLIC JUSTICE CENTER 1 N. Charles Street, Suite 200 Baltimore, MD 21201 410.625.9409
Stephen Tinkler THE TINKLER LAW FIRM
309 Johnson Street Santa Fe, NM 87501 Telephone: (505) 982-8533 set@tinklernm.com

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

BETTY DUKES, PATRICIA SURGESON, EDITH ARANA, DEBORAH GUNTER and CHRISTINE KWAPNOSKI, on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
WAL-MART STORES, INC.,

Case No. C-01-2252-CRB
PLAINTIFFS’ FOURTH AMENDED COMPLAINT
[CLASS ACTION]
DEMAND FOR JURY TRIAL

Defendant.

PLAINTIFFS' FOURTH AMENDED COMPLAINT CASE NO. C-01-2252- CRB

Case3:01-cv-02252-CRB Document767 Filed10/27/11 Page2 of 59

Plaintiffs Betty Dukes, Patricia Surgeson, Edith Arana, Deborah Gunter and Christine Kwapnoski (“Plaintiffs”), on behalf of themselves and all others similarly situated, allege, upon personal knowledge as to themselves and upon information and belief as to other matters, as follows:
INTRODUCTION
1. Over ten years ago, this action was commenced as a national class against WalMart Stores, Inc., the largest retailer in the world and the largest private employer in the United States. The action alleged that female employees in Wal-Mart and Sam’s Club retail stores were discriminated against based on their gender, with respect to pay and promotion to management track positions, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
2. In 2004, this Court certified a national class of female employees challenging retail store pay and management promotion policies and practices under Fed. R. Civ. Pro 23(b)(2). The United States Supreme Court reversed that class certification order on June 20, 2011. The high court, issuing new guidelines for class actions and Title VII employment discrimination cases, held that the national class could not be certified, based on the facts it outlined in its opinion. The Supreme Court did not rule on the merits of the action, but only ruled that the class as certified could not proceed. It did not preclude prosecution of a class that was consistent with its newly announced guidelines and standards.
3. Accordingly, this Fourth Amended Complaint alleges claims on behalf of a class of present and former female Wal-Mart retail store employees who have been subjected to gender discrimination as a result of specific policies and practices in Wal-Mart’s regions located in whole or in part in California (“California Regions”). Plaintiffs allege gender discrimination as follows:
a. Denial of equal pay for hourly retail store positions;

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PLAINTIFFS' FOURTH AMENDED COMPLAINT CASE NO. C-01-2252- CRB

Case3:01-cv-02252-CRB Document767 Filed10/27/11 Page3 of 59

1

b. Denial of equal pay for salaried management positions up to and including

2

Co-Manager;

3

c. Denial of equal opportunities for promotion to management track positions

4

up to and including Co-Manager.

5

4. The class membership period commences on December 26, 1998, 300 days prior

6 to the earliest class EEOC charge by a former class member. Based on evidence produced in

7 discovery in this matter, interviews with class members and witnesses, and publicly available

8 information, plaintiffs allege that the challenged practices, and therefore the class period, extends

9 at least until June 2004, and, on information and belief, they allege that members of the class have

10 been denied equal opportunities for promotion and equal pay through the present. With renewed

11 discovery, plaintiffs will plead more specific time periods for each of the claims.

12

5. Plaintiffs allege that defendant maintained a pattern or practice of gender

13 discrimination in compensation and promotion and that its compensation and promotion policies

14 and practices had a disparate impact not justified by business necessity on its female employees

15 whose claims arise in Wal-Mart’s regions that include stores located in California. As used in

16 this Fourth Amended Complaint, Wal-Mart’s California Regions and California Districts refer to

17 those Wal-Mart and Sam’s Club regions and districts that encompass, in whole or in part, Wal-

18 Mart’s California retail stores.

19

6. This action seeks an end to Wal-Mart’s discriminatory policies and practices in the

20 California Regions, make whole relief for the class, and punitive damages.

21

JURISDICTION AND VENUE

22

23

7. Plaintiffs’ claims arise under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

24 §§ 2000e, et seq. This Court has jurisdiction over this matter pursuant to 42 U.S.C. § 2000e-5(f),

25 28 U.S.C. §§ 1331 and 1343(a)(4). The Court has supplemental jurisdiction pursuant to 28

26 U.S.C. 1367 over claims under the California Fair Employment & Housing Act, Government

27 Code § 12920, et. seq.

28
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PLAINTIFFS' FOURTH AMENDED COMPLAINT CASE NO. C-01-2252- CRB

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1

8. Venue is proper in this district pursuant to 42 U.S.C. § 2000e-5(f) and 28 U.S.C. §

2 1391(b) & (c). Named plaintiffs’ claims arose in California. Many of the acts complained of

3 occurred in this judicial district and gave rise to the claims alleged. Wal-Mart currently operates

4 212 Wal-Mart stores and Sam’s Clubs in California where it employs more than 70,000 workers.

5 It operates at least 20 stores in the Northern District of California.

6

PARTIES

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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9. Plaintiff Betty Dukes is an African-American woman and a resident of Contra

Costa County, California. She is currently employed by Wal-Mart Stores, Inc. in Contra Costa

County in Wal-Mart Store 1615, in Wal-Mart District 45, Region 19.

10. Plaintiff Patricia Surgeson is a woman and a resident of Sacramento County,

California. She was employed in Solano County by Wal-Mart Stores, Inc. from August 1997 to

March 2001 in Store 1704, in Wal-Mart District 42, Region 19. Plaintiffs are informed and

believe she is eligible for rehire.

11. Plaintiff Christine Kwapnoski is a woman and a resident of Contra Costa County,

California. She has been employed by Wal-Mart Stores, Inc. since 1986, and has worked for a

Sam’s Club in Concord, California since 1994. She continues to work at that Sam’s Club at Store

6612, in Sam’s Club District 63, Region 5.

12. Plaintiff Deborah Gunter is a woman and a resident of Riverside County,

California. She was employed by Wal-Mart Stores, Inc. in California from April 1996 until

August 1999. She worked in Store 2028 (District 10, Region 16), Store 1747 (District 205,

Region 16) and Store 2077 (District 10, Region 16). Plaintiffs are informed and believe she is

eligible for rehire.

13. Plaintiff Edith Arana is an African-American woman and a resident of Los

Angeles County, California. She was employed by Wal-Mart in California from 1995 until

October 2001. She worked in Store 2401, in Wal-Mart District 333, Region 16.

14. Defendant Wal-Mart Stores, Inc. is a Delaware corporation with stores throughout

California. Its corporate headquarters is located in Bentonville, Arkansas. Wal-Mart Stores, Inc.

PLAINTIFFS' FOURTH AMENDED COMPLAINT CASE NO. C-01-2252- CRB

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1 operates retail stores doing business as Wal-Mart Discount Stores, Wal-Mart Supercenters and

2 Sam’s Clubs Stores (collectively “Wal-Mart”) in California.

3

CLASS ALLEGATIONS

4 15. Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil
5 Procedure on behalf of: a) all women who are currently employed or will be employed at any
6 Wal-Mart retail store in a California Wal-Mart Region (“Injunctive Relief Class) and b) all
7 women employed at any Wal-Mart retail store in a California Region at any time from December
8 26, 1998 (“Monetary Relief Class”), who have been or may be subject to the following policies
9 and practices:
10 i. Denial of equal pay for hourly retail store positions;
11
ii. Denial of equal pay for salaried management positions up to and including 12
Co-Manager; and 13
iii. Denial of promotion to management track positions up to and including Co14
Manager. 15
The proposed classes do not include Store Managers or licensed Pharmacists. 16

16. Plaintiffs are members of the classes they seek to represent. 17

18

17. The members of the classes are sufficiently numerous that joinder of all members

19 is impracticable. Plaintiffs are informed and believe that the Injunctive Relief Class and the

20 Monetary Relief Class each exceed 45,000 women.

21

18. There are questions of law and fact common to the classes and these questions

22 predominate over individual questions. Such questions include, without limitation, whether

23 defendant, through its California Region managers with final authority to make the challenged

24 decisions, has engaged in a pattern or practice of discrimination in pay and management track

25 promotions against its female employees in its California Regions, whether there are statistical

26 patterns adverse to female employees in pay and management track promotions in defendant’s

27 California Regions, whether defendant’s policies in its California Regions have an adverse impact

28
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1 upon the classes and, if so, whether this impact can be justified by business necessity; and

2 whether injunctive relief and punitive damage relief for the classes are warranted.

3

19. The claims alleged by the plaintiffs are typical of the claims of the classes. Each

4 plaintiff has worked in Wal-Mart’s California Regions and has been subjected to the

5 discriminatory policies and practices alleged.

6

20. The named plaintiffs will fairly and adequately represent and protect the interests

7 of the classes.

8

21. The Injunctive Relief Class is properly maintainable under Federal Rule of Civil

9 Procedure Rule 23(b)(2) because defendant has acted or refused to act on grounds generally

10 applicable to this class, thereby making appropriate final injunctive relief or corresponding

11 declarative relief with respect to this class as a whole.

12

22. The Monetary Relief Class is properly certified under Rule 23(b)(3) because

13 questions of law and fact common to the class predominate over any questions affecting only

14 individual members, and a class action is superior to other available methods for the fair and

15 efficient adjudication of this case.

16

23. Alternatively, class-wide liability and punitive damages liability under the theories

17 advanced in this action are properly certified under Rule 23(c)(4) for both classes because such

18 claims present only common issues, the resolution of which would advance the interests of the

19 parties in an efficient manner.

20 ORGANIZATIONAL AND STORE STRUCTURE WITHIN CALIFORNIA REGIONS

21

22

24. Store Formats – Within the California Regions, Wal-Mart has operated in three

23 primary formats: Wal-Mart Discount Stores, Supercenters and Sam’s Clubs. The basic

24 organizational structure for these stores has been the same across the California Regions.

25

25. Common Hourly Jobs Within Stores - All stores within the California Regions

26 have used common job titles and job descriptions, and the same job hierarchies. Although the

27 Wal-Mart Stores and Sam’s Clubs use somewhat different nomenclature, their personnel and

28
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1 human resources policies, job titles and hierarchies, and compensation and promotion policies

2 have been virtually identical.

3

26. Most Common Positions - While there are numerous job titles at Wal-Mart, the

4 majority of hourly employees have worked as sales workers, cashiers, department managers and

5 stockers. The most common management position is assistant manager.

6

27. Common Department Structure - Stores within the California Regions have been

7 divided into numerous departments, which have been staffed by hourly paid employees. Some

8 departments have been designated as specialty departments. The departmental structure is the

9 same throughout the stores in the California Regions.

10

28. Common Management Jobs – With the exception of Support Manager,

11 management positions within the California Regions are salaried. Each store has Assistant

12 Managers. Larger stores have had one or more Co-Managers who supervise Assistant Managers

13 and other staff. All stores have Store Managers who are in charge of the store. Specialty

14 departments managers, who report to Store Managers, also report to District and Regional

15 Specialty Managers above the store level.

16

29. District Organization – Until 2006, stores within the California Regions were

17 grouped into districts which were supervised by District Managers and typically included six to

18 eight stores. Thereafter, districts have been expanded to include more stores.

19

30. District Managers’ Role - District Managers within the California Regions have

20 been responsible for ensuring store compliance with company policies and culture. District

21 Managers have been based in their districts and spend their time visiting and monitoring the

22 stores in their districts and reviewing all facets of the store operations. District Managers also

23 have made or approved compensation and promotion decisions for the stores.

24

31. Regional Organization - Districts are grouped into regions, headed by a Regional

25 Vice President. As of 2003, each region contained approximately 80 - 85 stores. As of 2003,

26 there were two Wal-Mart regions (Regions 16 and 19) and two Sam’s Club regions (Regions 1

27

28
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1 and 5) that encompassed stores within California. These regions together included, as of 2003,

2 over 20 districts. Most of these districts were comprised entirely of California stores.

3

32. Role of Regional Vice President – The Regional Vice Presidents in California

4 Regions monitor and implement corporate and regional policies regarding compensation and

5 promotion. Regional Vice Presidents regularly meet with District Managers and receive weekly

6 reports from District Managers about the activities in the California Region stores they supervise.

7

33. Regional Personnel Managers’ Role – Each California Region has had a Regional

8 Personnel Manager, who assists the California Regional Vice Presidents and District Managers in

9 making pay and promotion decisions for employees working in the California Region stores.

10

34. Changes to California Regions and Districts – Since 2003, Wal-Mart may have

11 adjusted the borders of these regions and districts.

12

35. Divisional Organization – The Regional Vice President reports to a Divisional

13 Senior Vice President.

14

COMPENSATION DISCRIMINATION WITHIN CALIFORNIA REGIONS

15 36. Common Compensation Policies – Compensation of store-based employees has
16

been set based upon a common set of guidelines applied consistently throughout the California 17

18 Regions and which establish basic standards for setting pay rates at hire and subsequent pay

19 adjustments of hourly and salaried employees, hereby referred to as Pay Guidelines.

20

37. Hourly Job Categories - All hourly positions have been grouped into various job

21 categories, which have been uniform across the various stores in the California Regions. All

22 employees with the same job title, such as sales associates, are placed in the same job category

23 regardless of the department they work in.

24

38. Job Category Pay Rates - The minimum pay levels at hire (“start rates”) for each

25 job category have been established for each store in California Regions with the approval of the

26 District Managers and Regional Vice Presidents. Thereafter, an employee’s pay level may be

27 adjusted: 1) after an initial probationary period, 2) if the employee is promoted to a higher job

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1 class or into management, 3) on an annual basis if the employee satisfies minimum performance

2 standards, or 4) if the employee has been awarded a special “merit” raise.

3

39. Process for Setting Hourly Pay - The Store Manager has had the initial

4 responsibility to set pay rates for individual hourly employees within the pay guidelines, subject

5 to a number of constraints set by the California District and Regional Managers. Where a Store

6 Manager has set a pay rate above or below the guidelines, the rate is called an “exception.”

7

40. Hourly Pay Exceptions - The pay rate for a new employee may be set up to a

8 maximum of $2 per hour above the start rate, but if the new employee’s rate is more than 6%

9 above the established start rate for that pay class, a computer program in the payroll system

10 prohibited payment at this rate unless and until the Store Manager manually enters the pay rate

11 for that employee. A significant proportion of employees have been paid 6% or more above the

12 start rate in virtually every Wal-Mart store in the California Regions.

13

41. Approval of Exceptions - All hourly pay exceptions have been automatically

14 reported to the District Manager who may approve or disapprove such exceptions. Regional

15 Personnel Managers have also been informed of all hourly pay exceptions and required to ensure

16 that hourly compensation is consistent among employees in the California Regions.

17

42. Hourly Pay Reports and Audits – California District Managers, Regional

18 Personnel Managers and Regional Vice Presidents regularly receive reports of all employees

19 whose hourly pay in a job category is more than 10% below or 5 % above the average pay in that

20 class. California District Managers perform quarterly audits of each store’s compliance with

21 company policies, including compensation policies, which are reported to Regional Personnel

22 Managers and Regional Vice Presidents.

23

43. California District Managers and Regional Vice Presidents have the ultimate

24 authority whether, and by how much, to adjust the pay of all hourly employees, including those

25 who are listed on exception reports.

26

27

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1

44. Salaried Pay Guidelines - Within California Regions, salaried employee

2 compensation is required to be made in accordance with pay guidelines for each salaried position.

3 These guidelines set broad pay ranges for each position.

4

45. Assistant Manager Salary – California District Managers, with the concurrence of

5 the Regional Vice Presidents and Regional Personnel Managers, set the compensation for

6 Assistant Managers in the California Regions.

7

46. Co-Manager Compensation – Within the California Regions, Co-Manager

8 compensation is comprised of a base salary and profit sharing tied to the profitability of the Co-

9 Manager’s store. Regional Vice Presidents determine base salary and assign the stores at which

10 Co-Managers work, the profitability of which affects the profit-sharing component of the

11 compensation they receive.

12

47. Pay Decisions Not Job Related Or Documented - In each of California’s Regions

13 and Districts, Managers in California Regions are not required to use job related criteria such as

14 job performance or experience in setting, adjusting, or approving compensation for individual

15 employees. California managers do not document the reason for setting, adjusting or approving

16 the compensation of individual employees. The California Regional Vice Presidents and District

17 Managers do not hold the managers in the California Regions accountable for the factors they use

18 in making pay decisions or in ensuring those factors comport with the law, nor do they require

19 any documentation of the reasons for the compensation paid to individual employees. Nor do

20 Wal-Mart Managers specify the weight that should be accorded any requirement for setting or

21 adjusting compensation.

22

48. Patterns in Compensation - Women who hold salaried and hourly positions in the

23 California Regions have been regularly paid less on average than similarly-situated men, although

24 on average the women have more seniority and higher performance ratings than the men. This

25 gender pay difference adverse to women exists in each of the California Regions and Districts and

26 in the vast majority of the stores in the California Regions, even when nondiscriminatory

27

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1 objective factors, such as seniority, performance, store location and other factors are taken into

2 account.

3

49. Management Knowledge of Compensation Discrimination - California Regional

4 Personnel Managers, Regional Vice Presidents and District Managers received regular reports

5 about compensation for hourly and salaried employees within California showing that female

6 employees were paid less than men on average.

7

50. Adverse Impact of Compensation System - Wal-Mart’s compensation policies,

8 including its failure to require managers to base pay decisions for individual employees on job

9 related criteria such as experience or documented performance, have had an adverse impact upon

10 its female employees in the California Regions. Because reasons for compensation decisions are

11 not documented, elements of Wal-Mart’s compensation decision-making are not capable of

12 separation for analysis.

13

PROMOTION DISCRIMINATION WITHIN CALIFORNIA REGIONS

14 51. Management Track Positions Below Assistant Manager Positions - Within
15 California Regions, Support Managers are the highest level hourly supervisory positions and
16

assume the duties of Assistant Managers in their absence. At Sam’s Club, Salaried Area 17

18 Managers serve similar functions. Employees in these positions are often groomed for further

19 advancement. The vast majority of Support Manager and Area Manager vacancies have not been

20 posted. There has been no formal application process for selection for these positions or job

21 related criteria for making selections of those to be promoted.

22

52. Promotion to Management Trainee – Entry into the Management Trainee Program

23 is a requirement for advancement into Assistant Manager and other salaried management

24 positions. Prior to 2003, there was no application process or job posting for Management Trainee

25 positions. Hourly employees in the California Regions were not provided any information

26 regarding how to enter management, or what the requirements or qualifications were for entering

27 management, or how to apply for the Management Trainee Program.

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1

53. Criteria for Promotion to Management Trainee – District Managers, assisted by

2 Regional Personnel Managers, select management trainees. Within California Regions, these

3 managers have been provided uniform guidelines setting minimal eligibility criteria for promotion

4 into the Management Trainee Program, including minimum tenure, age (18 years or older),

5 absence of current “active” discipline, satisfactory recent performance evaluation and willingness

6 to relocate, but no job related criteria have been provided for making selections among those who

7 meet the minimum criteria. Employees selected into the Management Training program are

8 required to transfer from their stores and often their districts as they enter training and Assistant

9 Manager positions, subject to very limited exceptions which must be approved by the Regional

10 Personnel Manager and Regional Vice President.

11

54. Promotion to Co-Manager - Within California Regions, Regional Vice Presidents

12 select Co-Managers subject to approval by the Divisional Senior Vice President. The majority of

13 Co-Manager promotions are transfers across district lines. Co-Manager openings have rarely

14 been posted and there has been no formal application process for such positions. While there

15 have been minimal eligibility requirements for promotion to co-manager such as satisfactory

16 performance and willingness to relocate, there are no job related criteria for making selections

17 among those who meet the minimum criteria or determining which store to assign to a co-

18 manager.

19

55. In each of California’s Regions and Districts management track promotional

20 policies and practices have denied interested and qualified females equal access to promotional

21 opportunities because promotion opportunities are not posted, there is not an open application

22 system, and employees are not informed of the criteria for promotion. Moreover, Managers in

23 California Regions do not require or use valid, job related factors in making the promotion

24 selections within the California Regions. Nor does Wal-Mart specify the weight that should be

25 accorded any requirements for promotion. As a consequence, qualified women were denied equal

26 access to promotions because of their gender.

27

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1

56. Management Trainee Registration of Interest - In January 2003, Wal-Mart

2 instituted within the California Regions an online application process for entry into the

3 Management Training Program. In order to be considered as an applicant, employees were

4 required to agree to a set of conditions, many of which had the purpose and effect of discouraging

5 women from seeking such positions. Potential applicants for entry level store management

6 positions were required to accept the conditions that, as Assistant Managers, they would travel for

7 up to six weeks in duration, be subject to a varied and not regular schedule, including work on

8 scheduled days off, work during days, overnights, weekends and holidays, scheduled days off not

9 consecutive and rotated weekly, and scheduled hours changed or increased without notice. None

10 of these requirements is justified by business necessity, and it is untrue that Assistant Managers

11 must normally travel up to six weeks. Failure to accept all of these conditions precluded

12 consideration as an applicant, which has resulted in the exclusion of interested and qualified

13 women from the management training program.

14

57. No Documentation of Promotion Decisions - Managers have not documented, and

15 Wal-Mart had not tracked, the reason for selecting a particular employee for a management

16 promotion. Managers have not documented, and Wal-Mart has not tracked, which employees

17 have been denied consideration for promotion because of their inability to comply with

18 relocation, travel or scheduling requirements for promotion.

19

58. External Statistics - Wal-Mart has had a significantly lower percentage of female

20 managers in its California Regions compared to its largest competitors.

21

59. Internal Statistics on Promotion Rates - Female employees in California Regions

22 and Districts, including the regions and districts in which each named plaintiff worked, have been

23 much less likely than their male counterparts to receive promotion to management track positions

24 including Support and Area Managers, Management Trainee and Assistant Manager, and Co-

25 Manager positions, despite the fact that they possess equal or better qualifications than their male

26 counterparts.

27

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1

60. Internal Statistics on Time to Promotion - Female employees must wait

2 significantly longer to be promoted into management track positions than men with equal or

3 lesser qualifications. This is true in each of California’s Regions and Districts, including the

4 Regions and Districts in which each named plaintiff worked.

5

61. Management Knowledge of Promotion Discrimination - Wal-Mart management

6 has long known about gender disparities in promotion in the California Regions and have failed to

7 take any remedial action.

8

62. Reporting by Gender - Every store, district, and region in the California Regions

9 regularly compiles and reports to corporate headquarters the gender composition of its hourly and

10 managerial workforce, employee turnover, exceptions to promotion policies, job posting data,

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entry into management training programs and other data. District Managers, Regional Personnel Managers and Regional Vice Presidents for the California Regions receive these reports.
63. People Division Reports - Wal-Mart’s People division regularly prepares reports for senior management summarizing promotion and incumbency rates for store management positions by gender, and reports are regularly made to the Board of Directors.
64. Store Visits – District Managers, Regional Personnel Managers and Regional Vice Presidents in the California Regions regularly visit stores and are aware of the gender composition of the workforce.
65. Warnings About Discrimination - Senior management officials, senior People division officials, and outside consultants have warned Wal-Mart that women are not sufficiently represented in management positions, that women are paid less than male employees in the same jobs, and that Wal-Mart lags behind its competitors in the promotion of women to management positions.
66. Discriminatory Practices Identified - These officials and consultants have also identified policies and practices at Wal-Mart that have an adverse impact on its female employees, including lack of consistent job posting, the requirement of relocation as a condition of entry into and promotion through management, reliance on stereotypes in making pay and

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1 promotion decisions, lack of objective criteria for making promotion decisions, and lack of

2 consistent and reliable scheduling for management level employees.

3

67. Relocation Unnecessary - Wal-Mart’s founder, Sam Walton, conceded in 1992

4 that Wal-Mart’s policies, particularly its relocation requirement, were an unnecessary barrier to

5 female advancement, yet this policy remained in place thereafter.

6

68. Changes Blocked - Senior managers also blocked policy changes that would have

7 reduced the impact of Wal-Mart’s discriminatory policies including posting of managerial

8 vacancies.

9

69. Failure to Analyze - Wal-Mart had never studied nor analyzed whether any of its

10 practices were consistent with business necessity or whether less discriminatory alternatives to

11 these policies and practices could be adopted.

12

70. Adverse Impact of Promotion Policies - Wal-Mart’s promotion policies, including

13 its failure to require managers to base promotion decisions for individual employees on job

14 related criteria, have had a statistically significant adverse impact upon its female employees in

15 the California Regions. Because reasons for promotion decisions are not documented, and Wal-

16 Mart does not create or maintain records which identify the impact of separate components of its

17 promotion policies and practices, its promotion decision-making process is not capable of

18 separation for analysis.

19

WAL-MART MANAGERS RELY ON DISCRIMINATORY STEREOTYPES

20

21

71. In the absence of job-related compensation and promotion criteria, Wal-Mart’s

22 managers rely on discriminatory stereotypes and biased views about women in making pay and

23 promotion decisions in the California Regions and Districts.

24

72. A 1998 survey of Wal-Mart managers revealed that there was a “good ol boy

25 philosophy” at Wal-Mart, that many managers were “close minded” about diversity in the

26 workplace, and that some District Managers “don’t seem personally comfortable with women in

27 leadership roles.”

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1

73. A committee of Wal-Mart’s few female executives, disbanded before this action

2 was filed, noted that, “stereotypes limit the opportunities offered to women.”

3

74. All Wal-Mart Store Managers, including California Store Managers, have been

4 required to attend training programs at the company’s Walton Institute. These managers were

5 advised at the Institute that the reason there are few senior female managers at Wal-Mart is

6 because men were “more aggressive in achieving those levels of responsibility” than women.

7 Managers were cautioned that efforts to promote women could lead to the selection of less

8 qualified women over more qualified men.

9

75. On January 24, 2004, at a meeting of all Wal-Mart’s District Managers presided

10 over by Wal-Mart Stores’ CEO Thomas Coughlin, the District Managers were told that they

11 were the key to running the stores: “[y]ou are the culture.” The key to success was described as

12 “single focus to get the job done. . . .women tend to be better at information processing. Men are

13 better at focus single objective.” The District Managers were instructed to create a “culture of

14 execution” and a “culture of results” as they picked “[f]uture leaders.”

15

76. California Regional Vice President John Butler presumed that women did not seek

16 management positions because of their “family commitments.”

17

77. John Scantlin, plaintiff Dukes’ District Manager, concluded that women were

18 uninterested in management, basing his conclusion on his mother, a woman who had never

19 worked at Wal-Mart and, decades earlier, had not been interested in advancement.

20

78. California Sam’s Club District Manager Terry Moran justified denying a woman a

21 promotion to an Assistant Manager position because of his concern that she had a small child. He

22 did not raise this concern with male candidates for Assistant Manager. He also explained higher

23 male pay rates as justified because they were the head of their households.

24

79. California Sam’s Club District Manager Phil Goodwin justified paying less to a

25 female manager than a male employee on the ground that the male manager “supports his wife

26 and two kids.”

27

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1

80. Plaintiff Kwapnoski’s Store Manager Alan Oshier justified giving a large raise to a

2 male employee because he had a family to support. He later suggested to plaintiff Kwapnoski

3 that she “doll up” and “blow the cobwebs off” her make-up to make herself more promotable.

4

81. Sam’s Club El Monte Store Manager Jim Black told a female assistant manager

5 who had missed work due to a sick child, that the District Manager had said “this is why we are

6 concerned about promoting women with children.”

7

82. Other California managers justified denying promotions to women or paying them

8 less than their male employees because of perceived family obligations of the women and male

9 responsibility to support their families or because of their presumed inability to relocate.

10

WAL-MART’S INEFFECTIVE ANTI-DISCRIMINATION EFFORTS

11 83. Prior to the filing of this action, Wal-Mart had no meaningful policies or practices
12 to hold managers accountable, financially or otherwise, to equal employment and diversity
13 policies and goals.
14

84. Starting in 2000, Wal-Mart asked District Managers to set diversity “goals” for 15

advancement of women in management. The goals were based on each manager’s individual 16

views on what was attainable and were not tied to any objective measures of availability or 17

18 qualifications. Prior to 2004, failure to meet diversity goals had no financial or other

19 consequence for managers.

20

85. As late as 2003, Wal-Mart Stores’ CEO Coughlin was not aware of any diversity

21 goals or whether managers had met such goals. Many Store Managers were also unaware of the

22 existence of any diversity goals.

23

86. Until at least 2003, there had never been any diversity goals set for individual

24 stores, or for any compensation practices.

25

26

27

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1

ALLEGATIONS OF NAMED PLAINTIFFS

2 BETTY DUKES

3 87. Betty Dukes is an African American woman currently employed in Wal-Mart store
4 1615, located in Pittsburg, California. She was hired as a part-time front-end cashier at the
5 Pittsburg store in May 1994. Within one year after her hire date, Ms. Dukes received an excellent
6 90-day review, a promotion to full-time status and a merit pay raise. She was promoted to
7 Customer Service Manager in June 1997, which also included an increase in salary.
8 88. In September 1997, Ms. Dukes began to experience harsh and discriminatory
9 treatment from head Customer Service Manager Leilani (Lonnie) Barrett and male Store Manager
10
Ken Cagle. In November 1997, she complained to male District Manager Chuck Salby about the 11
discriminatory treatment. 12
89. After she complained, Ms. Dukes experienced retaliation from Wal-Mart store 13
management, beginning with a disciplinary write-up on February 13, 1998, for returning late from 14
her breaks, even though male and/or Caucasian employees returned late from their breaks or 15
failed to clock out for breaks and were not disciplined. Ms. Dukes was also written up on 16
March 31, 1998, for having a front-end cashier cover her lunch break, even though she had used 17

this procedure many times before without incident and Caucasian employees used this procedure 18

19 without being reprimanded. Ms. Dukes complained to male District Manager Jay King but he

20 simply referred her back to the Store Manager.

21

90. On June 29, 1999, Ms. Dukes called in sick. Store Manager Cagle reacted in a

22 highly negative and unprofessional way towards her request, even though she was entitled to use

23 sick leave. Ms. Dukes called the district management office about Cagle and, ultimately, she

24 spoke with the male Loss Prevention District Manager Charles Chibante. Only after she

25 threatened to make a complaint to the Wal-Mart home office in Arkansas did she receive a

26 reluctant apology from Store Manager Cagle. However, Cagle’s apology only served to escalate

27 the retaliation.

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91. In July 1999, Ms. Dukes expressed interest in becoming a department manager by

2 requesting of Ken Cagle that she receive training for that position, but she was never given the

3 opportunity to be trained. Rather, shortly thereafter on August 14, 1999, Plaintiff was demoted

4 from Customer Service Manager to cashier and falsely accused of violating company policy while

5 performing a transaction that had been performed many times by Plaintiff and other employees

6 without incident. The demotion was Wal-Mart’s retaliation for Plaintiff’s numerous complaints

7 of discrimination.

8

92. On August 18, 1999, Ms. Dukes traveled to the Wal-Mart District Office in

9 Livermore, California and made a complaint to male Wal-Mart District Manager John Scantlin

10 about her demotion and her concerns about employment discrimination at the Pittsburg Wal-Mart

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store. Wal-Mart took no steps to address Dukes’ concerns. 93. As a result of the demotion, Plaintiff became ineligible for several promotions to
positions that she was qualified to perform from August 1999 to August 2000, the year following the demotion. For example, a Support Manager position was filled in July or August 2000 by Rosa Trevino (Hispanic female). Between July and September 2000, the position of Domestics Department Manager was open and filled by Joseph Topasna (Filipino male). As a result of the demotion, Ms. Dukes’ hours and hourly wage were reduced.
94. After August 14, 2000, when Ms. Dukes once again became eligible for promotion, at least four department manager and/or Support Manager positions at the Pittsburg store were filled by men. None of these positions was posted. Between October and December 2000, Richard Morales (Hispanic male) was promoted from night receiving stocker to night Support Manager. In November 2000, Joseph Topasna (Filipino male) was promoted to Support Manager. Between October and December 2000 Robert (Aaron) Mendez (Hispanic male) was promoted to Support Manager. In December 2000 or January 2001, Will Martines (Caucasian male) filled the position of Department Manager for Tire Lube Express (TLE).
95. After the demotion, Ms. Dukes was discouraged from seeking other positions because of the way she and other women had been treated by Wal-Mart. Dukes did not apply for

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1 three department manager positions open after August 14, 2000 (Hardware, Over-The-Counter

2 Pharmacy and Stationery) because she was discouraged after the discriminatory treatment she and

3 other women received from Wal-Mart managers.

4

96. Furthermore, Ms. Dukes’ knowledge of Wal-Mart’s discriminatory practices

5 against other women at the Pittsburg store also discouraged her from seeking a promotion. In

6 June 2000, Brooke Terrell (African American female) was demoted from department manager to

7 a sales floor position, although she continued to fulfill the responsibilities of a department

8 manager until a replacement was found. The department manager position vacated by Terrell was

9 filled by Kevin Sims (African American male). In 2000, Trina Wallace (African American

10 female) was demoted from a department manager position to a sales floor position and later

11 terminated. The department manager position vacated by Wallace was ultimately filled by

12 Kendall Dimery (African American male). In 1999, Darla Harper (Caucasian woman) was

13 denied a department manager job in which she had expressed an interest. Without posting this

14 position, Wal-Mart selected Spencer Ostrom (Caucasian male) to fill this position.

15

97. On or about June 1, 2000, Dukes filed a charge of discrimination with the

16 California Department of Fair Employment & Housing (DFEH), a copy of which is attached

17 hereto as Exhibit 1 and incorporated by reference. On June 15, 2000, she received a right to sue

18 letter, and commenced this action in a timely manner.

19

98. On or about May 2, 2001, Dukes submitted a charge of discrimination to the

20 United States Equal Opportunity Commission (EEOC), a copy of which is attached as Exhibit 2

21 and incorporated by reference. She received a right to sue letter on or about May 22, 2001 and

22 commenced this action in a timely manner.

23

99. Plaintiff Dukes was at all times interested in advancing to a management position.

24 In January 2003, Wal-Mart began an online application process for Management Trainee

25 positions. She attempted to apply through this process but her attempted application was rejected

26 because she could not unconditionally agree to scheduling prerequisites.

27

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100. Since July 2001, Plaintiff Dukes has worked as a Cashier/Greeter. In 2002, Wal-

2 Mart hired a male to be a greeter at her store at a higher pay rate than Ms. Dukes received after

3 nine years of employment. Another male employee who had been hired by Wal-Mart several

4 years after plaintiff Dukes, became a greeter in 1999 and was paid more than plaintiff Dukes.

5

101. On or about April 4, 2003, Dukes submitted a charge of discrimination to the

6 United States Equal Opportunity Commission (EEOC), a copy of which is attached as Exhibit 3

7 and incorporated by reference. She received a right to sue notice on or about July 31, 2003 and

8 commenced this action in a timely manner.

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PATRICIA SURGESON

102. Patricia Surgeson was hired by Wal-Mart in Vacaville, California in August 1997

as a sales associate. She was assigned to the Tire and Lube Express department and, within two

weeks of her hire, was subjected to sexually harassing remarks and touching by a co-worker.

After reporting the harassment, she was transferred to the Health and Beauty Aids department.

She repeatedly applied to transfer to other positions but was denied.

103. In November 1998, Surgeson was assigned to the Lay-Away Department. In

approximately May 1999, she was made the Lay-Away Department manager. Because she was

assuming additional responsibilities, her Store Manager promised her a raise. Despite repeated

requests, Surgeson was never given the promised raise.

104. In late 1999, the Store Manager decided that the Lay-Away Department no longer

needed a manager. Ms. Surgeson’s department manager title was taken away but she was

expected to continue performing manager responsibilities. When she left the department, a male

employee who was given the position and title of Lay-Away Department Manager replaced her.

He was paid more than Ms. Surgeson had been paid for working in the same position with the

same responsibilities.

105. In June or July 2000, Ms. Surgeson was moved to a position in the Cash Office.

Although she assumed greater responsibilities, she again did not receive a raise. She was

expected to work overtime without lunches or breaks, locked in the cash office. In her position,

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1 she became aware that many male employees were being paid more than she was, although they

2 had worked at Wal-Mart for less time and had less responsibility.

3

106. In January 2001, she requested a merit increase. Her request was ignored for two

4 months.

5

107. Ms. Surgeson was interested in attending the Assistant Manager Training program

6 and in being promoted to Assistant Manager. She asked one of her managers for information

7 about how to qualify for the program, as she had not seen any information posted about such

8 opportunities. The manager refused to supply information, and provided only a vague response.

9

108. As a result of the discriminatory pay and working conditions, Ms. Surgeson

10 resigned in March 2001.

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109. On or about May 14, 2001, Surgeson filed a charge of discrimination with the EEOC, a copy of which is attached hereto as Exhibit 4 and incorporated by reference. The EEOC issued a notice of right to sue on May 31, 2001, and this action was timely commenced thereafter. CHRISTINE KWAPNOSKI

110. Christine Kwapnoski was hired by Wal-Mart in 1986, and was originally assigned

to a Sam’s Club in Missouri. Ms. Kwapnoski worked as a cashier in the cash office and in

claims.

111. While at the Sam’s Club in Missouri, Ms. Kwapnoski was sent to help open a new

Sam’s Club in Concord, California. Ms. Kwapnoski was encouraged to transfer permanently to

the Concord store. Both her abilities and her work ethic were praised.

112. In 1994, Ms. Kwapnoski transferred to the Sam’s Club in Concord, California.

She worked in auditing, freezer departments, claims, and in receiving. She repeatedly made it

known to the general managers at the Sam’s Club and to the District Operations Manager that she

sought promotion to a team leader position and an area manager position. These jobs were not

posted to permit formal applications. Instead, these positions, as they became open, were

repeatedly given to men who were less qualified than Ms. Kwapnoski. Ms. Kwapnoski was

required to train several of these men in order for them to assume the responsibilities of the

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1 position. Ms. Kwapnoski also observed men receiving higher rates of pay and more frequent

2 increases in their pay rates.

3

113. Ms. Kwapnoski requested upon more than one occasion the opportunity to join the

4 “Management-in-Training” program, but was denied this opportunity. In 1999, she was finally

5 made a team leader, an hourly position. In June 2001, shortly after this action was filed, Ms.

6 Kwapnoski was promoted to a receiving area coach/manager position. After that promotion, Ms.

7 Kwapnoski was told that she had to be a receiving area manager for at least one year before she

8 could be considered for the “Management-in-Training” program. Men were not required to meet

9 this same requirement.

10

114. After a year as receiving area manager, Ms. Kwapnoski asked her store manager

11 when she could enter the “Management-in-Training” program. She was told that she should

12 continue what she was doing and that she should move to the Front End to get experience in that

13 area of the store. Men were not required to have this breadth of experience before entering the

14 “Management-in-Training” program.

15

115. Ms. Kwapnoski filed a Charge of Discrimination with the EEOC on or about

16 February 15, 2002, a copy of which is attached hereto as exhibit 5 and incorporated by reference.

17 She received a right to sue notice in March 2002.

18

116. Ms. Kwapnoski continued to request entry into the “Management-in-Training”

19 program but was repeatedly denied. In 2002, she was told that she had to relocate in order to join

20 the program, a requirement she had never been told about before. Although Ms. Kwapnoski

21 could have relocated in prior years, she was unable to relocate at that time. She was told by her

22 store manager that because she could not relocate she could not join the program. Finally, in

23 January 2003, Ms. Kwapnoski entered the program, one year after filing the charge against Sam’s

24 Club and after becoming a Plaintiff in this lawsuit.

25

117. Starting with her annual review for 2002, Ms. Kwapnoski began receiving annual

26 reviews which stated that her performance was “below expectations.” She had never received

27

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1 such low scores before she joined the lawsuit as a named plaintiff. As a result of these low

2 scores, she did not receive an annual raise until 2010.

3

118. Upon completion of the “Management-in-Training” program in mid-2003, Ms.

4 Kwapnoski was promoted to Bakery Manager, which is an Assistant Manager position. Ms.

5 Kwapnoski remains as an Assistant Manager.

6

119. In late March/April 2004, Wal-Mart began an investigation against Ms.

7 Kwapnoski for alleged sexual harassment of a co-worker. After an investigation, the charges

8 were dropped for having no merit.

9

120. Ms. Kwapnoski filed a filed a Charge of Retaliation with the EEOC on or about

10 April 23, 2005, a copy of which is attached hereto as exhibit 6 and incorporated by reference.

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She received a right to sue notice in May 2005 which was tolled by mutual agreement of the parties to this litigation. This action was instituted timely thereafter.
121. In 2008, Ms. Kwapnoski was disciplined for allegedly violating code-date policies. Upon receiving the discipline, Ms. Kwapnoski took photographs of the items that were supposedly out-of-date, proving that these items were, in fact, current and that the discipline was unwarranted.
122. Twice in 2009, Sam’s Club management opened a “Red Book” on Ms. Kwapnoski alleging serious charges against her that, if proven, would lead to her termination. Both “Red Books” eventually were closed as no evidence was found to support either.
123. In July 2011, Ms. Kwapnoski was scheduled to work eight straight days even though managers are normally scheduled for no more than six days in a row. Ms. Kwapnoski complained to her store manager about the scheduling but he refused to change it. The following month, August 2011, the store manager scheduled her for 11 straight days of work. Upon complaining again to her manager and then the regional manager of human resources, Ms. Kwapnoski was given one day off in that 11-day span. In October 2011, Ms. Kwapnoski was again scheduled to work 10 days in a row. She again complained to her manager. Other managers are routinely not scheduled to work more than six days in a row. In addition, Ms.

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1 Kwapnoski has been scheduled to work every weekend for three months. Other managers are

2 routinely given weekends, or partial weekends, off.

3

124. Ms. Kwapnoski filed a second Charge of Retaliation with the EEOC on or about

4 October 19, 2011, a copy of which is attached hereto as exhibit 7 and incorporated by reference.

5 She has requested a right to sue notice.

6

125. Despite being an Assistant Manager for eight years, Ms. Kwapnoski is at the

7 bottom range in salary for Assistant Managers in her region.

8 9 DEBORAH GUNTER

10

126. Deborah Gunter was hired in April 1996 as a Photo Lab Clerk in Wal-Mart Store

11 2028 in Riverside, California. She had 30 years of prior retail experience.

12

127. While employed at Store 2028, Ms. Gunter sought promotion several times to the

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position of Pets Department Manager between the time she began her employment in 1996 and approximately March 1998. Though none of the positions were posted, Ms. Gunter advised her supervisor that she was interested in them once she became aware that they were available. Ms. Gunter was particularly interested in this position because of her extensive experience breeding and raising show dogs. She never received the promotion, although the store Night Manager recommended her for the position. The first time Ms. Gunter sought advancement into this position, a male employee with less experience was given the position. The second time she sought advancement into this position, a male employee with less experience was given the position.
128. In the fall of 1996, Ms. Gunter was transferred to the position of Night Stocker. While employed as a Night Stocker, Ms. Gunter learned that the male employees in the Receiving Department earned a higher wage than the female employees in the department.
129. In March 1998, Ms. Gunter transferred to a position as Service Clerk in the Tire Lube Express Department of Store #1747 in Perris, California after the Perris Store Manager requested that she transfer there. While employed at the Perris store from March 1998 until

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1 March 1999, Ms. Gunter performed the duties of Support Manager to the Tire Lube Express

2 Department without the title or salary for that position. Ms. Gunter requested training from the

3 Tire Lube Express Manager and from the District Manager on numerous occasions. She never

4 received the training. Ms. Gunter requested a promotion and pay increase from the Tire Lube

5 Express Manager, but did not receive the promotion. Instead the Tire Lube Express Manager

6 directed her to train two male employees in the job responsibilities of the Support Manager. After

7 receiving training from Ms. Gunter, each male employee was promoted instead of her to the

8 Support Manager position. After the Tire Lube Express Manager told her she did not have

9 sufficient training to fill the position of Support Manager (despite having trained two males

10 eventually promoted), Ms. Gunter again requested additional training and was denied it.

11

130. Beginning in the summer of 1998, Ms. Gunter was subjected to sexually harassing

12 remarks by the Tire Lube Express Manager. She complained to the Store Manager in December

13 1998 and January 1999. However, corrective action was not taken and Ms. Gunter’s complaints

14 were ignored. Subsequently, her hours were reduced.

15

131. Ms. Gunter transferred to Store 2077 in Lake Elsinore, California in March 1999

16 with the belief that she would get more hours. At the Lake Elsinore store, Ms. Gunter was

17 employed as a Cashier/Clerk in the Tire Lube Express Department. As she had done in the Perris

18 store, she trained a male employee in the job responsibilities of Support Manager for the Tire

19 Lube Express Department. After she trained him, the male employee was promoted to Support

20 Manager, whereas Ms. Gunter’s hours were reduced yet again.

21

132. Ms. Gunter complained to the Lake Elsinore Tire Lube Express Manager after her

22 hours were reduced. She also requested a meeting with the District Manager to complain about

23 the discriminatory treatment. In August 1999, on the day that the meeting was scheduled, the

24 Store Manager informed her that she had been terminated and handed Gunter her remaining

25 wages and vacation pay.

26

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1

133. Ms. Gunter filed a Charge of Discrimination with the EEOC on or about

2 October 20, 2011, a copy of which is attached hereto as exhibit 8 and incorporated by reference.

3 She has requested a right to sue notice.

4 EDITH ARANA

5 134. Edith Arana is an African-American woman who was hired by Wal-Mart Store
6 2401 in Duarte, California, on September 5, 1995. During her employment, she held the
7 positions of Personnel Manager, Support Manager, Sales Associate, UPC clerk, Test Scanner and
8 Inventory Clerk. Prior to working at Wal-Mart, Ms. Arana had nine years of retail experience. In
9 December 1997, Ms. Arana told the Store Manager that she wanted to apply for the assistant
10 manager-training program. He informed Ms. Arana that he would recommend her to the District
11 Manager for the training program. However, he did not give Ms. Arana’s name to the District
12
Manager. The Store Manager then said he would recommend Ms. Arana the next time the 13
District Manager asked for names for the training program. However, to her knowledge, he never 14
submitted her name. 15
135. In October 1999, Ms. Arana applied for the position of Paper Goods and 16
Chemicals Department Manager. Although Ms. Arana understood that Wal-Mart’s policy is to 17

interview every applicant, she was not interviewed. A male employee was selected to fill the 18

19 position. During this same 1999-2000 period, Ms. Arana was denied promotion to several other

20 positions, including to department manager positions in Ladies Sportswear and Stationary

21 Departments. Ms. Arana applied a second time for the position of Paper Goods and Chemicals

22 Department Manager between January and August 2000. She was not interviewed, and a male

23 employee was selected to fill the position.

24

136. In approximately June 2000, Ms. Arana told the new Store Manager that she

25 wanted to be promoted and that she was interested in the assistant manager-training program.

26 The Store Manager gave only a vague response. On another occasion, the Store Manager told her

27 that there was no place for people like her in the program and confirmed that he was referencing

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1 her gender and race. Ms. Arana is not aware of any woman recommended by that Store Manager

2 for the assistant manager-training program.

3

137. During the months after Ms. Arana told the Store Manager that she wanted to

4 apply for the assistant manager-training program, she also informed various Assistant Store

5 Managers of her desire for a promotion. Ms. Arana also complained to several Assistant

6 Managers about the Store Manager’s discriminatory treatment of her. Ms. Arana also wrote a

7 letter to an Assistant Manager expressing her desire to join the assistant manager-training

8 program. That Assistant Manager suggested to Ms. Arana that she write a letter directly to the

9 District Manager.

10

138. In December 2000, Ms. Arana wrote a letter to the District Manager expressing her

11 interest in the assistant manager-training program. The District Manager replied via letter that

12 Ms. Arana’s letter would be forwarded to the new District Manager. Despite her repeated

13 expressions of interest in the assistant manager-training program, Ms. Arana was never

14 considered for that program.

15

139. In January 2001, Ms. Arana called Wal-Mart’s toll free number to complain about

16 the Store Manager’s discriminatory refusal to interview women who applied for department

17 manager positions in certain departments. Ms. Arana was informed that her complaint would be

18 forwarded to the Regional Manager. However, to Ms. Arana’s knowledge, no steps were taken in

19 response to her complaint.

20

140. After Ms. Arana complained about the Store Manager’s discriminatory treatment,

21 she was transferred in February 2001 to the less desirable position of inventory traveler. Ms.

22 Arana repeatedly told the Store Manager and two Assistant Managers that she did not want to be

23 an inventory traveler because it was not a desirable position.

24

141. On October 19, 2001, Ms. Arana was falsely accused of “stealing time” and

25 terminated in retaliation for her complaints regarding Wal-Mart’s discriminatory failure to

26 promote women.

27

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1

142. On or about December 11, 2001, Ms. Arana filed a charge of discrimination with

2 the Equal Employment Opportunity Commission and the DFEH, a copy of which is attached

3 hereto as Exhibit 9 and incorporated by reference. The DFEH issued a right to sue notice on

4 these charges on or about December 28, 2001. On or about April 22, 2002, Ms. Arana received a

5 right to sue notice from the EEOC on this charge.

6

FIRST CLAIM FOR RELIEF

7 (Violation of Title VII)

8 143. Plaintiffs incorporate Paragraphs 1 through 142.
9 144. This claim is brought on behalf of all Named Plaintiffs and the classes they seek to
10 represent.
11 145. On or about October 22, 1999, January 4, 2000 and April 3, 2000, class member
12 and former plaintiff Stephanie Odle filed charges of sex discrimination against Wal-Mart with the
13 United States Equal Employment Opportunity Commission. Ms. Odle thereafter received a right
14 to sue notice and commenced this action as a named plaintiff in a timely fashion. From the filing
15 of her EEOC complaints through the initiation of this action, the class-wide nature of Ms. Odle’s
16

charges has been communicated to defendant. 17

18

146. In June 2004, this Court certified this case as a national class action, a decision that

19 was largely upheld by the Ninth Circuit Court of Appeals en banc. On June 20, 2011, the

20 Supreme Court reversed the Ninth Circuit decision. During the pendency of the former certified

21 class, time periods for filing EEOC charges and subsequent litigation for all former class

22 members were tolled. This Court subsequently held that claims of class members would be tolled

23 during the pendency of the national class action until the following dates: for former class

24 members who had received an EEOC right to sue based on a claim encompassed by the former

25 class: October 28, 2011; all other former class members in deferral states would have until

26 May 25, 2012 to file EEOC charges based on conduct encompassed by the former class

27 definition.

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1

147. The foregoing conduct violates Title VII of the Civil Rights Act of 1964. Wal-

2 Mart has engaged in a pattern or practice of discriminating against its female employees in

3 making compensation and management track promotion decisions in its California Regions.

4

148. Wal-Mart has maintained a system for making decisions about compensation and

5 promotions that has had an adverse impact on its female employees in its California Regions. Its

6 compensation policies for setting and adjusting pay collectively and individually, including its

7 failure to require or use job related criteria for making compensation decisions, has had an

8 adverse impact on women. Its management track promotion policies: the absence of an open

9 application process and job posting its relocation and travel requirements for management

10 positions, its scheduling requirements which deny managers a consistent schedule, and its failure

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to apply job-related objective criteria for making management selections have all individually and collectively caused this adverse impact on female employees in promotions.
149. Wal-Mart has failed in California to create or maintain the data that would allow analysis of the impact of each of these policies and practices individually. Nor does Wal-Mart specify the weight that should be according to each of the requirements for pay and promotion. Wal-Mart’s pay and promotion policies and procedures are thus not capable of separation for analysis, and accordingly the entire decision-making process for compensation and promotions decisions may each be analyzed as one employment practice. 42 U.S.C. 2000e-2(k)(1)(B)(i).
150. Wal-Mart’s compensation and promotion policies are not job related or consistent with business necessity. Wal-Mart’s own consultants and human resources staff have proposed job posting, elimination of relocation requirements, adoption of more consistent and reliable scheduling, and the use of more objective criteria for management promotions. Adopting these policies would have resulted in less discriminatory impact upon female employees while serving Wal-Mart’s business needs more effectively than its current practices.
151. Wal-Mart’s discriminatory practices described above have denied female employees promotional opportunities and compensation to which they are entitled, which has resulted in the loss of past and future wages and other job benefits.

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1

152. Plaintiffs request relief as provided in the Prayer for Relief below.

2

SECOND CLAIM FOR RELIEF

3
(Violation of Title VII) 4

5

153. Paragraphs 88-102, 111-126 and 135-142 are incorporated by reference. This

6 claim is brought on behalf of the Named Plaintiffs individually for their non-class claims.

7

154. Defendant discriminated against the Named Plaintiffs on the basis of their gender

8 and in retaliation by demoting them, reducing hours, failing to increase pay, and otherwise

9 adversely affecting the conditions of their employment and terminating them and by subjecting

10 them to a hostile work environment.

11

155. Defendant’s discriminatory and retaliatory practices have resulted in the loss of

12 past and future wages and other job benefits, and have caused plaintiffs to suffer humiliation,

13 embarrassment and emotional distress.

14

156. Plaintiffs request relief as provided in the Prayer for Relief below.

15

THIRD CLAIM FOR RELIEF

16 (Violation of California Fair Employment and Housing Act -Race Discrimination)
17

18

157. Plaintiffs incorporate by reference Paragraphs 88-102.

19

158. This claim for relief is brought on behalf of Plaintiff Dukes only.

20

159. Defendant discriminated against plaintiff Dukes on the basis of her race African

21 American. The foregoing conduct violates the California Fair Employment and Housing Act,

22 Government Code §§ 12940, et. seq.

23

160. Defendant’s discriminatory and retaliatory practices have resulted in the loss of

24 past and future wages and other job benefits, and have caused plaintiff Dukes to suffer

25 humiliation, embarrassment and emotional distress.

26

161. Plaintiff Dukes requests relief as provided in the Prayer for Relief below.

27

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1

RELIEF ALLEGATIONS

2 162. Plaintiffs and the Injunctive Relief Class they represent have no plain, adequate or
3 complete remedy at law to redress the wrongs alleged herein, and the injunctive relief sought in
4 this action is the only means of securing complete and adequate relief. Plaintiffs and the
5 Injunctive Relief Class they represent are now suffering and will continue to suffer irreparable
6 injury from Defendant’s discriminatory acts and omissions.
7 163. The actions on the part of Defendant have caused and continue to cause Plaintiffs
8 and all Monetary Relief class members substantial losses in earnings, promotional opportunities
9
and other employment benefits, in an amount to be determined according to proof. 10
164. Defendant acted or failed to act as herein alleged with malice or reckless 11
indifference to the protected rights of Plaintiffs’ and Monetary Relief class members. Plaintiffs 12
and class members are thus entitled to recover punitive damages in an amount to be determined 13
according to proof. 14
PRAYER FOR RELIEF 15

16

WHEREFORE, Plaintiffs and the proposed classes pray for relief as follows:

17

1) Certification of the Injunctive Relief and Monetary Relief Classes as class actions

18 under Rule 23 (b)(2) and (3),and designation of the Named Plaintiffs Dukes and Kwapnoski as

19 representatives of the Injunctive Relief class and all Named Plaintiffs as representatives of the

20 Monetary Relief class and their counsel of record as Class Counsel for both classes;

21

2) All damages which the Named Plaintiffs and the Monetary Relief Class have

22 sustained as a result of Defendant’s conduct, including back pay, front pay, general and special

23 damages for lost compensation and job benefits that they would have received but for the

24 discriminatory practices of Defendant;

25

3) For Plaintiffs’ individual, non-class claims, all damages they have sustained as a

26 result of defendant’s conduct, including back pay, front pay, general and specific damages for lost

27

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1 compensation and job benefits they would have received but for the discriminatory practices of

2 defendant, damages for emotional distress, and punitive damages, according to proof;

3

4) For plaintiffs and the Monetary Relief Class exemplary and punitive damages in

4 an amount commensurate with Defendant’s ability to pay and to deter future conduct;

5

5) A preliminary and permanent injunction against Defendant and its directors,

6 officers, owners, agents, successors, employees and representatives, and any and all persons

7 acting in concert with them, from engaging in each of the unlawful practices, policies, customs

8 and usages set forth herein. Such relief at minimum should include professional designed job

9 analyses of all job positions and identification of objective, nondiscriminatory criteria for

10 compensation and promotion decisions, record keeping that requires documentation of

11 compensation and promotion decisions, open application and job posting procedures for

12 promotion, training and accountability measures to ensure consistent, nondiscriminatory

13 decision-making, adjustment of the wage rates and benefits for Plaintiffs and the Injunctive Relief

14 Class to that level which Plaintiffs and the Injunctive Relief Class would be enjoying but for

15 Defendant’s discriminatory practices, and affirmative action to provide lost promotion

16 opportunities to Plaintiffs and Injunctive Relief class members.

17

6) A declaratory judgment that the practices complained of in this Fourth Amended

18 Complaint are unlawful and violate 42 U.S.C. § 2000(e), et. seq., Title VII of the Civil Rights Act

19 of 1964;

20

7)

21 law;

22

8)

23

Costs incurred, including reasonable attorneys’ fees, to the extent allowable by Pre-Judgment and Post-Judgment interest, as provided by law; and

24

25

26

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1

9) Such other and further legal and equitable relief as this Court deems necessary,

2 just and proper.

3

4 Dated: October 27, 2011 5 6

Respectfully submitted, THE IMPACT FUND

7

By: /s/ Brad Seligman

8

BRAD SELIGMAN

9

10

11

Attorneys for Plaintiffs

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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EXHIBIT 1

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EXHIBIT 2

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EXHIBIT 3

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EXHIBIT 4

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EXHIBIT 5

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EXHIBIT 6

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EXHIBIT 7

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EXHIBIT 8

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EXHIBIT 9

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 Case3:01-cv-02252-CRB Document991 Filed08/02/13 Page1 of 17

United States District Court For the Northern District of California

1

2

3

4

5

6

7

8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE NORTHERN DISTRICT OF CALIFORNIA

10

11 DUKES, ET AL.,

12

Plaintiffs,

13 v.

14 WAL-MART STORES, INC.,

15

Defendant.

16

No. CV 01-02252 CRB ORDER DENYING CLASS CERTIFICATION
/

17

This case has traveled a long road. Plaintiffs have spent over twelve years pursuing

18 their claims that Wal-Mart discriminated against them and other women in making pay and

19 promotion decisions. For a while, they succeeded in prosecuting the suit as a class action

20 encompassing the claims of some 1.5 million women around the country. But the Supreme

21 Court was not impressed, and in a landmark ruling addressing Federal Rule of Civil

22 Procedure 23(a)(2)’s requirement that a common question tie together the claims of every

23 class member, the Court concluded that Plaintiffs had not established that “all their claims

24 can be productively litigated at once.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

25 2551 (2011).

26

In response, Plaintiffs returned to the district court and sought to redefine a smaller

27 class that would conform to the Supreme Court’s holding. The newly proposed class would

28 include about one hundred and fifty thousand women who worked in what the Plaintiffs call

Wal-Mart’s “California Regions.” This motion is about whether Plaintiffs’ retooled class

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1 definition, allegations, argument, and evidence supply the common question that the

2 Supreme Court concluded was missing from the nationwide class. Two themes emerge in

3 the analysis that follows. First, though they have cut down the raw number of proposed class

4 members significantly, Plaintiffs continue to challenge four different kinds of decisions

5 across hundreds of decision makers, inviting failures of proof at multiple points in each

6 region. Second, though Plaintiffs insist that they have presented an entirely different case

7 from the one the Supreme Court rejected, in fact it is essentially a scaled-down version of the

8 same case with new labels on old arguments.

9

Plaintiffs have amassed substantial evidence of discrimination against women that

10 occurred at Wal-Mart stores during the period at issue in this suit. The Supreme Court,

11 however, required Plaintiffs to make a certain showing in order to litigate all of the class

12 members’ claims at once in a single lawsuit, and this Court concludes that Plaintiffs’ newly

13 proposed class continues to suffer from the problems that foreclosed certification of the

14 nationwide class. Accordingly, the Court DENIES Plaintiffs’ Motion for Class Certification,

15 leaving each member of the class to pursue her claims against Wal-Mart individually.

16 I. BACKGROUND

17

Plaintiffs sued Wal-Mart in 2001, alleging that the company discriminated against

18 them and other women in making certain pay and promotion decisions. In the district court,

19 Plaintiffs succeeded in certifying a nationwide class of Wal-Mart’s current and former

20 female employees. See Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004).

21 Wal-Mart appealed to the Ninth Circuit, which largely affirmed, Dukes v. Wal-Mart Stores,

22 Inc., 603 F.3d 571, 628 (9th Cir. 2010) (en banc), and then to the Supreme Court, which

23 reversed, holding that Plaintiffs had failed to identify a “common question” tying together

24 the 1.5 million class members’ claims. Dukes, 131 S. Ct. at 2556-57.

25

Returning to the drawing board, Plaintiffs amended their complaint to propose a new

26 class focused on Wal-Mart’s “California Regions.” See Dkt. 767. Wal-Mart moved to

27 dismiss the revised class allegations on several grounds, including that the Supreme Court’s

28 decision had completely rejected Plaintiffs’ theory of commonality, foreclosing certification.

2

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1 See dkt. 781. This Court denied that motion, reasoning that the Supreme Court’s opinion

2 rested in part on a rejection of Plaintiffs’ evidence of commonality, and that Plaintiffs’ new

3 complaint made allegations which, if proved, could provide one or more common questions

4 suitable for class treatment. See Dkt. 812. After conducting additional discovery for more

5 than one year, Plaintiffs now move for class certification. See Dkt. 891.

6 II. DISCUSSION

7

This Court has the unique benefit of the Supreme Court’s guidance on the application

8 of Rule 23's commonality requirement to the record in this case. Its opinion details the

9 problems that foreclosed certification, and so the question for this Court is whether the

10 changes Plaintiffs have made and the new evidence they present resolve those problems.

11

Plaintiffs assert Title VII disparate treatment and disparate impact claims, alleging that

12 Wal-Mart discriminated against women in making two types of pay decisions (hourly and

13 salaried) and two types of promotion decisions (Management Trainee and Support Manager).

14 See Mot. at vi. They propose to certify three regional classes of

15

[a]ll women employed at any retail store in [Wal-Mart Region 16 or Wal-Mart

Region 19 or Sam’s Club Region 18E] at any time from December 26, 1998, to

16

December 31, 2002, who were subject to: a) the compensation system for

hourly retail sales positions; b) the compensation system for salaried

17

management positions up to and including Co-Manager; and c) the promotion

system into Management Trainee/Assistant Manager and Support

18

Manager/Area Manager. The class does not include Store Managers or

Pharmacists.

19

Id.

20

Plaintiffs identify five common questions that, in their view, tie the proposed class

21

together: whether (1) Wal-Mart’s “tap on the shoulder” system for making promotions into

22

Management Trainee and Support Manager positions had an adverse impact on women; (2) a

23

core group of high-level managers engaged in a pattern or practice of intentionally denying

24

women equal opportunity to receive promotions into management trainee and support/area

25

manager positions; (3) Wal-Mart’s Field Compensation Guidelines for making hourly pay

26

decisions had an adverse impact on women; (4) Wal-Mart’s guidelines for salaried pay

27

decisions had an adverse impact on women; and (5) the managers charged with making pay

28

decisions for the hourly and salaried employees engaged in a pattern or practice of

3

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1 intentionally compensating women less than similarly situated men because of their gender.

2 Mot. at 27. The second and fifth questions go to whether Wal-Mart intentionally

3 discriminated against women, while the first, third, and fourth fall under Plaintiffs' disparate

4 impact claim.

5

Though Plaintiffs argue at some length in the abstract about the differences between

6 the elements of a disparate treatment claim and a disparate impact claim, their actual

7 argument in support of class certification ultimately makes little distinction between the two.

8 See Mot. at 30-31. Essentially, Plaintiffs argue that the statistics show that women were

9 consistently disfavored, and those outcomes were either a result of intentional discrimination

10 documented in Plaintiffs' cultural and anecdotal evidence (i.e., disparate treatment), or they

11 resulted from newly-identified specific employment practices that had a disparate impact on

12 women.

13

A. Wal-Mart’s Decision Making Structure

14

A basic overview of how Wal-Mart structured its business provides a useful starting

15 point for the specifics of each claim. Wal-Mart divided its nationwide operations into six

16 different geographical divisions (and one Sam’s Club division); each division contained

17 about six regions, and each region comprised about eleven districts, with six to eight stores

18 per district. E.g., Harper Dep., Pl. Ex. 3, at 141, 215-16. The class proposed in this motion

19 concerns employees from three regions containing a total of 250 stores.

20

Each region had one Regional Vice President and one Regional Personnel Manager

21 (RPM). See Ellison Dep., Pl. Ex. 50, at 74-75. A District Manager ran each district. Harper

22 Dep. at 162. As pertinent to this motion, the store-level management structure had four tiers,

23 with a single Store Manager at the top, followed by Assistant Managers, then Management

24 Trainees, and finally Support Managers at the bottom.1 See Harper Dep. at 35-36, 108-09;

25

26

27

1The structure at Sam’s Club was basically the same, but the titles were different; for example,

the person in charge of an individual store was called the General Manager instead of the Store 28 Manager. This Order uses the Wal-Mart nomenclature even when referring to the equivalent positions

in the Sam’s Club region.

4

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1 Schaffner Dep., Pl. Ex. 21, at 79-80. The top three tiers were salaried positions, while

2 Support Managers were paid by the hour. See Pl. Exs. 87, 97.

3

B. Disparate Treatment

4

To show a common question underlying their disparate treatment claims, Plaintiffs

5 must provide “significant proof that Wal-Mart operated under a general policy of

6 discrimination.” Dukes, 131 S. Ct. at 2554. The Supreme Court concluded that Plaintiffs'

7 only evidence of such a policy, a declaration from their sociology expert Dr. William Bielby,

8 was not good enough because it did not link the alleged culture of gender bias to the

9 challenged pay and promotion decisions. Id. at 2553-54.

10

The Supreme Court also reviewed Plaintiffs' statistical and anecdotal evidence of a

11 pattern or practice of discrimination, and found both too weak to support a conclusion that

12 the company operated under a general policy of discrimination. The statistical evidence

13 failed to account for the possibility that discrimination was an isolated problem skewing

14 regional numbers, and the anecdotal evidence collectively represented only one account for

15 every 12,500 class members, and described experiences at only about seven percent of the

16 stores covered by the proposed class. Id. at 2555-56 & n.9. Plaintiffs have now returned

17 with new versions of each of the types of evidence the Supreme Court found inadequate.

18

Statistics: Plaintiffs say that they have addressed the Supreme Court's criticisms of

19 their statistics by conducting new analyses revealing a consistent pattern of disparities across

20 the relevant decision making levels. In fact, however, the new numbers are underwhelming.

21 Looking first at the promotion statistics, Plaintiffs' analysis shows that for Management

22 Trainees, who were selected by district-level decision makers: 11 of 19 districts in Region 16

23 showed statistically significant disparities, as did 6 of 13 districts in Region 19, and 2 of 10

24 districts in Region 18E. Thus, in two regions a majority of districts showed no statistically

25 significant results, and in the last region, only a little over half of the districts had statistically

26 significant disparities.

27

For Support Managers, who were selected at the store level, Plaintiffs’ new statistics

28 show no statistically significant store-level disparities in any of the three regions. Plaintiffs

5

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1 say that the numbers for each store were too small to generate significant results, and so they

2 conducted the analysis at the next highest (i.e., district) level, where 16 of 20 districts in

3 Region 16 showed statistically significant disparities, as did 9 of 14 districts in Region 19,

4 and 2 of 18 districts in Region 18E. But elevating the level of analysis runs afoul of the

5 Supreme Court's objection to Plaintiffs' old statistics: district-level disparities may or may not

6 reflect consistent results across stores, which was the level where support managers were

7 actually selected.

8

Regarding pay, Plaintiffs challenge decisions made by store-level decision makers for

9 hourly associates and by regional-level decision makers for salaried managers. Plaintiffs

10 concede that under their own analysis, for each year in the class period at least 74% of

11 individual stores showed no statistically significant disparity in pay. Hr'g Tr. (dkt. 981) at 22

12 . The regional-level data for salaried pay is complicated; Plaintiffs' regression model with

13 the most control variables showed statistically significant results in 42.9% of the years

14 analyzed for Region 16, 71.4% of the years for Region 19, and 71.4% of the years for Region

15 18E. Drogin Decl. (dkt. 895) at 35 tbl.20.

16

Responding to Wal-Mart’s emphasis on the lack of statistical significance for many

17 of the challenged decisions, Plaintiffs argue that their statistics nevertheless constitute

18 evidence of disparity because a pattern of statistically insignificant results can still be

19 evidence of a common question. Reply (dkt. 965) at 10-11 (relying on "Sign test" results

20 submitted for the first time with reply brief). Such a pattern surely does constitute some

21 evidence in support of their claim–but the question is whether the new evidence is so strong

22 that it bridges the "worlds away" gap the Supreme Court described between Plaintiffs’

23 previous showing and Rule 23's requirements. Dukes, 131 S. Ct. at 2554.

24

Ultimately, Plaintiffs' numbers are not much stronger than they were when they failed

25 to carry the day at the Supreme Court. They have not identified statistically significant

26 disparities in even a majority of the relevant decision units in any region across the

27 challenged pay and promotion decisions. To be sure, Plaintiffs did better in some places than

28 others; for example, their analysis shows statistically significant disparities in a majority

6

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1 (58%) of districts in Region 16 for the Management Trainee promotion. And so, as alluded

2 to above, if Plaintiffs had been more circumspect in the scope of their proposed class, their

3 statistics may have had a bigger impact. But under the class actually proposed, this Court

4 has little difficulty concluding that the statistics still do not reflect "significant proof" of a

5 "general policy of discrimination" in each region across the challenged decisions. See Ellis

6 v. Costco Wholesale Corp., 657 F.3d 970, 983 (9th Cir. 2011) ("If there is no evidence that

7 the entire class was subject to the same allegedly discriminatory practice, there is no question

8 common to the class.") (emphasis added).2

9

Non-Statistical Evidence: Even if the numbers had been better for them, Plaintiffs

10 have another problem. They argue that "statistical disparities alone may be sufficient to meet

11 [the] burden" of showing significant proof of a general policy of discrimination. Reply at 2

12 (citing Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 339 (1977)). In a rare and

13 extreme case, the statistics might speak for themselves. See Teamsters, 431 U.S. at 337-38

14 (company had 1,828 line drivers yet prior to the litigation had zero African American

15 drivers).

16

In the Supreme Court's view, however, this is not one of those cases. Rather, the

17 Court made clear that Plaintiffs could not rely on a simple showing that women consistently

18 faced worse outcomes; to satisfy Rule 23 they had to also show the existence of a "common

19 answer to the crucial question why was I disfavored." 131 S. Ct. at 2552; cf. Gay v. Waiters'

20 & Dairy Lunchmen's Union, 694 F.2d 531, 552-53 (9th Cir. 1982) ("[S]tatistics

21 demonstrating that chance is not the more likely explanation are not by themselves sufficient

22 to demonstrate that [intentional discrimination] is the more likely explanation for an

23 employer's conduct.").

24

25
2Each side has offered a declaration by an expert statistician, and both sides have 26 objected–improperly under the Local Rules, see Civil L.R. 7-3(a)-(c) (requiring that evidentiary
objections be included within the body of the opposition and reply briefs)–to the other side’s expert 27 evidence (and other evidence). See dkts. 963, 961, 923, 919. The Court DENIES all of the motions as
moot; aside from Plaintiffs’ statistical expert, the Court need not consider or rely on any of the 28 challenged evidence in ruling on the motion. And as the above discussion makes clear, the outcome of
the motion likewise does not turn on the admissibility of Plaintiffs’ statistical evidence.

7

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1

At the Supreme Court, Plaintiffs attempted to provide non-statistical evidence that a

2 general policy of intentional discrimination created the disparities by introducing testimony

3 of an expert sociologist. The Supreme Court disregarded that evidence and Plaintiffs have

4 since abandoned it. Plaintiffs also supplied anecdotal accounts that the Supreme Court found

5 "too weak to raise any inference" of a general policy of intentional discrimination. Dukes,

6 131 S. Ct. at 2553-54, 2556. In place of their sociology expert, Plaintiffs now describe

7 regular communications among management and shared training, which they say contributed

8 to a “strong common culture” and shared stereotypes about women. Mot. at 30.

9

The Supreme Court did not fault Plaintiffs for failing to demonstrate that Wal-Mart

10 management had some "common culture" or set of shared values reinforced through training.

11 Nor did it deny that through regular interaction and training, managers harboring biases

12 against women and stereotyped views of women might share those views with others.

13 Rather, it ruled that absent some evidence that discrimination against women was actually

14 directed by Wal-Mart, Plaintiffs' evidence of the possibility or even likelihood that individual

15 biases might spread was not "significant proof" of a general policy of discrimination

16 explaining the thousands of employment decisions specifically challenged by Plaintiffs’

17 lawsuit. Dukes, 131 S. Ct. at 2553-55.

18

In response, Plaintiffs now point to a statement they attribute to Wal-Mart’s CEO that

19 was made during a meeting of District Managers. Their evidence of that statement consists

20 of typed notes from a 2004 meeting presided over by Wal-Mart’s then-CEO. Plaintiffs say

21 those notes show that the CEO expressed the view that men were better at “focus single

22 objective [sic]” and were more “results driven,” and that Wal-Mart should select leaders

23 based on their ability to deliver results. Mot. at 14 (citing Ex. 63). That is one, though not

24 the only, potential reading of the ambiguous notes.

25

Wal-Mart has offered evidence suggesting that the statements at issue were in fact

26 made by an outside academic consultant invited to speak at the meeting, and that the actual

27 message of the presentation was that companies able to create a culture that leverages the

28 talents of both males and females would be at a competitive advantage. See Brockbank Decl.

8

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1 (dkt. 915-4). At his deposition, the CEO declined to agree with the notion that men were

2 better at focusing on a single objective. Pl. Ex. 113 (dkt. 894-66) at 320-22.

3

In sum, the notes were cryptic and ambiguous; it is unclear who made them; they

4 apparently reflect statements by an outside speaker, not Wal-Mart’s CEO; the alleged

5 statements have no connection to the so-called “California regions” in particular; and the

6 meeting was actually held after the end of the currently proposed class period. Accordingly,

7 the Court concludes that the notes add little to Plaintiffs’ showing of significant proof of a

8 general policy of intentional discrimination.

9

Plaintiffs suggest that even without evidence of a directive by Wal-Mart to

10 discriminate, they have addressed the Supreme Court's criticisms by identifying a core group

11 of biased upper-level managers who influenced all of the challenged decisions by lower-level

12 managers. Mot. at 27, 30-31. Plaintiffs' evidence falls short on two levels: even the smaller

13 group is quite large, and Plaintiffs' evidence of bias among their proposed subgroup of

14 managers remains too weak to satisfy their burden of providing "significant proof" of a

15 general policy of discrimination.

16

According to Plaintiffs, District Managers, supervised by Regional Personnel

17 Managers, made the selections for the Management Trainee promotion, id. at 15, while Store

18 Managers, supervised by District Managers, made the Support Manager promotions, id. at

19 18. On the pay side, Store Managers set and adjusted pay rates for hourly employees, id. at

20 20-23, and Regional Personnel Managers set and adjusted salaries for management, id. at 23-

21 24. At oral argument on this motion, Plaintiffs stated that there were 4 different Regional

22 Vice Presidents, 7 Regional Personnel Managers, 49 District Managers, and 400 Store

23 Managers occupying those positions during the proposed class period across all three

24 regions. Hr'g Tr. at 18-19. So Plaintiffs acknowledge that over 450 different managers were

25 responsible for making the contested decisions.

26

Plaintiffs argue that "top" level managers in that group exercised a strong influence

27 over the rest through formal oversight responsibility, regular communication with District

28 and Store Managers regarding personnel issues, and a “management by exception” reporting

9

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1 system for pay decisions. But their definition of "top" management is a bit slippery, which

2 probably could not be avoided given the diversity of decisions they challenge. Though

3 Plaintiffs emphasize the role of regional managers, especially Regional Personnel Managers

4 e.g., Hr'g Tr. 13-15, in the challenged decision processes, for at least one of the four

5 challenged decisions (Support Manager promotions), Plaintiffs' own evidence suggests that

6 District Managers were the highest level of management actively involved in individual

7 decisions. See Mot. 18 ("Store Managers, in consultation with District Managers, were

8 responsible for selecting Support Managers."). Thus, "top" management was at least 56

9 different people even if Plaintiffs’ characterization of the decision making process is

10 accurate.

11

And it is not accurate. Plaintiffs go to great lengths attempting to prove that Regional

12 Personnel Managers actively guided District Managers in making Management Trainee

13 promotion decisions, see Mot. at 15 n.86, but they overstate the strength of their evidence,

14 which makes clear that, in fact, Regional Personnel Managers were not always or even

15 regularly involved in the details of each individual decision in each region. See Martinez

16 Dep., Pl. Ex. 33, at 146 (RPM testified that “as far as being directly responsible for making

17 these decisions, it was made by the district manager”); Van Allen Dep., Pl. Ex. 38, at 69

18 (“Q: RPM’s were involved, correct? A: In some situations; not in all.”); Ellison Dep., Pl. Ex.

19 50, at 151 (District Managers had “the most responsibility” for making selections, though

20 RPM’s “would help hire for that role in a college recruiting environment”).

21

And for the Support Manager promotions, which were more numerous and so account

22 for a larger percentage of the class, compare Drogin Decl. tbl.16, with id. tbl.18, Plaintiffs

23 offer only two pieces of evidence that District Managers were involved in the decisions.

24 First, they point to job duty language indicating District Manafers’ formal responsibility over

25 staffing issues in their district, see Pl. Ex. 83 at 22358, 22361, which says nothing about

26 whether the practice was to delegate to Store Managers the task of selecting individuals for

27 this particular promotion. Second, Plaintiffs offer deposition testimony from one Regional

28 Vice President who testified that "most" district managers would expect to be kept informed

10

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1 of all Support Manager promotion decisions, but who also testified that "store manager[s]

2 had latitude to make that [Support Manager promotion] choice on their own." Butler Dep.,

3 Pl. Ex. 37, at 215.

4

Wal-Mart provides declarations from Store and District Managers confirming that

5 District Managers were rarely, if ever, actively involved in the Support Manager promotion

6 decisions. See Adams Decl. (dkt. 915-1) ¶ 6 (“As a District Manager, I had very little to do

7 with promotions for the Support Manager position within the stores.”); Smoot Decl. (dkt.

8 915-35) ¶ 17 (“As a District Manager, I had a very limited role in selecting associates for

9 promotion to the Support Manager position.”); Roesner Decl. (dkt. 915-28) ¶ 4; Terry Decl.

10 (dkt. 915-38) ¶ 8.

11

Moreover, as Plaintiffs themselves recognize, they have not amassed sufficient

12 anecdotal evidence of bias and stereotyped thinking among management to establish

13 significant proof of a general policy of discrimination within any management group, “top”

14 or otherwise. At the hearing on this motion, Plaintiffs described their anecdotes as relevant

15 but not necessary to their disparate treatment claim, invoking the Supreme Court's language

16 from Teamsters that real-life examples bring "the cold numbers to life." Hr'g Tr. 15-16;

17 Teamsters, 431 U.S. at 339.

18

Plaintiffs say that they have anecdotes reflecting stereotyped views expressed by 2 of

19 4 Regional Vice Presidents, 1 of 7 Regional Personnel Managers, 2 of 49 District Managers,

20 and 7 of 400 Store Managers. Hr'g Tr. at 18-19. Accordingly, Plaintiffs have offered

21 evidence of bias exhibited by about five percent of the "top" level management they say

22 guided lower-level decisions, and three percent of the full pool of managers involved in the

23 decisions. Though Plaintiffs succeeded in illustrating attitudes of gender bias held by

24 managers at Wal-Mart, they failed to marshal significant proof that intentional discrimination

25 was a general policy affecting the entire class.

26

Plaintiffs' anecdotes by class members do not help their case much. The Supreme

27 Court found Plaintiffs' earlier version of that evidence unpersuasive because "when the claim

28 is that a company operates under a general policy of discrimination, a few anecdotes selected

11

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1 from literally millions of employment decisions prove nothing at all." 131 S. Ct. at 2556 n.9.

2 Though it carefully avoided setting a numerical cut-off, the Supreme Court approvingly cited

3 a case where plaintiffs had submitted one anecdote for every eight class members. 131 S. Ct.

4 at 2556 (citing Teamsters, 431 U.S. 324).

5

Plaintiffs have added sixty-one new declarations to supplement the previously

6 submitted twenty-five declarations, and have reduced the class size to about 150,000 women,

7 Mot. at 1, 27, meaning that they now have one anecdote for about every 1,745 class

8 members. Plaintiffs' ratio of anecdotes to class members thus remains quite low, and even if

9 all of the anecdotes were by class members who worked during the class period and were

10 spread out evenly over the proposed class–and Wal-Mart says they are not–this Court would

11 not conclude that 86 anecdotes for a 150,000-member class meaningfully improves Plaintiffs'

12 showing.

13

Accordingly, the Court DENIES Plaintiffs' motion to certify their disparate treatment

14 claims for class treatment.

15

C. Disparate Impact

16

Plaintiffs argued to the Supreme Court that Wal-Mart's practice of delegating

17 discretion over the challenged pay and promotion decisions to local managers resulted in a

18 disparate impact on women in violation of Title VII. The Supreme Court rejected their

19 claim, holding that a "'policy' of allowing discretion by local supervisors over employment

20 matters . . . . is just the opposite of a uniform employment practice that would provide the

21 commonality needed for a class action; it is a policy against having uniform employment

22 practices." 131 S. Ct. at 2554. The Court faulted Plaintiffs for failing to "identif[y] a

23 common mode of exercising discretion that pervades the entire [class],” and failing to

24 identify a "specific employment practice" they were challenging. Id. at 2554-56. For a large

25 nationwide class, the Court concluded it was “quite unbelievable that all managers would

26 exercise their discretion in a common way without some common direction.” Id. at 2555.

27

Plaintiffs now enumerate what they consider to be five "specific employment

28 practices" guiding local managers' discretion that were responsible for the promotion and pay

12

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1 disparities. They are, for the promotion claims: (1) a “promotion from within” policy, (2) a

2 policy not to post job openings, (3) the use of promotion guidelines with a requirement that

3 candidates be willing to relocate, and (4) common subjective criteria used to select

4 candidates, Mot. at vii, 30; and for the pay claims: (5) Wal-Mart's Field Compensation

5 Guidelines, which enumerated criteria that managers were to consider in making pay

6 decisions, id. at 31.

7

Each of the proposed practices suffers from one of two problems: (1) the evidence

8 indicates that the practice did not actually apply across the proposed class for the proposed

9 class period, or (2) the practice itself boils down to delegating discretion, which the Supreme

10 Court held could not provide the commonality necessary to certify a class.

11

1. Not Applicable Across the Class

12

At oral argument on this motion, Plaintiffs conceded that the relocation requirement

13 and the failure to post job openings were not actually classwide practices. Hr'g Tr. at 29

14 ("That [relocation requirement] only applied for Manager in Training selections."); id. (“Is

15 there some evidence that some managers did post job openings, even before January of

16 2002? And the answer is: Yes, but not much."). Notwithstanding Plaintiffs' characterization

17 that "not much" evidence supports the notion that some managers decided to post Support

18 Manager openings, their own expert concluded that 29.2 percent of openings were posted in

19 2000 and 43.3 percent of positions were posted in 2001. Id. In fact Wal-Mart actually

20 instituted a requirement that Support Manager openings be posted in January 2002, see Pl.

21 Ex. 86 (dkt. 894-39), yet Plaintiffs seek to certify class covering the period from December

22 1998 to December 2002. Mot. at vi.

23

Nor have Plaintiffs established a classwide policy of promoting from within. One

24 Regional Personnel Manager (it is not clear from which region) testified that such a policy

25 was in place. See Wilson Depo., Pl. Ex. 85, at 80. But another–again, Plaintiffs do not

26 indicate from which region–testified as follows: “Q: [I]s it your understanding that there is a

27 preference for promotion from within? A: I don’t necessarily think it’s a preference, but I

28 think it is a natural course of progression to develop people in conjunction with the growth of

13

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1 the company.” Martinez Depo., Pl. Ex. 33, at 156 (emphasis added). That it made good

2 business sense to identify and promote high-performing people does not establish that Wal-

3 Mart preferred internal hires over external hires.

4

Likewise, the remaining deposition testimony Plaintiffs cite indicates that Wal-mart

5 pitched its career advancement opportunities to its employees, which is neither surprising nor

6 particularly relevant to whether the company actually had a policy of favoring internal

7 candidates when it came time to fill a spot. See Miller Depo., Pl. Ex. 39, at 151-53;

8 Annatone Depo, Pl. Ex. 84, at 222-23. Thus, Plaintiffs’ evidence consists of two Regional

9 Personnel Managers who disagreed whether Wal-Mart had a “promotion from within”

10 policy, and other deposition testimony that does not speak directly to the issue. That does

11 not establish the existence of a classwide policy of promoting from within.3

12

Practices that do not apply during the entire class period across the class cannot

13 provide a common question tying the class together.4

14

2. Repackaged Delegated Discretion

15

Plaintiffs say they are challenging the "common subjective criteria" used by managers

16 in making promotion decisions, and the company-imposed Field Compensation Guidelines

17 constraining pay decisions. Plaintiffs’ evidence and argument, however, reveal that the

18 constraints were largely illusory, and Plaintiffs continue to challenge Wal-Mart’s practice of

19 delegating discretion to local managers.

20

Specifically, Plaintiffs say that Wal-Mart limited managers' discretion in making the

21 challenged decisions by requiring them to:

22 • 23 24 25

consider whether candidates for the Manager Trainee promotion had "communication skills," "interpersonal skills," "organization skills," "goals," "flexibility," "enthusiasm," "adaptability," "leadership ability," "merchandising skills," and "confidence," Mot. at 16 (citing Ex. 68 at 371493);

26

3Also, after the one sentence in their class certification brief asserting that such a policy existed,

see Mot. at 15, Plaintiffs never again mention it or make any argument that it could tie the claims of all 27 150,000 class members together.

28

4This Order does not address whether those practices would support a disparate impact claim

if they were in fact used across the class during the proposed class period.

14

Case3:01-cv-02252-CRB Document991 Filed08/02/13 Page15 of 17

United States District Court For the Northern District of California

1

2•

consider whether candidates for the Support Manager promotion possessed "similar"

characteristics, including "the capacity, ability, and desire to lead," "high integrity,"

3

"maturity," "common sense," "self-starter," "knowledgeable," "ability to

4

communicate," "ability to learn," and "ability to work nights/weekends," Mot. at 18

5

(citing Pl. Ex. 18);

6•

consider only an hourly employee's "additional skills, experience, or education" in

7

setting the employee's starting pay rate within a predefined range, Mot. at 21 (citing

8

Field Compensation Guidelines, Pl. Ex. 87);

9• 10
11

consider whether an hourly employee exhibited "exceptional performance above job responsibilities" in deciding whether to grant the employee a merit-related raise, Mot. at 22 (citing Field Compensation Guidelines, Pl. Ex. 88)

12 Plaintiffs do not identify any particular criteria imposed by the company to be considered in

13 setting starting management salaries, see Mot. at 23, and management raises were based on

14 formal performance ratings. Id.

15

For only one of the four challenged decisions (hourly employee pay) have Plaintiffs

16 even argued that the supplied criteria were exhaustive, i.e., that Wal-Mart prohibited

17 managers from considering other factors. Some managers explicitly suggested that other

18 considerations came into play. See, e.g., Butler Depo., Pl. Ex. 37, at 266 ("There may be

19 more than that but those are the basics."). More importantly, even if each manager felt

20 obligated to rely only on the enumerated factors, the criteria were so vague or numerous that

21 they imposed no real constraints.

22

To be sure, certain criteria used by, or imposed on, managers making personnel

23 decisions could have a disparate impact on women. See Dukes, 131 S. Ct. at 2554 (“Other[]

24 [managers] may choose to reward various attributes that produce disparate impact–such as

25 scores on general aptitude tests or educational achievements.”). Here, however, Plaintiffs do

26 not argue in substance that the criteria themselves, faithfully applied, led to a disparate

27 impact. For example, Plaintiffs never suggest that prioritizing the “ability to communicate”

28 over some other trait had a disparate impact on women.

15

Case3:01-cv-02252-CRB Document991 Filed08/02/13 Page16 of 17

United States District Court For the Northern District of California

1

Instead, Plaintiffs repeatedly complain about the broad discretion managers retained in

2 applying the vague criteria. See Mot. at 31 ("The Guidelines also dictated the criteria that

3 Store Managers should use in setting pay but afforded the managers discretion in interpreting

4 them.") (emphasis added); see also Hr'g Tr. at 4 ("[I]n all three regions Wal-Mart instructed

5 the people making the selections at the district level to consider leadership ability, confidence

6 and goals, without providing any guidance on what those terms mean.") (emphasis added);

7 id. at 5 ("The same is true for the Support Managers. They give factors such as the capacity,

8 ability, and desire to lead . . . with no definition of what those mean; just whatever they think

9 is relevant to the job.") (emphasis added); id. at 9 ("[T]hey give a factor there [for awarding

10 discretionary merit pay increases] for exceptional performance; a common discrete factor

11 that the managers are charged with interpreting, but no guidance on how to interpret.")

12 (emphasis added).

13

In Plaintiffs view, managers, who were left without meaningful guidance in applying

14 the impossibly vague criteria, fell back on their own stereotyped views of women in making

15 pay and promotion decisions. Mot. at 30 ("For want of objective criteria, decision makers

16 chose 'people who are like themselves.'"); id. at 31 (“As with promotion decisions, the [pay]

17 decisions were made in the context of shared culture, training, and biases.”). That is a

18 perfectly logical theory, but it leaves Plaintiffs right back where they started: challenging

19 Wal-Mart’s practice of delegating discretion to local managers, which the Supreme Court

20 specifically held was not a specific employment practice supplying a common question

21 sufficient to certify a class. See 131 S. Ct. at 2554-56.

22

In sum, Plaintiffs have not identified any specific employment practice applicable to

23 the proposed class that ties the claims together in a way the Supreme Court has not already

24 rejected. Accordingly, the Court DENIES Plaintiffs’ motion to certify the disparate impact

25 claims for class treatment.

26 III. CONCLUSION

27

Plaintiffs' proposed class suffers from the same problems identified by the Supreme

28 Court, but on a somewhat smaller scale. Indeed, it is revealing that there is no particular

16

Case3:01-cv-02252-CRB Document991 Filed08/02/13 Page17 of 17

United States District Court For the Northern District of California

1 logic to the precise scope of the class Plaintiffs now propose. They picked three corporate

2 regions covering a smaller area than the rejected national class, but nothing in Plaintiffs'

3 evidence shows that those three regions are actually different from any other Wal-Mart

4 regions along any relevant dimension. Rather than identify an employment practice and

5 define a class around it, Plaintiffs continue to challenge the discretionary decisions of

6 hundreds of decision makers, while arbitrarily confining their proposed class to corporate

7 regions that include stores in California, among other states. Accordingly, the Court

8 DENIES their motion for class certification.5 This Order does not consider whether Plaintiffs

9 themselves were victims of discrimination as alleged in their complaint; those individual

10 claims shall proceed in this litigation.6

11

IT IS SO ORDERED.

12 Dated: August 2, 2013
13

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

14

15

16

17

18

19

20

21

22

23

24

25

26 5Because this Court concludes that the commonality issue is dispositive, it does not reach Wal-
27 Mart’s alternative arguments for why class certification should be denied.

28

6Wal-Mart has moved for partial summary judgment on some of the individual claims. See dkts.

921, 922. This Order does not address those motions.

G:\CRBALL\2001\2252\dukes class cert order.wpd

17

 
 FOR IMMEDIATE RELEASE Monday, April 26, 2010
Contact: Art Silverman art@turnerstrategies.com 202-365-5554
Largest Discrimination Lawsuit in U.S. History Gets Green Light After years of delay, female Wal-Mart workers may get their day in court
(WASHINGTON, D.C., April 26, 2010) After nearly a decade of pre-trial wrangling, the U.S. Court of Appeals for the Ninth Circuit ruled today in a 100-page decision that hundreds of thousands of female Wal-Mart current and former employees who have worked at Wal-Mart stores at any time since June 2001 are entitled to proceed with a massive class action lawsuit charging sex discrimination by America’s largest retailer.
Their case (Dukes v. Wal-Mart Stores, Inc.) alleges systematic discrimination against women in compensation and promotions at Wal-Mart and its subsidiary, Sam’s Club, throughout the United States. It is the largest civil rights class action in history.
Betty Dukes, a Wal-Mart greeter in Pittsburg, Calif., first filed suit along with five of her coworkers in 2001. Wal-Mart attorneys have been fighting ever since to keep the case from ever going to trial. But the women have prevailed on the question of whether the case can go to trial on behalf of the class. Today’s decision – the third from the Ninth Circuit -- is from an expanded panel of 11 Court of Appeals judges.
In announcing the decision today, a majority of the judges, who heard the case, found that it was a proper class action for female employees who have worked at Wal-Mart since the suit was filed in June 8, 2001. The class can seek lost pay and injunctive relief. It sent the case back to the lower court to determine whether women who were employed prior to that date may be part of the class and whether the class can seek punitive damages.
The opinion rejected Wal-Mart’s argument that the case was too large to be a class. Judge Susan Graber, joining the majority, explained the ruling was “unremarkable…” The majority held that “ [a]lthough the size of this class action is large, mere size does not render a case unmanageable.”
“It has taken a very long time, and a tremendous amount of work, but it looks like we’re finally going to get our day in court,” says lead plaintiff Betty Dukes. “That’s all we’ve ever asked for.”
The women’s case has been bolstered by Wal-Mart’s own records. Although more than twothirds of Wal-Mart’s hourly employees are female, the records showed that women represented fewer than one-third of lower-level managers, and only 15 percent of store manager positions.
TurnerStrategies |1001 Connecticut Ave., NW, Suite 710 | Washington, DC 20006 | t 202-466-9633 f 202-466-2170

Women were paid less than men of equal seniority in every major job category, even though women on average had higher performance ratings and lower turnover rates than men. “Wal-Mart tries to project an improved image as a good corporate citizen,” says Brad Seligman, lead counsel for the plaintiffs and executive director of the Impact Fund, a nonprofit Berkeley, California foundation. “But no amount of PR is going to work until it addresses the claims of its female employees.” Co-lead counsel Joseph Sellers, who heads the civil rights practice at Cohen Milstein, in Washington, D.C., agrees: “I hope this decision paves the way for Wal-Mart to put behind this sad chapter of its history and become as much a leader in the fair treatment of its workers as it has been a leader in financial results.” Seligman and Sellers say they hope to be in court for the actual trial within a year. Aside from the Impact Fund and Cohen Milstein, the plaintiffs also are represented by Equal Rights Advocates (ERA), San Francisco; the Public Justice Center in Baltimore; Davis Cowell & Bowe, San Francisco; and Stephen Tinkler and Merit Bennett, Santa Fe, N.M. Plaintiffs’ counsel includes some of the most experienced class action and sex discrimination attorneys in the country.
# # #
TurnerStrategies |1001 Connecticut Ave., NW, Suite 710 | Washington, DC 20006 | t 202-466-9633 f 202-466-2170

 
 Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 1 of 106
ADRMOP,APPEAL,CLOSED,E−Filing,ProSe,REFDIS,STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:01−cv−02252−CRB

Dukes et al v. Wal−Mart Stores, Inc. Assigned to: Hon. Charles R. Breyer Referred to: Magistrate Judge Jacqueline Scott Corley Case in other court: USCA, 16−16451 Cause: 28:1332 Diversity−Employment Discrimination
Plaintiff

Date Filed: 06/08/2001 Date Terminated: 07/15/2016 Jury Demand: Plaintiff Nature of Suit: 442 Civil Rights: Jobs Jurisdiction: Federal Question

Betty Dukes

represented by Brad Seligman Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 510−845−3473 ext 304 Fax: 510−845−3654 Email: bseligman@impactfund.org TERMINATED: 01/04/2013 LEAD ATTORNEY

Debra A. Smith Equal Employment Opportunity Commission 450 Golden Gate Ave POB 36025 San Francisco, CA 94102 415−522−3425 Email: debra.smith@eeoc.gov TERMINATED: 08/05/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne Kendrick Richardson Public Counsel 610 South Ardmore Avenue Los Angeles, CA 90005 213−385−2977 Fax: 213−385−9089 Email: arichardson@publiccounsel.org TERMINATED: 09/19/2014

Arcelia Leticia Hurtado Equal Rights Advocates 180 Howard Street, Suite 300 San Francisco, CA 94105 415−575−2384 Fax: 415−621−6744 Email: ahurtado@nclrights.org TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED

Charles V. Firth Tinkler & Firth 309 Johnson Street Santa Fe, NM 87501 505−982−8533 ATTORNEY TO BE NOTICED

Christine E. Webber Cohen Milstein Sellers & Toll PLLC

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 2 of 106
1100 New York Avenue, Ste 500 Washington, DC 2005−3964 202−408−4600 Email: cwebber@cohenmilstein.com ATTORNEY TO BE NOTICED
Cornelia Dai Hadsell Stormer & Renick, LLP 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103−3645 626−585−9600 Fax: 626−577−7079 Email: cdai@hadsellstormer.com ATTORNEY TO BE NOTICED
Debra Lynn Gardner Public Justice Center One N Charles St Ste 200 Baltimore, MD 21201−3710 410−625−9409 Email: gardnerd@publicjustice.org TERMINATED: 04/11/2013 ATTORNEY TO BE NOTICED
Elizabeth A. Lawrence Law Offices of Elizabeth A. Lawrence 1569 Solano Ave., # 456 Berkeley, CA 94707 415−272−4305 Email: ealawrencelaw@gmail.com ATTORNEY TO BE NOTICED
Irma Herrera Equal Rights Advocates 1663 Mission Street, Ste 250 San Francisco, CA 94103 415−621−0672 Email: iherrera@equalrights.org TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED
Jennifer Abby Reisch Equal Rights Advocates 1170 Market Street Suite 700 San Francisco, CA 94102 415−621−0672 x384 Fax: 415−621−6744 Email: jreisch@equalrights.org ATTORNEY TO BE NOTICED
Jenny Rae Yang Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, Ste 500 Washington, DC 20005 202−408−4600 Email: jyang@cohenmilstein.com TERMINATED: 05/09/2013 ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin Impact Fund 125 University Avenue, Ste 102 Berkeley, CA 94710 510−845−3473 x306

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 3 of 106
Email: jlarkin@impactfund.org ATTORNEY TO BE NOTICED
Joseph Marc Sellers Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, Ste 500 Washington, DC 20005−3964 202−408−4600 Email: jsellers@cohenmilstein.com ATTORNEY TO BE NOTICED
Merit Bennett 460 St. Michael's Drive, Ste 703 Santa Fe, NM 87505 505−983−9834 ATTORNEY TO BE NOTICED
Michael Victor Caesar Lewis Feinberg Lee & Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: mcaesar@lewisfeinberg.com TERMINATED: 11/14/2013 ATTORNEY TO BE NOTICED
Michelle Anne Caiola Disability Rights Advocates 655 Third Avenue 14th Floor New York, NY 10017 212−644−8644 ext. 301 Fax: 212−644−8636 Email: mcaiola@dralegal.org ATTORNEY TO BE NOTICED
Noreen A. Farrell Equal Rights Advocates 1170 Market Street, Suite 700 San Francisco, CA 94102 415−621−0672 Fax: 415−621−6744 Email: nfarrell@equalrights.org ATTORNEY TO BE NOTICED
Peter Romer−Friedman Outten and Golden LLP 601 Massachussets Ave NW Second Floor West Washington, DC 20001 United Sta 202−847−4400 Fax: Email: prf@outtengolden.com TERMINATED: 05/07/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Randy R. Renick Hadsell Stormer & Renick LLP 128 North Fair Oaks Avenue, Suite 204 Pasadena, CA 91103−3645 626−585−9600 Fax: 626−577−7079

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 4 of 106

Email: rrr@hadsellstormer.com ATTORNEY TO BE NOTICED

Sarah T Grossman−Swenson Davis Cowell & Bowe LLP 595 Market Street Suite 800 San Francisco, CA 94105 415−597−7200 Fax: 415−597−7201 Email: sgs@dcbsf.com ATTORNEY TO BE NOTICED

Shauna Iris Marshall Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 415−565−4685 TERMINATED: 04/11/2013 ATTORNEY TO BE NOTICED

Sheila Yvette Thomas Law Offices of Sheila Thomas 5260 Proctor Avenue Oakland, CA 94618 510−339−3739 Email: sheilayt@sbcglobal.net ATTORNEY TO BE NOTICED

Stephen Tinkler Tinkler & Bennett 309 Johnson Street Santa Fe, NM 87501 505−986−0269 ATTORNEY TO BE NOTICED

Steve Stemerman McCracken, Stemerman & Holsberry, LLP 595 Market Street, Suite 800 San Francisco, CA 94105 415−597−7200 Fax: 415−597−7201 Email: stem@msh.law ATTORNEY TO BE NOTICED

Plaintiff Patricia Surgeson

represented by Brad Seligman (See above for address) TERMINATED: 01/04/2013 LEAD ATTORNEY

Anne Kendrick Richardson (See above for address) TERMINATED: 09/19/2014 ATTORNEY TO BE NOTICED

Arcelia Leticia Hurtado (See above for address) TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED

Charles V. Firth (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 5 of 106
Christine E. Webber (See above for address) ATTORNEY TO BE NOTICED
Cornelia Dai (See above for address) ATTORNEY TO BE NOTICED
Debra Lynn Gardner (See above for address) TERMINATED: 04/11/2013 ATTORNEY TO BE NOTICED
Debra A. Smith (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED
Elizabeth A. Lawrence (See above for address) ATTORNEY TO BE NOTICED
Irma Herrera (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED
Jennifer Abby Reisch (See above for address) ATTORNEY TO BE NOTICED
Jenny Rae Yang (See above for address) TERMINATED: 05/09/2013 ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED
Joseph Marc Sellers (See above for address) ATTORNEY TO BE NOTICED
Merit Bennett (See above for address) ATTORNEY TO BE NOTICED
Michael Victor Caesar (See above for address) TERMINATED: 11/14/2013 ATTORNEY TO BE NOTICED
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
Peter Romer−Friedman (See above for address) TERMINATED: 05/07/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 6 of 106

Randy R. Renick (See above for address) ATTORNEY TO BE NOTICED

Sarah T Grossman−Swenson (See above for address) ATTORNEY TO BE NOTICED

Shauna Iris Marshall (See above for address) TERMINATED: 04/11/2013 ATTORNEY TO BE NOTICED

Sheila Yvette Thomas (See above for address) ATTORNEY TO BE NOTICED

Stephen Tinkler (See above for address) ATTORNEY TO BE NOTICED

Steve Stemerman (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Edith Arana

represented by Brad Seligman (See above for address) TERMINATED: 01/04/2013 LEAD ATTORNEY

Elizabeth A. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne Kendrick Richardson (See above for address) TERMINATED: 09/19/2014 ATTORNEY TO BE NOTICED

Arcelia Leticia Hurtado (See above for address) TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED

Charles V. Firth (See above for address) ATTORNEY TO BE NOTICED

Christine E. Webber Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue West Tower, Suite 500 Washington, DC 2005−3964 202−408−4600 Fax: 202−408−4699 Email: cwebber@cohenmilstein.com ATTORNEY TO BE NOTICED

Cornelia Dai (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 7 of 106

Debra A. Smith (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED

Irma Herrera (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED

Jennifer Abby Reisch (See above for address) ATTORNEY TO BE NOTICED

Jenny Rae Yang (See above for address) TERMINATED: 05/09/2013 ATTORNEY TO BE NOTICED

Jocelyn Dion Larkin (See above for address) ATTORNEY TO BE NOTICED

Joseph Marc Sellers (See above for address) ATTORNEY TO BE NOTICED

Michael Victor Caesar (See above for address) TERMINATED: 11/14/2013 ATTORNEY TO BE NOTICED

Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED

Noreen A. Farrell (See above for address) ATTORNEY TO BE NOTICED

Peter Romer−Friedman (See above for address) TERMINATED: 05/07/2015 PRO HAC VICE ATTORNEY TO BE NOTICED

Randy R. Renick (See above for address) ATTORNEY TO BE NOTICED

Sarah T Grossman−Swenson (See above for address) ATTORNEY TO BE NOTICED

Sheila Yvette Thomas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Karen Williamson TERMINATED: 10/27/2011

represented by Brad Seligman (See above for address) TERMINATED: 01/04/2013 LEAD ATTORNEY

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 8 of 106

Arcelia Leticia Hurtado (See above for address) TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED

Charles V. Firth (See above for address) ATTORNEY TO BE NOTICED

Debra A. Smith (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED

Elizabeth A. Lawrence (See above for address) ATTORNEY TO BE NOTICED

Irma Herrera (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED

Jenny Rae Yang (See above for address) TERMINATED: 05/09/2013 ATTORNEY TO BE NOTICED

Jocelyn Dion Larkin (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED

Joseph Marc Sellers (See above for address) ATTORNEY TO BE NOTICED

Sheila Yvette Thomas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Deborah Gunter

represented by Brad Seligman (See above for address) TERMINATED: 01/04/2013 LEAD ATTORNEY

Debra A. Smith (See above for address) TERMINATED: 08/05/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth A. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne Kendrick Richardson (See above for address) TERMINATED: 09/19/2014 ATTORNEY TO BE NOTICED

Arcelia Leticia Hurtado

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 9 of 106
(See above for address) TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED
Charles V. Firth (See above for address) ATTORNEY TO BE NOTICED
Christine E. Webber (See above for address) ATTORNEY TO BE NOTICED
Cornelia Dai (See above for address) ATTORNEY TO BE NOTICED
Irma Herrera (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED
Jennifer Abby Reisch (See above for address) ATTORNEY TO BE NOTICED
Jenny Rae Yang (See above for address) TERMINATED: 05/09/2013 ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin (See above for address) TERMINATED: 01/04/2013 ATTORNEY TO BE NOTICED
Joseph Marc Sellers (See above for address) ATTORNEY TO BE NOTICED
Michael Victor Caesar (See above for address) TERMINATED: 11/14/2013 ATTORNEY TO BE NOTICED
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
Noreen A. Farrell (See above for address) ATTORNEY TO BE NOTICED
Peter Romer−Friedman (See above for address) TERMINATED: 05/07/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Randy R. Renick (See above for address) ATTORNEY TO BE NOTICED
Sarah T Grossman−Swenson (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 10 of 106

Plaintiff Christine Kwapnoski

Sheila Yvette Thomas (See above for address) ATTORNEY TO BE NOTICED
represented by Brad Seligman (See above for address) TERMINATED: 01/04/2013 LEAD ATTORNEY
Elizabeth A. Lawrence (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Kendrick Richardson (See above for address) TERMINATED: 09/19/2014 ATTORNEY TO BE NOTICED
Arcelia Leticia Hurtado (See above for address) TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED
Charles V. Firth (See above for address) ATTORNEY TO BE NOTICED
Christine E. Webber (See above for address) ATTORNEY TO BE NOTICED
Cornelia Dai (See above for address) ATTORNEY TO BE NOTICED
Debra A. Smith (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED
Irma Herrera (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED
Jennifer Abby Reisch (See above for address) ATTORNEY TO BE NOTICED
Jenny Rae Yang (See above for address) TERMINATED: 05/09/2013 ATTORNEY TO BE NOTICED
Jocelyn Dion Larkin (See above for address) ATTORNEY TO BE NOTICED
Joseph Marc Sellers (See above for address) ATTORNEY TO BE NOTICED

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 11 of 106

Plaintiff
Cleo Page TERMINATED: 10/27/2011

Michael Victor Caesar (See above for address) TERMINATED: 11/14/2013 ATTORNEY TO BE NOTICED
Michelle Anne Caiola (See above for address) ATTORNEY TO BE NOTICED
Noreen A. Farrell (See above for address) ATTORNEY TO BE NOTICED
Peter Romer−Friedman (See above for address) TERMINATED: 05/07/2015 PRO HAC VICE ATTORNEY TO BE NOTICED
Randy R. Renick (See above for address) ATTORNEY TO BE NOTICED
Sarah T Grossman−Swenson (See above for address) ATTORNEY TO BE NOTICED
Sheila Yvette Thomas (See above for address) ATTORNEY TO BE NOTICED
represented by Cleo Page 4203 E. 85th St. Tulsa, OK 74137 PRO SE
Brad Seligman (See above for address) TERMINATED: 01/04/2013 LEAD ATTORNEY
Arcelia Leticia Hurtado (See above for address) TERMINATED: 10/25/2011 ATTORNEY TO BE NOTICED
Charles V. Firth (See above for address) TERMINATED: 10/25/2011 ATTORNEY TO BE NOTICED
Debra A. Smith (See above for address) TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED
Elizabeth A. Lawrence (See above for address) ATTORNEY TO BE NOTICED
Irma Herrera (See above for address)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 12 of 106

TERMINATED: 08/05/2011 ATTORNEY TO BE NOTICED

Jenny Rae Yang (See above for address) TERMINATED: 10/25/2011 ATTORNEY TO BE NOTICED

Jocelyn Dion Larkin (See above for address) ATTORNEY TO BE NOTICED

Joseph Marc Sellers (See above for address) TERMINATED: 10/25/2011 ATTORNEY TO BE NOTICED

Sheila Yvette Thomas (See above for address) TERMINATED: 10/25/2011 ATTORNEY TO BE NOTICED

Plaintiff
M.J. Furman TERMINATED: 10/27/2011

represented by Arcelia Leticia Hurtado (See above for address) TERMINATED: 10/22/2012 ATTORNEY TO BE NOTICED

Elizabeth A. Lawrence (See above for address) ATTORNEY TO BE NOTICED

Jenny Rae Yang (See above for address) TERMINATED: 05/09/2013 ATTORNEY TO BE NOTICED

Jocelyn Dion Larkin Impact Fund 125 University Avenue Suite 102 Berkeley, CA 94710 510−845−3473 x306 Fax: 510−845−3654 Email: jlarkin@impactfund.org ATTORNEY TO BE NOTICED

Mark Cotton Molumphy Cotchett, Pitre & McCarthy LLP 840 Malcolm Road Suite 200 Burlingame, Ca 94010 (650)697−6000 Fax: 650−697−0577 Email: mmolumphy@cpmlegal.com ATTORNEY TO BE NOTICED

V. Defendant Wal−Mart Stores, Inc.

represented by Jaime Dodge Byrnes Gibson Dunn & Crutcher 555 Mission St, Ste 3000

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 13 of 106
San Francisco, CA 94105−2933 415−393−8234 Email: jbyrnes@gibsondunn.com TERMINATED: 07/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy L. Abell Paul Hastings LLP 515 South Flower Street, 25th Floor Los Angeles, CA 90071−2228 (213) 683−6162 Fax: (213) 627−0705 Email: nancyabell@paulhastings.com TERMINATED: 07/25/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Barbara L. Johnson Paul Hastinings Janofsky & Walker LLP 1299 Pennsylvania Avenue NW, 10th Floor Washington, DC 20004 TERMINATED: 07/25/2011 ATTORNEY TO BE NOTICED
Catherine A. Conway Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Suite 4600 Los Angeles, CA 90071−3197 213−229−7822 Fax: 213−229−7520 Email: cconway@gibsondunn.com ATTORNEY TO BE NOTICED
Frederick Brown Gibson Dunn & Crutcher LLP 555 Mission Street Suite 3000 San Francisco, CA 94105 415−393−8204 Email: fbrown@gibsondunn.com ATTORNEY TO BE NOTICED
Jesse A. Cripps , Jr. Gibson Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071−3197 (213) 229−7000 Fax: (213) 229−7520 Email: jcripps@gibsondunn.com ATTORNEY TO BE NOTICED
Joseph Marc Sellers Cohen Milstein Sellers & Toll PLLC West Tower, Suite 500 1100 New York Avenue Washington, DC 20005−3964 202−408−4600 Fax: 202−408−4699 Email: jsellers@cohenmilstein.com ATTORNEY TO BE NOTICED
Karl G. Nelson

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 14 of 106
2100 McKinney Ave. Ste. 1100 Dallas, TX 75201 214−698−3203 Email: knelson@gibsondunn.com PRO HAC VICE ATTORNEY TO BE NOTICED
Katherine C. Huibonhoa Curley, Hurtgen & Johnsrud LLP 4400 Bohannon Drive, Suite 230 Menlo Park, CA 94025 650−600−5312 Fax: 650−323−1002 Email: khuibonhoa@chjllp.com TERMINATED: 07/25/2011 ATTORNEY TO BE NOTICED
Mark A. Perry Gibson Dunn & Crutcher LLP 1050 Connecticut Ave, N.W., Ste 900 Washington, DC 20036 202/887−3621 Email: mperry@gibsondunn.com ATTORNEY TO BE NOTICED
Michele Leigh Maryott Gibson Dunn & Crutcher LLP 3161 Michelson Drive Irvine, CA 92612 (949) 451−3945 Fax: (949) 475−4668 Email: mmaryott@gibsondunn.com ATTORNEY TO BE NOTICED
Neal D. Mollen , Paul Hastings LLP 875 15th Street NW Washington, DC 20005 202−551−1738 Fax: Email: nealmollen@paulhastings.com TERMINATED: 07/25/2011 ATTORNEY TO BE NOTICED
Rachel S. Brass Gibson Dunn & Crutcher LLP 555 Mission St, Ste 3000 San Francisco, CA 94105−2933 (415) 393−8200 Email: rbrass@gibsondunn.com ATTORNEY TO BE NOTICED
Theane Evangelis Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229−7726 Fax: (213) 229−7520 Email: tevangelis@gibsondunn.com ATTORNEY TO BE NOTICED
Theodore J. Boutrous , Jr. Gibson Dunn & Crutcher LLP 333 South Grand Avenue

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 15 of 106

Los Angeles, CA 90071−3197 213−229−7804 Email: tboutrous@gibsondunn.com ATTORNEY TO BE NOTICED

Miscellaneous Diana Alexander−Jones

represented by Todd Michael Schneider Schneider Wallace Cottrell Konecky Wotkyns LLP 2000 Powell Street, Suite 1400 Emeryville, CA 94608 415−421−7100 Fax: 415−421−7105 Email: tschneider@schneiderwallace.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/08/2001 06/08/2001 06/19/2001
06/20/2001 06/20/2001 07/02/2001
07/02/2001
07/03/2001 07/03/2001 07/06/2001
07/12/2001
07/17/2001
08/03/2001
08/03/2001

# Docket Text
1 COMPLAINT ; summons issued against Wal−Mart Stores, Inc. (Filing fee $150.00 receipt number 3323026). Filed by pro se Betty Dukes. (slh, ) (Entered: 06/11/2001)
2 ADR SCHEDULING ORDER: Case Management Statement due by 10/2/2001. Case Management Conference set for 10/9/2001 at 02:00 PM. (slh) (Entered: 06/11/2001)
3 FIRST AMENDED COMPLAINT against Wal−Mart Stores, Inc. Filed by Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson, Betty Dukes. (slh) (Entered: 06/20/2001)
4 Summons Returned Unexecuted as to defendant. (slh) (Entered: 06/21/2001)
First Amended Summons Issued as to Wal−Mart Stores, Inc. (slh) (Entered: 06/21/2001)
5 MOTION for Pro Hac Vice admission of attorney Merit Bennett filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (slh) (Entered: 07/06/2001)
6 MOTION for Pro Hac Vice admission of attorney Stephen Tinkler filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (slh) (Entered: 07/06/2001)
7 ORDER by Judge Martin J. Jenkins GRANTING plaintiff's Motion for Pro Hac Vice admission of attorney Merit Bennett 5 (slh) (Entered: 07/06/2001)
8 ORDER by Judge Martin J. Jenkins GRANTING plaintiff's Motion for Pro Hac Vice admission of attorney Stephen Tinkler 6 (slh) (Entered: 07/06/2001)
9 Certificate of Interested Entities or Persons and ADDENDUM to First Amended Complaint filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (slh, ) (Entered: 07/11/2001)
10 STIPULATION AND ORDER by Judge Martin J. Jenkins that the time of defendant Wal−Mart Stores, Inc. to answer, move or otherwise plead in response to the first amended complaint shall be extended 30 days from 7/11/01 to 8/10/01.(tn) (Entered: 07/23/2001)
11 CERTIFICATE OF SERVICE by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson re 9 Addendum to First Amended Complaint. (slh, ) (Entered: 07/26/2001)
12 MOTION for Pro Hac Vice admission of attorney Deborah J. Vagins filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (slh, ) (Entered: 08/06/2001)
13 MOTION for Pro Hac Vice admission of attorney Joseph M. Sellers filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 16 of 106

08/07/2001 08/07/2001 08/10/2001
08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/10/2001 08/15/2001
08/17/2001 09/04/2001 09/04/2001
09/04/2001
09/12/2001 10/02/2001
10/03/2001

Surgeson. (slh, ) (Entered: 08/06/2001)
14 ORDER by Judge Martin J. Jenkins GRANTING plaintiff'sMotion for Pro Hac Vice admission of attorney Deborah J. Vagins 12 (slh) (Entered: 08/10/2001)
15 ORDER by Judge Martin J. Jenkins GRANTING plaintiff's Motion for Pro Hac Vice admission of attorney Joseph M. Sellers 13 (slh) (Entered: 08/10/2001)
16 MOTION to Dismiss, or in the alternative, Motion to Transfer Case with Memorandum of Points and Authorities filed by Wal−Mart Stores, Inc.. Motion Hearing set for 9/25/2001 09:30 AM. (slh) (Entered: 08/13/2001)
17 DECLARATION of Catherine M. Dacre in Support Motion to Dismiss 16 filed by Wal−Mart Stores, Inc.. (Related document(s) 16 ) (slh) (Entered: 08/13/2001)
18 DECLARATION of Darryl D. Duncan in Support Motion of Dismiss 16 filed by Wal−Mart Stores, Inc.. (Related document(s) 16 ) (slh) (Entered: 08/13/2001)
19 DECLARATION of Allison d. Garrett in Support Motion to Dismiss 16 filed by Wal−Mart Stores, Inc.. (Related document(s) 16 ) (slh) (Entered: 08/13/2001)
20 DECLARATION James T. Phelps Jr. in Support of Motion to Dismiss 16 filed by Wal−Mart Stores, Inc.. (Related document(s) 16 ) (slh) (Entered: 08/13/2001)
21 DECLARATION of Dawn D. Lieck in Support of Motion to Dimsiss 16 filed by Wal−Mart Stores, Inc.. (Related document(s) 16 ) (slh) (Entered: 08/13/2001)
22 DECLARATION of Paul W. Turner in Support of Motion to Dismiss 16 filed by Wal−Mart Stores, Inc.. (Related document(s) 16 ) (slh) (Entered: 08/13/2001)
23 Certificate of Interested Entities or Persons by Wal−Mart Stores, Inc.. (slh, ) (Entered: 08/13/2001)
Received Order re 16 Motion to Dismiss (version 1) submitted by Wal−Mart Stores, Inc.. (slh, ) (Entered: 08/13/2001)
Received Order re 16 Motion of Dismiss (version 2) submitted by Wal−Mart Stores, Inc.. (slh, ) (Entered: 08/13/2001)
24 CERTIFICATE OF SERVICE by Wal−Mart Stores, Inc. re 16 , 23 , 17 , 18 , 19 , 20 , 21 , 22 (slh, ) (Entered: 08/13/2001)
25 MOTION for Pro Hac Vice admission of attorney Charles E. Tompkins filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (slh, ) (Entered: 08/21/2001)
26 ORDER by Judge Martin J. Jenkins GRANTING plaintiffs' Motion for Pro Hac Vice admission of attorney Charles Tompkins 25 . (slh) (Entered: 08/21/2001)
27 ASSOCIATION of Counsel Shauna Marshall for plaintiffs. (slh, ) (Entered: 09/07/2001)
28 Memorandum in Opposition re 16 defendant's Motion to Dismiss filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (slh, ) (Entered: 09/07/2001)
29 DECLARATION of Brad Seligma in Opposition to 16 Motion to Dismiss filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (Related document(s) 16 ) (slh) (Entered: 09/07/2001)
30 Reply to Opposition re 16 Motion to Dismiss filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 09/14/2001)
31 MINUTE ENTRY: Motion Hearing held on 10/2/2001 before Judge Jenkins. Defendant's Motion to Dismiss or Transfer 16 is submitted. Court to issue Order. (Court Reporter Joan Columbini.) (slh) (Entered: 10/04/2001)
32 STIPULATION AND ORDER by Judge Martin J. Jenkins: Case Management Conference reset for 10/30/2001 at 02:00 PM. (slh) (Entered: 10/09/2001)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 17 of 106

10/23/2001 10/23/2001 10/25/2001 12/03/2001
12/03/2001 12/12/2001 12/18/2001 12/18/2001
12/26/2001 01/03/2002 01/03/2002 01/04/2002 01/04/2002 01/04/2002 01/31/2002 02/26/2002 03/06/2002
04/15/2002 04/17/2002

33 CASE MANAGEMENT STATEMENT filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson. (slh, ) (Entered: 10/24/2001)
34 JOINT CASE MANAGEMENT STATEMENT filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson, Wal−Mart Stores, Inc.. (slh, ) (Entered: 10/24/2001)
35 STIPULATION AND ORDER by Judge Martin J. Jenkins regarding preservation of documents. (slh) (Entered: 10/31/2001)
36 ORDER by Judge Martin J. Jenkins GRANTING IN PART and DENYING IN PART defendant's Motion to Dismiss or alternatively to Transfer Case 16 ; the Court elects to dismiss the improperly venued plaintiffs pursuant to Rule 21, allowing the named California class representatives to litigate this action in this forum; Status Conference set for 12/17/01 at 1:30 PM; Joint status conference statement due not later than 5 days prior to conference. (slh) (Entered: 12/04/2001)
Set/Reset Hearings: Status Conference set for 12/17/2001 01:30 PM. (slh) (Entered: 12/04/2001)
37 JOINT CASE MANAGEMENT STATEMENT filed by Betty Dukes, Micki Earwood, Kimberly Miller, Stephanie Odle, Sandra Stevenson, Patricia Surgeson, Wal−Mart Stores, Inc.. (slh, ) (Entered: 12/13/2001)
38 MOTION for Pro Hac Vice admission of attorney Lawrence C. DiNardo (fee pd) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 12/26/2001)
39 MINUTE ENTRY: Case Management Conference held on 12/17/2001 before Judge Jenkins; Class certification motion will be heard on 3/25/03 at 9:30 AM; Further Status Conferences set for 3/5/2002 02:00 PM, 5/7/02 at 2:00 PM, and 8/6/02 at 2:00 PM; updated statements should be filed prior to each conference.(Court Reporter Sahar Demos.) (slh) (Entered: 12/26/2001)
40 SECOND AMENDED COMPLAINT against Wal−Mart Stores, Inc. Filed by Betty Dukes, Patricia Surgeson. (slh) (Entered: 01/09/2002)
41 CASE MANAGEMENT SCHEDULING ORDER by Judge Martin J. Jenkins.(slh) (Entered: 01/10/2002)
42 ORDER by Judge Martin J. Jenkins granting certification of interlocutory appeal re the Order granting in part and denying in part defendant's Motion to Dismiss 36 pursuant to 29 U.S.C. 1292(b). (slh) (Entered: 01/10/2002)
43 MOTION for Pro Hac Vice admission of Alison B. Marshall filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 01/15/2002)
44 ORDER by Judge Martin J. Jenkins GRANTING defendant's Motion for Pro Hac Vice admission of attorney Alison B. Marshall 43 . (slh) (Entered: 01/15/2002)
45 ORDER by Judge Martin J. Jenkins GRANTING defendant's Motion for Pro Hac Vice admission of attorney Lawrence C. DiNardo 38 . (slh) (Entered: 01/15/2002)
46 ANSWER to Second Amended Complaint by Wal−Mart Stores, Inc. (slh) (Entered: 02/01/2002)
47 STATUS REPORT by Betty Dukes, Patricia Surgeson, Wal−Mart Stores, Inc.. (slh, ) (Entered: 02/28/2002)
48 Minute Entry: Further Status Conference held on 3/5/2002 before Judge Martin J. Jenkins. Discovery ongoing with no problems. Continued for further Status Conference set for 5/7/2002 02:00 PM. (Court Reporter Debra Pas.) (gba) (Entered: 03/11/2002)
49 ORDER by Judge Martin J. Jenkins for substitution of attorney; Attorney Janine Simerly, Catherine M. Dacre, and Gilmore F. Diekmann terminated as counsel for defendant. (slh) (Entered: 04/16/2002)
50 SUBSTITUTION OF ATTORNEY by Judge Martin J. Jenkins adding Attorneys Katherine A. Alberts and John W. Edwards for Wal−Mart Stores, Inc. (slh) (Entered:

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 18 of 106

04/26/2002 04/26/2002 04/26/2002 04/30/2002 05/08/2002
05/14/2002 05/14/2002 05/21/2002 05/21/2002 05/21/2002 05/28/2002 05/28/2002 05/28/2002 05/28/2002 06/17/2002 06/25/2002
07/08/2002 07/16/2002

04/19/2002)
51 MOTION for Leave to File Third Amended Complaint filed by Betty Dukes, Patricia Surgeson. Motion Hearing set for 6/11/2002 09:30 AM. (slh, ) (Entered: 04/29/2002)
52 DECLARATION in Support re 51 Motion to Leave to File Third Amended Complaint filed by Betty Dukes, Patricia Surgeson. (Related document(s) 51 ) (slh, ) (Entered: 04/29/2002)
Received Document : Third Amended Complaint submitted by Betty Dukes, Patricia Surgeson. (slh, ) (Entered: 05/02/2002)
53 STATUS REPORT (JOINT) by Betty Dukes, Patricia Surgeson, Wal−Mart Stores, Inc.. (slh, ) (Entered: 05/01/2002)
54 Minute Entry: Telephonic Status Conference held on 5/7/2002 before Judge Jenkins; Discovery is ongoing; Counsel anticipate filing a motion re: protective order on 5/14/02; hearing will be set for 6/11/02 at 9:30 AM; opposition due 5/21/02; reply due 5/24/02; the status conference date of 8/6/02 is reset to 7/30/02 upon stipulation of the parties. (Court Reporter − Kathy Wyatt.) (slh) (Entered: 05/09/2002)
55 MOTION for Protective Order re: document subpoenas to absent class members filed by Betty Dukes, Patricia Surgeson. Motion Hearing set for 6/11/2002 09:30 AM. (slh, ) (Entered: 05/14/2002)
56 DECLARATION in Support re 55 Motion for Protective Order (Brad Seligman) filed by Betty Dukes, Patricia Surgeson. (Related document(s) 55 ) (slh, ) (Entered: 05/14/2002)
57 Memorandum in Opposition re 55 plaintiff's Motion for Protective Order filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 05/22/2002)
58 Memorandum in Opposition re 51 plaintiff's Motion for Leave to File Third Amended Complaint filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 05/22/2002)
59 DECLARATION in Opposition re 55 plaintiff's Motion for Protective Order (Steven T. Catlett) filed by Wal−Mart Stores, Inc.. (Related document(s) 55 ) (slh, ) (Entered: 05/22/2002)
60 Reply Memorandum to Motion re 51 Motion For Leave to File Third Amended Complaint filed by Betty Dukes, Patricia Surgeson. (slh, ) (Entered: 05/29/2002)
61 Reply Memorandum to Motion re 55 Motion for Protective Order filed by Betty Dukes, Patricia Surgeson. (slh, ) (Entered: 05/29/2002)
62 DECLARATION in Support re 55 Motion for Protective Order (Brad Seligman) filed by Betty Dukes, Patricia Surgeson. (Related document(s) 55 ) (slh, ) (Entered: 05/29/2002)
63 DECLARATION in Support re 55 Motion for Protective Order (Debra Smith) filed by Betty Dukes, Patricia Surgeson. (Related document(s) 55 ) (slh, ) (Entered: 05/29/2002)
64 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d re 51 Motion for Leave to File Third Amended Complaint filed by Betty Dukes, Patricia Surgeson. (slh, ) (Entered: 06/18/2002)
65 Minute Entry: Motion Hearing held on 6/25/2002 before Judge Jenkins; that plaintiff's motion for leave to file third amended complaint 51 is submitted; that plaintiff's motion for protective order 55 is submitted; Status Conference set for 7/23/2002 02:00 PM; Court to issue Order. (Court Reporter − Joan Columbini.) (slh) (Entered: 06/26/2002)
66 TRANSCRIPT for dates 10/2/01 (C/R: Joan Marie Columbini). (slh, ) (Entered: 07/12/2002)
67 STATUS REPORT by Betty Dukes, Patricia Surgeson, Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/17/2002)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 19 of 106

07/17/2002 07/19/2002 07/19/2002
07/19/2002 07/19/2002 07/22/2002 07/25/2002 08/08/2002 08/13/2002
08/13/2002 08/19/2002 09/05/2002
09/05/2002 09/05/2002 09/09/2002 09/12/2002 09/12/2002
09/18/2002 10/04/2002 10/07/2002 10/10/2002
10/10/2002

68 MOTION for Pro Hac Vice admission of attorney Julie Goldsmith filed by Betty Dukes, Patricia Surgeson. (slh, ) (Entered: 07/17/2002)
69 MOTION for Leave to File Supplemental Status Report filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/23/2002)
70 DECLARATION in Support re 69 Motion for Leave to File Supplemental Status Report (Steven T. Catlett) filed by Wal−Mart Stores, Inc.. (Related document(s) 69 ) (slh, ) (Entered: 07/23/2002)
71 CERTIFICATE OF SERVICE by Wal−Mart Stores, Inc. re 69 , 70 (slh, ) (Entered: 07/23/2002)
72 CLERK'S NOTICE: Case Management Conference reset for 8/13/2002 at 02:00 PM. (slh) (Entered: 07/23/2002)
73 ORDER by Judge Martin J. Jenkins GRANTING plaintiff's Motion for Pro Hac Vice admission of attorney Julie Goldsmith 68 . (slh) (Entered: 07/24/2002)
74 Mail Returned from Post Office addressed to Merit Bennett. (slh, ) (Entered: 07/29/2002)
75 MOTION for Pro Hac Vice admission of attorney Christine E. Webber (fee status pd) filed by Betty Dukes, Patricia Surgeson. (slh, ) (Entered: 08/15/2002)
76 Minute Entry: Further Case Management Conference held on 8/13/2002 before Judge Jenkins. Case continued to 9/4/02 at 2:30 PM for discovery conference call/status conference. (Court Reporter − NOT reported.) (slh) (Entered: 08/19/2002)
Set/Reset Hearings: Discovery Conference call/Status Conference set for 9/4/2002 02:30 PM. (slh) (Entered: 08/19/2002)
77 ORDER by Judge Martin J. Jenkins GRANTING plaintiff's Motion for Pro Hac Vice admission of attorney Christine E. Webber 75 . (slh) (Entered: 08/23/2002)
78 Minute Entry: Discovery Conference Telephone Call/Status Conference held on 9/4/2002 before Judge Jenkins; Status Conference set for 9/27/2002 02:30 PM. (Court Reporter − Debbie Pas.) (slh) (Entered: 09/06/2002)
79 ORDER OF RECUSAL by Magistrate Judge Elizabeth D. Laporte. (slh) (Entered: 09/06/2002)
80 STIPULATION AND ORDER by Judge Martin J. Jenkins re: discovery dispute; see Order for specifcs. (slh) (Entered: 09/06/2002)
81 ORDER by Judge Martin J. Jenkins GRANTING plaintiff's Motion for Leave to File Third Amended Complaint 51 . (slh) (Entered: 09/10/2002)
CASE REFERRED to Magistrate Judge for Discovery Edward M. Chen. (wh, ) (Entered: 09/12/2002)
82 AMENDED COMPLAINT (THIRD) against Wal−Mart Stores, Inc.. Filed by Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski, Cleo Page, Betty Dukes, Patricia Surgeson. (slh, ) (Entered: 09/13/2002)
83 NOTICE OF REFERENCE AND ORDER by Magistrate Judge Edward M. Chen re: discovery procedures. (slh) (Entered: 09/19/2002)
84 ORDER by Judge Martin J. Jenkins: Status Conference reset for 10/11/2002 03:00 PM. (slh) (Entered: 10/08/2002)
85 ORDER by Judge Martin J. Jenkins DENYING plaintiff's request to expand the deposition time. (slh) (Entered: 10/08/2002)
86 ORDER Defendant's request that the Court certify its 9/09/2002 Order for interlocutory appeal is DENIED. Signed by Judge Martin J. Jenkins on 10/10/02. (vlh, ) (Entered: 10/16/2002)
88 Letter dated 10/3/02 from Brad Seligman in oppositon to defendant's request that the Court certify for interlocutory appeal its 9/9/02 Order. (slh, ) (Entered: 10/17/2002)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 20 of 106

10/11/2002
10/18/2002 11/25/2002 11/26/2002
12/02/2002 12/02/2002 12/02/2002 12/04/2002 03/07/2003 03/28/2003
04/09/2003 04/28/2003
04/28/2003
04/28/2003
04/28/2003
04/28/2003
04/28/2003

87 Minute Entry: Status Conference held on 10/11/2002 before Judge Martin J. Jenkins. Status Conference set for 10/18/2002 12:00 PM by telephone. Plaintiff to fax letter regarding production issues by 10/18/02 10:00AM (Court Reporter Leo Mankiewicz.) (vlh, ) (Entered: 10/16/2002)
89 Minute Entry: Status Conference held on 10/18/2002 before Judge Jenkins. Further Status Conference set for 7/25/2003 10:00 AM. (Court Reporter − Debra Pas.) (slh) (Entered: 10/21/2002)
90 ANSWER to Amended Complaint (Third) by Wal−Mart Stores, Inc.. (slh, ) (Entered: 11/25/2002)
91 STIPULATION AND ORDER by Judge Martin J. Jenkins regarding discovery and class certification deadlines; plaintiff's class certification motion shall be filed by 4/28/03; defendant's opposition due 6/12/03; plaintiff's reply due 7/3/03; the cass certification hearing shall be held on 7/25/03 at 10:00; defendant's Answer to plaintiffs' Third Amended Complaint due 11/2/02. (slh) (Entered: 11/27/2002)
92 NOTICE of Appearance by Wal−Mart Stores, Inc.. (slh, ) (Entered: 12/02/2002)
93 MOTION for Pro Hac Vice admission of attorney Barbara L. Johnson (fee status pd) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 12/02/2002)
94 ORDER by Judge Martin J. Jenkins GRANTING defendant's Motion for Pro Hac Vice admission of attorney Barbara L. Johnson 93 . (slh) (Entered: 12/04/2002)
95 CERTIFICATE OF SERVICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson re: civil subpoenas (slh, ) (Entered: 12/04/2002)
96 STIPULATION AND ORDER by Judge Martin J. Jenkins re: discovery and class certification briefing. (slh) (Entered: 03/11/2003)
97 ORDER by Judge Martin J. Jenkins for withdrawal of counsel; attorneys Lawrence C. DiNardo, John W. Edwards, John L. Strauch, Katherine A. Alberts and Steven T. Catlett of Jones Day terminated as counsel for defendant Wal−Mart Stores. (slh) (Entered: 04/02/2003)
98 NOTICE re 97 Order by Wal−Mart Stores, Inc.. (slh, ) (Entered: 04/10/2003)
99 MOTION to Certify Class and Memorandum of Points and Authorities filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Motion Hearing set for 7/25/2003 10:00 AM. (slh, ) (slh, COURT STAFF). (Entered: 04/29/2003)
100 DECLARATION in Support re 99 Motion for Class Certification (Christine Webber) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
101 DECLARATION in Support re 99 Motion for Class Certification (Brad Seligman) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
102 DECLARATION in Support re 99 Motion for Class Certification (Jennifer Cynn) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
103 DECLARATION in Support re 99 Motion for Class Certification (Julie Goldsmith) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
104 DECLARATION in Support re 99 Motion for Class Certification (Marc Bendick, Jr. Ph.D) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 21 of 106

04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003

105 DECLARATION in Support re 99 Motion for Class Certification (Richard Drogin Ph.D) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
106 DECLARATION in Support re 99 Motion for Class Certification (William T. Bielby, Ph.D) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
107 DECLARATION in Support re 99 Motion for Class Certification (Sheila Acreee) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
108 DECLARATION in Support re 99 Motion for Class Certification (Donna Adair) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
109 DECLARATION in Support re 99 Motion for Class Certification (Gretchen Adams) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
110 DECLARATION in Support re 99 Motion for Class Certification (Wanda Akley) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
111 DECLARATION in Support re 99 Motion for Class Certification (Edith Arana) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
112 DECLARATION in Support re 99 Motion for Class Certification (Lori Arhangelsky) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
113 DECLARATION in Support re 99 Motion for Class Certification (Patricia Bebee) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
114 DECLARATION in Support re 99 Motion for Class Certification (Geanette Bell) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
115 DECLARATION in Support re 99 Motion for Class Certification (Sandra Berkowitz) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
116 DECLARATION in Support re 99 Motion for Class Certification (Joan Berry) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
117 DECLARATION in Support re 99 Motion for Class Certification (Paula Bird) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
118 DECLARATION in Support re 99 Motion for Class Certification (Lisa Boudreaux) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered:

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04/29/2003)
119 DECLARATION in Support re 99 Motion for Class Certification (Danette Brown) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
120 DECLARATION in Support re 99 Motion for Class Certification (Sue Brown) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
121 DECLARATION in Support re 99 Motion for Class Certification (Patricia Buckley) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
122 DECLARATION in Support re 99 Motion for Class Certification (Vivian Calimee) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
123 DECLARATION in Support re 99 Motion for Class Certification (Kenneth Christensen) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
124 DECLARATION in Support re 99 Motion for Class Certification (Thearsa Collier) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
125 DECLARATION in Support re 99 Motion for Class Certification (Jeanette Connaker) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
126 DECLARATION in Support re 99 Motion for Class Certification (Rita Coones) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
127 DECLARATION in Support re 99 Motion for Class Certification (Mary Crawford) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
128 DECLARATION in Support re 99 Motion for Class Certification (Trudy Crom) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
129 DECLARATION in Support re 99 Motion for Class Certification (Darlene Crowder) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
130 DECLARATION in Support re 99 Motion for Class Certification (Laurie Dewall) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
131 DECLARATION in Support re 99 Motion for Class Certification (Anna Dobbs) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)

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132 DECLARATION in Support re 99 Motion for Class Certification (Julie Donovan) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
133 DECLARATION in Support re 99 Motion for Class Certification (Betty Dukes) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
134 DECLARATION in Support re 99 Motion for Class Certification (Diane Durfey) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
135 DECLARATION in Support re 99 Motion for Class Certification (Micki Earwood) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
136 DECLARATION in Support re 99 Motion for Class Certification (Penny Elkins) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
137 DECLARATION in Support re 99 Motion for Class Certification (Shirley Ervine) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
138 DECLARATION in Support re 99 Motion for Class Certification (Gina Espinoza−Price) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
139 DECLARATION in Support re 99 Motion for Class Certification (Brenda Evans) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
140 DECLARATION in Support re 99 Motion for Class Certification (Dedra Farmer) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
141 DECLARATION in Support re 99 Motion for Class Certification (Jennifer Furtado) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
142 DECLARATION in Support re 99 Motion for Class Certification (Anita Galentine) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
143 DECLARATION in Support re 99 Motion for Class Certification (Catherine Gorba) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
144 DECLARATION in Support re 99 Motion for Class Certification (Earnestine Gordon) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
145 DECLARATION in Support re 99 Motion for Class Certification (Deborah Gunter) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered:

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04/29/2003)
146 DECLARATION in Support re 99 Motion for Class Certification (Sheila Hall) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
147 DECLARATION in Support re 99 Motion for Class Certification (Tammy Hall) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
148 DECLARATION in Support re 99 Motion for Class Certification (Rene Harkins) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
149 DECLARATION in Support re 99 Motion for Class Certification (Cecilia Harrison) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
150 DECLARATION in Support re 99 Motion for Class Certification (Teresa Hawkins) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
151 DECLARATION in Support re 99 Motion for Class Certification (Tina Herndon) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
152 DECLARATION in Support re 99 Motion for Class Certification (Susan Hitch) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
153 DECLARATION in Support re 99 Motion for Class Certification (Dawn Hittle) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
154 DECLARATION in Support re 99 Motion for Class Certification (Nancy Hom) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
155 DECLARATION in Support re 99 Motion for Class Certification (Angela Horton) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
156 DECLARATION in Support re 99 Motion for class Certification (Amy Houchins−Post) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
157 DECLARATION in Support re 99 Motion for Class Certification (Brenda Houle) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
158 DECLARATION in Support re 99 Motion for Class Certification (Melissa Howard) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)

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159 DECLARATION in Support re 99 Motion for Class Certification (Tammy Howard) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 04/29/2003)
160 DECLARATION in Support re 99 Motion for Class Certification (Frances Jackson) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
162 DECLARATION in Support re 99 Motion for Class Certification (Jennifer Johnson) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
163 DECLARATION in Support re 99 Motion for Class Certification (Katheryn Johnson) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
164 DECLARATION in Support re 99 Motion for Class Certification (Lucretia Johnson) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
165 DECLARATION in Support re 99 Motion for Class Certification (Laverne Jones) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
166 DECLARATION in Support re 99 Motion for Class Certification (Sheila Joyce) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
167 DECLARATION in Support re 99 Motion for Class Certification (Gayle Kellems) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
168 DECLARATION in Support re 99 Motion for Class Certification (Martha Kettle) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
169 DECLARATION in Support re 99 Motion for Class Certification (Christine Kwapnoski) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
170 DECLARATION in Support re 99 Motion for Class Certification (Jaime Lanois) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
171 DECLARATION in Support re 99 Motion for Class Certification (Darlene Leadingham) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
172 DECLARATION in Support re 99 Motion for Class Certification (Phyllis Lehman) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
173 DECLARATION in Support re 99 Motion for Class Certification (Van Le−Kohler) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered:

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05/01/2003)
174 DECLARATION in Support re 99 Motion for Class Certification (Lorrina Letterer) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
175 DECLARATION in Support re 99 Motion for Class Certification (Gail Lovejoy) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
176 DECLARATION in Support re 99 Motion for Class Certification (Kathleen MacDonald) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
177 DECLARATION in Support re 99 Motion for Class Certification (Barbara Mack) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
178 DECLARATION in Support re 99 Motion for Class Certification (Sandra Marshall) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
179 DECLARATION in Support re 99 Motion for Class Certification (Nancy Martin) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
180 DECLARATION in Support re 99 Motion for Class Certification (Irma Mathis) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
181 DECLARATION in Support re 99 Motion for Class Certification (Lori B. McCarthy) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
182 DECLARATION in Support re 99 Motion for Class Certification (Alix McKenna) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
183 DECLARATION in Support re 99 Motion for Class Certification (Kim McLamb) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
184 DECLARATION in Support re 99 Motion for Class Certification (Umi Jean Minor) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
185 DECLARATION in Support re 99 Motion for Class Certification (Michella Minton) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
186 DECLARATION in Support re 99 Motion for Class Certification ( filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
187 DECLARATION in Support re 99 Motion for Class Certification (Joyce Moody) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page,

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Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
188 DECLARATION in Support re 99 Motion for Class Certification (Denise Mott) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
189 DECLARATION in Support re 99 Motion for Class Certification (Stephanie Odle) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
190 DECLARATION in Support re 99 Motion for Class Certification (Cleo Page) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
191 DECLARATION in Support re 99 Motion for Class Certification (Carolyn Perkins) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
192 DECLARATION in Support re 99 Motion for Class Certification (Lori Pidich) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
193 DECLARATION in Support re 99 Motion for Class Certification (Sue McFarland) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
194 DECLARATION in Support re 99 Motion for Class Certification (Sandra Ratliff) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
195 DECLARATION in Support re 99 Motion for Class Certification (Donna Reed) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
196 DECLARATION in Support re 99 Motion for Class Certification (Claudia Renati) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
197 DECLARATION in Support re 99 Motion for Class Certification (Karla Rojas) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
198 DECLARATION in Support re 99 Motion for Class Certification (Kathleen Schmeida) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
199 DECLARATION in Support re 99 Motion for Class Certification (Ramona Scott) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
200 DECLARATION in Support re 99 Motion for Class Certification (Dawnia Self) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)

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201 DECLARATION in Support re 99 Motion for Class Certification (Susan Servatius) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
202 DECLARATION in Support re 99 Motion for Class Certification (Jody Shearer) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
203 DECLARATION in Support Motion for Class Certification (Barbara Steele) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 05/01/2003)
204 DECLARATION in Support re 99 Motion for Class Certification (Sandra Stevenson) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
205 DECLARATION in Support re 99 Motion for Class Certification (Anna Stumpf) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
206 DECLARATION in Support re 99 Motion for Class Certification (Patricia Surgeson) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
207 DECLARATION in Support re 99 Motion for Class Certification (Dawn Sweeny) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
208 DECLARATION in Support re 99 Motion for Class Certification (Andrea Tallent) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
209 DECLARATION in Support re 99 Motion for Class Certification (Sandra Thomas) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
210 DECLARATION in Support re 99 Motion for Class Certification (Vicki Thornton) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
211 DECLARATION in Support re 99 Motion for Class Certification (Melodie Underwood) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
212 DECLARATION in Support re 99 Motion for Class Certification (Dawn White) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
213 DECLARATION in Support re 99 Motion for Class Certification (Deanna Willard) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
214 DECLARATION in Support re 99 Motion for Class Certification (Jenny Williams) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 29 of 106

04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003 04/28/2003
05/05/2003 05/28/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

215 DECLARATION in Support re 99 Motion for Class Certification (Lorie Williams) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
216 DECLARATION in Support re 99 Motion for Class Certification (Karen Williamson) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
217 DECLARATION in Support re 99 Motion for Class Certification (Jan Wolsleger) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
218 DECLARATION in Support re 99 Motion for Class Certification (Wei Wu−Emmert) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
219 DECLARATION in Support re 99 Motion for Class Certification (Detrix Young) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
220 DECLARATION in Support re 99 Motion for Class Certification (Tamara Zumbrun) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
221 CERTIFICATE/PROOF OF SERVICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson re 138 , 111 , 217 , 190 , 139 , 112 , 218 , 191 , 164 , 113 , 219 , 192 , 165 , 220 , 193 , 166 , 140 , 141 , 114 , 142 , 115 , 194 , 167 , 143 , 116 , 195 , 168 , 196 , 169 , 170 , 171 , 144 , 117 , 172 , 145 , 118 , 197 , 173 , 146 , 119 , 198 , 199 , 174 , 147 , 120 , 175 , 148 , 121 , 200 , 176 , 149 , 122 , 201 , 123 , 202 , 203 , 204 , 150 , 177 , 205 , 124 , 151 , 178 , 206 , 125 , 152 , 179 , 126 , 153 , 99 , 207 , 180 , 208 , 100 , 127 , 154 , 181 , 209 , 101 , 128 , 155 , 182 , 210 , 102 , 129 , 156 , 183 , 103 , 104 , 105 , 211 , 130 , 106 , 157 , 184 , 212 , 131 , 158 , 185 , 213 , 132 , 159 , 186 , 133 , 107 , 108 , 214 , 109 , 160 , 187 , 215 , 134 , 161 , 188 , 216 , 135 , 162 , 189 , 136 , 163 , 110 , 137 (slh, ) (Entered: 05/01/2003)
222 NOTICE of Change of Address by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 05/09/2003)
161 DECLARATION in Support re 99 Motion for Class Certification (Joanne Jaso) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 05/01/2003)
223 Memorandum in Opposition re 99 plaintiff's Motion for Class Certification filed by Wal−Mart Stores, Inc.. (slh, ) (slh, COURT STAFF). (Entered: 06/16/2003)
224 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (David A. Scott) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/16/2003)
225 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (Wei Ming Bogardus) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/16/2003)
226 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (Joan G. Haworth) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/16/2003)
227 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (Joan G. Haworth − vol. 2) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, )

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 30 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

(Entered: 06/16/2003)
228 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (Joan G. Haworth − Appendix F−1) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/16/2003)
229 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (Joan G. Haworth − Appendix G−1) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/16/2003)
230 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (Charlyn Jarrells Porter) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/16/2003)
231 DECLARATION in Opposition re 99 plaintiff's Motion for Class Certification (Patricia M. Berry) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/16/2003)
232 MOTION to Strike Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of Plaintiff's Motion for Class Certification filed by Wal−Mart Stores, Inc.. Motion Hearing set for 7/25/2003 10:00 AM. (slh, ) (Entered: 06/16/2003)
233 DECLARATION in Support re 232 Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of Plaintiff's Motion for Class Certification 99 (Patricia M. Berry − volume 1) filed by Wal−Mart Stores, Inc.. (Related document(s) 232 ) (slh, ) (Entered: 06/16/2003)
234 DECLARATION in Support re 232 Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of Plaintiff's Motion for Class Certification 99 (Patricia M. Berry − volume 2) filed by Wal−Mart Stores, Inc.. (Related document(s) 232 ) (slh, ) (Entered: 06/16/2003)
235 DECLARATION in Support re 232 Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of Plaintiff's Motion for Class Certification 99 (Patrica M. Berry − volume 3) filed by Wal−Mart Stores, Inc.. (Related document(s) 232 ) (slh, ) (Entered: 06/16/2003)
236 DECLARATION in Support re 232 Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of Plaintiff's Motion for Class Certification 99 (Patricia M. Berry − volume 4) filed by Wal−Mart Stores, Inc.. (Related document(s) 232 ) (slh, ) (Entered: 06/16/2003)
237 Declaration of Steven R. Crumpler filed by Wal−Mart Stores, Inc. (slh) (Entered: 06/16/2003)
238 DECLARATION in Opposition /Rebuttal to declaration of designated class member Sheila Hall (Dennie Ashley) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
239 DECLARATION in Opposition /Rebuttal to declaration of designated class member Sandra Berkowitz ( Charles Ayala) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
240 DECLARATION in Opposition /Rebuttal to declaration of plaintiff Betty Dukes (Kenneth S. Cagle) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
241 DECLARATION in Opposition /Rebuttal to declaration of Brenda Evans (Robert Cathey) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
242 DECLARATION in Opposition /Rebuttal to declaration of designated class member Sheila Acree ( Frank Chaney) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
243 DECLARATION in Opposition /Rebuttal to declaration of designated class member Lori McCarthy (David Chmura) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 31 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

244 DECLARATION in Opposition /Rebuttal to declaration of named plaintiff Deborah Gunter (Douglas H. Clarke, Jr.) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
245 DECLARATION in Opposition /Rebuttal to declaration of designated class member Tamara Zumbrun (Patrick David Cochran) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
246 DECLARATION in Opposition /Rebuttal to declaration of designated class member Micki Earwood (Michael Harvey Fetrow) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
247 DECLARATION in Opposition /Rebuttal to declaration of designated class member Shirley Ervine (Thimothy Rombach) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
248 DECLARATION in Opposition /Rebuttal to declaration of designated class member Paula Bird (Garry Goldammer) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
249 DECLARATION in Opposition /Rebuttal to declaration of designated class member Sandra Berkowitz (Ilene Jacobs) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
250 DECLARATION in Opposition /Rebuttal to declaration of designated class member Katheryn Johnson (Jina Jordan) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
251 DECLARATION in Opposition /Rebuttal to declaration of named plaintiff Edith Arana (Varazat "John" Kocharian) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
252 DECLARATION in Opposition /Rebuttal to declaration of named plaintiff Cleo Page (Mathew Anthony Mayland) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
253 DECLARATION in Opposition /Rebuttal to declaration of designated class member Susan Hitch (Kent Duane McCoy) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
254 DECLARATION in Opposition /Rebuttal to declaration of plaintiff Rene Harkins (Elliott Nailen) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
255 DECLARATION in Opposition /Rebuttal to declaration of designated class member Earnestine Gordon (Marie Perkins) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
256 DECLARATION in Opposition /Rebuttal to declaration of designated class member Lucretia Johnson (Teresa Cae Price−Haagensen) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
257 DECLARATION in Opposition /Rebuttal to declaration of named plaintiff Patricia Surgeson (Marvin Raps) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
258 DECLARATION in Opposition /Rebuttal to declaration of Brenda Evans (Silvio Rodriguez) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
259 DECLARATION in Opposition /Rebuttal to declaration of designated class member Laverne Jones (Sammy Sappington) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
260 DECLARATION in Opposition /Rebuttal to declaration of designated class member Cecilia Harrison (Ron Smoot) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
261 DECLARATION in Opposition /Rebuttal to declaration of named plaintiff Betty Dukes (Shastina Wilkins) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)
262 DECLARATION in Opposition /Rebuttal to declaration of Brenda Evans (John Woodall) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/16/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 32 of 106

06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

263 MOTION to Strike declaration, opinion, and testimony of plaintiffs' expert William T. Bielby, Ph.D. filed by Wal−Mart Stores, Inc.. Motion Hearing set for 7/25/2003 10:00 AM. (slh, ) (Entered: 06/16/2003)
264 DECLARATION in Support re 263 Motion to Strike declaration, opinion, and testimony of plaintiffs' expert William T. Bielby, Ph.D. (Neal D. Mollen) filed by Wal−Mart Stores, Inc.. (Related document(s) 263 ) (slh, ) (Entered: 06/16/2003)
265 MOTION to Strike declaration of Marc Bendick, Jr., Ph.D. filed by Wal−Mart Stores, Inc.. Motion Hearing set for 7/25/2003 10:00 AM. (slh, ) (Entered: 06/16/2003)
266 DECLARATION in Support re 265 Motion to Strike declaration of Marc Bendick, Jr., Ph.D. (Joseph W. Deng) filed by Wal−Mart Stores, Inc.. (Related document(s) 265 ) (slh, ) (Entered: 06/16/2003)
267 DECLARATION in Support re 265 Motion to Strike declaration of Marc Bendick, Jr., Ph.D. (Don Swann) filed by Wal−Mart Stores, Inc.. (Related document(s) 265 ) (slh, ) (Entered: 06/16/2003)
268 DECLARATION in Support re 265 Motion to Strike declaration of Marc Bendick, Jr., Ph.D. (Joachim "Joe" Neckere) filed by Wal−Mart Stores, Inc.. (Related document(s) 265 ) (slh, ) (Entered: 06/16/2003)
269 DECLARATION in Support re 265 Motion to Strike declaration of Marc Bendick, Jr., Ph.D. (Ronald Edwards) filed by Wal−Mart Stores, Inc.. (Related document(s) 265 ) (slh, ) (Entered: 06/16/2003)
270 DECLARATION in Support by Salvador Aguilar filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
271 DECLARATION in Support by Michael Alexander filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
272 DECLARATION in Support by Charles R. Alvarez filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
273 DECLARATION in Support by Jennifer Amero filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
274 DECLARATION in Support by Cathy Anderson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
275 DECLARATION in Support by Steven Appleby filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
276 DECLARATION in Support by Victoria Asberry filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
277 DECLARATION in Support by Cory Asleson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
278 DECLARATION in Support by Phyllis Avato filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
279 DECLARATION in Support by Kevin Ayers filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
280 DECLARATION in Support by Sukhjinder Bajwa filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
281 DECLARATION in Support by Chris Ballay filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
282 DECLARATION in Support by Bryan Bannister filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
283 DECLARATION in Support by Stephanie B. Barton filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 33 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

284 DECLARATION in Support by Douglas W. Bland filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
285 DECLARATION in Support by Gregory Blankenship filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
286 DECLARATION in Support by David Bond filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
287 DECLARATION in Support by Timothy Bosworth filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
288 DECLARATION in Support by Robert Boucher filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
289 DECLARATION in Support by Steve Brannon filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
290 DECLARATION in Support by Debra Breshears filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
291 DECLARATION in Support by Craig Brown filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
292 DECLARATION in Support by Cynthia Brown filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
293 DECLARATION in Support by Keri I. Brown filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
294 DECLARATION in Support by Anthony Bryant filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
295 DECLARATION in Support by Angela D. Buck filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
296 DECLARATION in Support by Mark Buckley filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
297 DECLARATION in Support by Peter Burns filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
298 DECLARATION in Support by Timothy R. Burt filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
299 DECLARATION in Support by Don Byram filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
300 DECLARATION in Support by Micah Caler filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
301 DECLARATION in Support by Larry Calkin filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
302 DECLARATION in Support by Ron Capriola filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
303 DECLARATION in Support by Don Carlson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
304 DECLARATION in Support by Ted A. Carlton filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
305 DECLARATION in Support by Joseph Carr filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
306 DECLARATION in Support by Todd Carr filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
307 DECLARATION in Support by Christopher M. Carter filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 34 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

308 DECLARATION in Support by Scott Carter filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
309 DECLARATION in Support by Steven Casey filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
310 DECLARATION in Support by Patrick Clifford filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
311 DECLARATION in Support by Ralph Clouse filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
312 DECLARATION in Support by Adam Cohen filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
313 DECLARATION in Support by Charles Coleman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
314 DECLARATION in Support by Rusty Collins filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
315 DECLARATION in Support by Genene Cook filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
316 DECLARATION in Support by Jan G. Coon filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
317 DECLARATION in Support by Cherish Copeland filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
318 DECLARATION in Support by Shannon Creemans filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
319 DECLARATION in Support by Curtis Creswell filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
320 DECLARATION in Support by Tina Cryer filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
321 DECLARATION in Support by David Cumpton filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
322 DECLARATION in Support by James A. Cundari III filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
323 DECLARATION in Support by Michael D. Curley filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
324 DECLARATION in Support by John Delk filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
325 DECLARATION in Support by Chris Demiere filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
326 DECLARATION in Support by Timothy Dillaha filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
327 DECLARATION in Support by Dan Dugger filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
328 DECLARATION in Support by Michele R. East filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
329 DECLARATION in Support by Jason Glen Fifer filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
330 DECLARATION in Support by Kenneth J. Foreman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)
331 DECLARATION in Support by Heather Frederick filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/16/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 35 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

332 DECLARATION in Support by Scott Freeman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
333 DECLARATION in Support by David Freerks filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
334 DECLARATION in Support by Kathy Fruge filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
335 DECLARATION in Support by Jeffrey Furman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
336 DECLARATION in Support by Edwin H. Garcia filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
337 DECLARATION in Support by Andy Gilliland filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
338 DECLARATION in Support by Wendy Gomez filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
339 DECLARATION in Support by Bill Goodlick filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
340 DECLARATION in Support by Boyd Green filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
341 DECLARATION in Support by Patricia A. Greeno filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
342 DECLARATION in Support by Curtis Gullett filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
343 DECLARATION in Support by George Gurchinoff filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
344 DECLARATION in Support by Thomas Gurthet filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
345 DECLARATION in Support by Mark Haberman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
346 DECLARATION in Support by John Hale filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
347 DECLARATION in Support by David Hall filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
348 DECLARATION in Support by John T. Hall filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
349 DECLARATION in Support by Steve D. Halter filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
350 DECLARATION in Support by John Harding filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
351 DECLARATION in Support by Donald Hardwick filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
352 DECLARATION in Support by Carol Harris filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
353 DECLARATION in Support by Robert Hawkins filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
354 DECLARATION in Support by Michael Hawks filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
355 DECLARATION in Support by Cindy Helms filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 36 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

356 DECLARATION in Support by Kathleen Hernandez filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
357 DECLARATION in Support by Joseph Herron filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
358 DECLARATION in Support by Eric Hirons filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
359 DECLARATION in Support by Michael Holmes filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
360 DECLARATION in Support by Bruce Horton filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
361 DECLARATION in Support by Christopher E. Hubbard filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
362 DECLARATION in Support by Todd Hudnall filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
363 DECLARATION in Support by Stephan A. Hulsey filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
364 DECLARATION in Support by Brent Hutchins filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
365 DECLARATION in Support by Jack Inman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
366 DECLARATION in Support by Pete Jeannot filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
367 DECLARATION in Support by Charles Jennings filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
368 DECLARATION in Support by Juan Jimenez filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
369 DECLARATION in Support by Emil Johnson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
370 DECLARATION in Support by Jimmie M. Johnson, Jr. filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
371 DECLARATION in Support by Michael ("Mickey") Johnson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
372 DECLARATION in Support by Jeffrey D. Jones filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
373 DECLARATION in Support by Jonathan Jones filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
374 DECLARATION in Support by Richard A. Jukkola filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
375 DECLARATION in Support by Merl (George) Kenney filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
376 DECLARATION in Support by Ben Kincer filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
377 DECLARATION in Support by Walter Ralph Kirchoff filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
378 DECLARATION in Support by Steven R. Kirkley filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
379 DECLARATION in Support by Sidney Knowles filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 37 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

380 DECLARATION in Support by Varazat "John" Kocharian filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
381 DECLARATION in Support by Brad E. Korte filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
382 DECLARATION in Support by Ronald J. Kovalcin filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
383 DECLARATION in Support by Bradley Koza filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
384 DECLARATION in Support by Rick Lallier filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
385 DECLARATION in Support by Wes Lane filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
386 DECLARATION in Support by Charles Lanning filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
387 DECLARATION in Support by Andrew Lightsey filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
388 DECLARATION in Support by Brian Lindberg filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
389 DECLARATION in Support by Mitchell Lippert filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
390 DECLARATION in Support by Don Lipsey filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
391 DECLARATION in Support by Lee Litterell filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
392 DECLARATION in Support by Doug Lockhart filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
393 DECLARATION in Support by Steven Lovin filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
394 DECLARATION in Support by Stephen Luttrell filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
395 DECLARATION in Support by Scott Mackivitch filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
396 DECLARATION in Support by Tim Mallet filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
397 DECLARATION in Support by Jason Mans filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
398 DECLARATION in Support by Ernie Marchisin filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
399 DECLARATION in Support by Christopher Martin filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
400 DECLARATION in Support by Gary C. Martin filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
401 DECLARATION in Support by Troy Masterson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
402 DECLARATION in Support by Michael McDonald filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
403 DECLARATION in Support by Brenda S. McFarlane filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 38 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

404 DECLARATION in Support by David McKenzie filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
405 DECLARATION in Support by Raymond B. McVea filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
406 DECLARATION in Support by Mark Merritt filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
407 DECLARATION in Support by Dawn Miller filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
408 DECLARATION in Support by Glenn Miller filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
409 DECLARATION in Support by John Miller filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/17/2003)
410 DECLARATION in Support by James Millerborg filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
411 DECLARATION in Support by Christopher Mitchell filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
412 DECLARATION in Support by Daril Montgomery filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
413 DECLARATION in Support by Shannon Moon filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
414 DECLARATION in Support by David T. Mooneyhan filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
415 DECLARATION in Support by Wayne Mosley filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
416 DECLARATION in Support by Matt Mower filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
417 DECLARATION in Support by Pete Munoz filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
418 DECLARATION in Support by Damon R. Mussman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
419 DECLARATION in Support by Jim Neighbors filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
420 DECLARATION in Support by Robert Nicholson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
421 DECLARATION in Support by Doug Nichting filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
422 DECLARATION in Support by Kenneth Nunnery filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
423 DECLARATION in Support by Mike Obeso filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
424 DECLARATION in Support by Daniel D. Olds filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
425 DECLARATION in Support by Stuart Orem filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
426 DECLARATION in Support by Ron Orris filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
427 DECLARATION in Support by Dominic Ortiz filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 39 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

428 DECLARATION in Support by Tanya Parrish filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
429 DECLARATION in Support by Steve Payne filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
430 DECLARATION in Support by Robert Pearce filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
DECLARATION in Support by Edward Perot filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
431 DECLARATION in Support by Edward Perot filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
432 DECLARATION in Support by David Perraut filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
433 DECLARATION in Support by Eva J. Perryman filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
434 DECLARATION in Support by Paul Pflipsen filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
435 DECLARATION in Support by David Pfountz filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
436 DECLARATION in Support by Scott Philp filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
437 DECLARATION in Support by Jimmy Pierson filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
438 DECLARATION in Support by Matt Potts filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
439 DECLARATION in Support by Christopher Poulin filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
440 DECLARATION in Support by David Prete filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
441 DECLARATION in Support by Thomas William Pruitt filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
442 DECLARATION in Support by Stephen Putnam filed by Wal−Mart Stores, Inc.. (mmt, COURT STAFF) (Entered: 06/18/2003)
443 DECLARATION in Support by Albert Quinonez filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
444 DECLARATION in Support by Harold Reynolds filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
445 DECLARATION in Support by Amjad ("AJ") Riaz filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
446 DECLARATION in Support by Larry Rich filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
447 DECLARATION in Support by Robert Ridley filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
448 DECLARATION in Support by Bobby D. Robertson filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
449 DECLARATION in Support by Frank Rocco filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
450 DECLARATION in Support by Alicia Rodriguez filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 40 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

451 DECLARATION in Support by Silverio Rodriguez filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
452 DECLARATION in Support by Charles Roe filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
453 DECLARATION in Support by Sean Rose filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
454 DECLARATION in Support by Micah Roth filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
455 DECLARATION in Support by Carlos Sanchez filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
456 DECLARATION in Support by Paul Sarn filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
457 DECLARATION in Support by Tim Sarvis filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
458 DECLARATION in Support by Richard A. Schroeter filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
459 DECLARATION in Support by Kristi L. Schwartz filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
460 DECLARATION in Support by Denise Shaheen filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
461 DECLARATION in Support by Kari Shanks filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
462 DECLARATION in Support by Bruce Sharpton filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
463 DECLARATION in Support by Theodore Shuff filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
464 DECLARATION in Support by Darwin Sicking filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
465 DECLARATION in Support by Louis Sims filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
466 DECLARATION in Support by Boyce Smith filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
467 DECLARATION in Support by David Smith filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
468 DECLARATION in Support by Christopher Sotolar filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
469 DECLARATION in Support by Kurt Spindler filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
470 DECLARATION in Support by Ted Stafford filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
471 DECLARATION in Support by Blair Stanley filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
472 DECLARATION in Support by Garry Steele filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
473 DECLARATION in Support by Michael Strawbridge filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
474 DECLARATION in Support by Archie Swan filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 41 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

475 DECLARATION in Support by Anthony Talbot filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
476 DECLARATION in Support by Boake Terry filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
477 DECLARATION in Support by Mark L. Thelen filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
478 DECLARATION in Support by Trung To filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
479 DECLARATION in Support by Raymond Toney filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
480 DECLARATION in Support by Michael G. Treece filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
481 DECLARATION in Support by Bryan Trenkle filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
482 DECLARATION in Support by Timothy Trimble filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
483 DECLARATION in Support by Scott Troglen filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
484 DECLARATION in Support by Daniel Trullinger filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
485 DECLARATION in Support by David Vankleeck filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
486 DECLARATION in Support by Ivan Vander Esch filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
487 DECLARATION in Support by Michael S. Walters filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
488 DECLARATION in Support by Charlene Weakley filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
489 DECLARATION in Support by Teresa Weisinger filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
490 DECLARATION in Support by John Wheeler filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
491 DECLARATION in Support by Rhonda White filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
492 DECLARATION in Support by DeAnn Wigginton filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
493 DECLARATION in Support by Brett Wiley filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
494 DECLARATION in Support by Mary Alice Wilfong filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
495 DECLARATION in Support by Archie Williams filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
496 DECLARATION in Support by Mark Williams filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
497 DECLARATION in Support by Ray Williams filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
498 DECLARATION in Support by Robert B. Willison filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 42 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003
06/12/2003

499 DECLARATION in Support by Rick Wilms filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
500 DECLARATION in Support by Irma J. Wilson filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
501 DECLARATION in Support by Mark Wilson filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
502 DECLARATION in Support by Eric Winter filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
503 DECLARATION in Support by Paul Winters filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
504 DECLARATION in Support by Sydney Woolard filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
505 DECLARATION in Support by Matt Woodrum filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
506 DECLARATION in Support by Terry Wright filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
507 DECLARATION in Support by Charles Yates filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
508 DECLARATION in Support by John Zeller filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
509 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Chris Ballay in support of Wal−Mart Stores Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
510 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Timothy Bosworth in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
511 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Cynthia Brown in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
512 DECLARATION in Support re 99 : Supplemental Declaration of Store Manager Anthony Bryant in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
513 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Mark Haberman in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
514 DECLARATION in Opposition re 99 : Supplemental Declaration of Club Manager Charles Jennings in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his club filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
515 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Jeffrey D. Jones in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
516 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Brad Korte in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decision in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 43 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003

517 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Bradley Koza in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
518 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Don Lipsey in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
519 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Jim Neighbors in support of Wal−Mart Stores' Opposition to Motion for class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
520 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager David Pfountz in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
521 DECLARATION in Opposition re 99 : Supplemental Declaration of Club Manager Tom Pruitt in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
522 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Carlos Sanchez in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
523 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Kristin Schwartz in support of Wal−Mart Stores' Opposition to Motion for Class Certificate explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
524 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Theodore Shuff in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
525 DECLARATION in Opposition re 99 : Supplemental Declaration of Store Manager Manager Michael Treece in support of Wal−Mart Stores Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
526 DECLARATION in Support re 99 : Supplemental Declaration of Store Manager John Zeller in support of Wal−Mart Stores' Opposition to Motion for Class Certification explaining pay decisions in his store filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
527 MOTION for Leave to File Confidential Compensation Data Under Seal filed by Wal−Mart Stores, Inc.. Motion Hearing set for 7/25/2003 10:00 AM. (slh, ) (Entered: 06/19/2003)
528 DECLARATION in Opposition re 99 Motion for Class Certification (Margaret Daniel) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
529 DECLARATION in Opposition re 99 Motion for Class Certification (Sandy Ellison) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
530 DECLARATION in Opposition re 99 Motion for Class Certification (Victoria Howard) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
531 DECLARATION in Opposition re 99 Motion for Class Certification (Julie Jeneane Murphy) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 44 of 106

06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/12/2003 06/20/2003
06/20/2003
06/20/2003
06/20/2003

532 DECLARATION in Opposition re 99 Motion for Class Certification (Janice Tree) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
533 DECLARATION in Opposition re 99 Motion for Class Certification (Stacy Wiggins) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 06/19/2003)
534 DECLARATION in Support by Cathy Bishop filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
535 DECLARATION in Support by Larry Whitlow filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
536 DECLARATION in Opposition /Rebutall to declaration of desginated class member Sheila Acree (Linda Donath) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 06/19/2003)
537 CERTIFICATE/PROOF OF SERVICE by Wal−Mart Stores, Inc. (slh, ) (Entered: 06/19/2003)
601 DECLARATION in Opposition re 99 (Craig Arnold) [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 08/01/2003)
602 DECLARATION in Opposition re 99 (Ulonda Crawford) [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 08/01/2003)
603 DECLARATION in Opposition in Rebuttal to declarations of named plaintiffs (Steven R. Crumpler) [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 08/01/2003)
604 DECLARATION in Opposition (Cynthia Mosley) [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 08/01/2003)
605 DECLARATION in Opposition re 99 (Joan G. Haworth Ph.D) vol. 3 [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 08/01/2003)
606 DECLARATION in Opposition re 99 (Joan G. Haworth Ph.D) vol. 4 [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 08/01/2003)
607 DECLARATION in Opposition re 99 (Joan G. Haworth Ph.D) vol. 5 [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 08/01/2003)
608 DECLARATION in Opposition re 99 (Joan G. Haworth, Ph.D) vol. 6 [UNDER SEAL] filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 08/01/2003)
538 MOTION to Strike Declarations of Ten Undisclosed Witnesses filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Motion Hearing set for 7/25/2003 10:00 AM. (mmt, COURT STAFF) (Entered: 06/25/2003)
539 DECLARATION in Support re 538 by Jocelyn D. Larkin filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 538 ) (mmt, COURT STAFF) (Entered: 06/25/2003)
540 MOTION to Strike Store Manager Declarations and Portions of Declaration of Joan Haworth filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Motion Hearing set for 7/25/2003 10:00 AM. (mmt, COURT STAFF) (Entered: 06/25/2003)
541 DECLARATION in Support re 540 of Brad Seligman filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 540 ) (mmt, COURT STAFF) (Entered: 06/25/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 45 of 106

06/20/2003 06/20/2003 06/20/2003 06/25/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003

542 MOTION to Strike Portions of Haworth Declaration for Failure to Comply with Fed.R.Civ.P. 26(a)(2) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Motion Hearing set for 7/25/2003 10:00 AM. (mmt, COURT STAFF) (Entered: 06/25/2003)
543 DECLARATION in Support re 542 of Brad Seligman filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 542 ) (mmt, COURT STAFF) (Entered: 06/25/2003)
544 DECLARATION in Support re 542 of Stanley Presser filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 542 ) (mmt, COURT STAFF) (Entered: 06/25/2003)
545 DECLARATION in Support re 223 ,by Sandra Jean Ellison, of Opposition to Motion for Class Certification filed by Wal−Mart Stores, Inc.. (Related document(s) 223 ) (rcs, ) (Entered: 06/27/2003)
546 Memorandum in Opposition re 540 plaintiff's Motion to Strike Store Manager Declarations and Portions of Declaration of Joan Haworth filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/10/2003)
547 DECLARATION in Opposition re 540 plaintiff's Motion to Strike Store Manager Declarations and Portions of Declaration of Joan Haworth (Kelli Way) filed by Wal−Mart Stores, Inc.. (Related document(s) 540 ) (slh, ) (Entered: 07/10/2003)
548 DECLARATION in Opposition re 540 plaintiff's Motion to Strike Store Manager Declarations and Portions of Declaration of Joan Haworth (Mina Fielek) filed by Wal−Mart Stores, Inc.. (Related document(s) 540 ) (slh, ) (Entered: 07/10/2003)
549 Memorandum in Opposition re 538 plaintiff's Motion to Strike Declarations of Ten Undisclosed Witnesses filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/10/2003)
550 DECLARATION in Opposition re 538 plaintiff's Motion to Strike Declarations of Ten Undisclosed Witnesses (Patricia M. Berry) filed by Wal−Mart Stores, Inc.. (Related document(s) 538 ) (slh, ) (Entered: 07/10/2003)
551 Memorandum in Opposition re 542 plaintiff's Motion to Strike Portions of Haworth Declaration for Failure to Comply with Fed.R. Civ.P.26(a)(2) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/10/2003)
552 DECLARATION in Opposition re 542 plaintiff's Motion to Strike Portions of Haworth Declaration for Failure to Comply with Fed.R.Civ.P.26(a)(2) (Nancy L. Abell) filed by Wal−Mart Stores, Inc.. (Related document(s) 542 ) (slh, ) (Entered: 07/10/2003)
553 DECLARATION in Opposition re 542 plaintiff's Motion to Strike Portions of Haworth Declaration for Failure to Comply with Fed.R.Civ.P.26(a)(2) (Joan G. Haworth) filed by Wal−Mart Stores, Inc.. (Related document(s) 542 ) (slh, ) (Entered: 07/10/2003)
554 CERTIFICATE/PROOF OF SERVICE by Wal−Mart Stores, Inc. re 552 , 546 , 553 , 547 , 548 , 549 , 550 , 551 (slh, ) (Entered: 07/10/2003)
555 Memorandum in Opposition re 527 defendant's Motion to File Confidential Compensation Data Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/10/2003)
556 DECLARATION in Opposition re 527 defendant's Motion to File Confidential Compensation Data Under Seal (Brad Seligman) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 527 ) (slh, ) (Entered: 07/10/2003)
557 Memorandum in Opposition re 232 defendant's Motion to Strike Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of Motion for Class Certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, )

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 46 of 106

07/03/2003
07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/03/2003 07/11/2003

(Entered: 07/10/2003)
558 DECLARATION in Opposition re 232 defendant's Motion to Strike Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of plaintiffs' Motion for Class Certification (Elizabeth A. Lawrence) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 232 ) (slh, ) (Entered: 07/10/2003)
559 Memorandum in Opposition re 263 defendant's Daubert Motion Strike declaration, opinion, and testimony of plaintiffs' expert William T. Bielby, Ph.D. filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/10/2003)
560 DECLARATION in Opposition re 263 defendant's Daubert Motion Strike declaration, opinion, and testimony of plaintiffs' expert William T. Bielby, Ph.D. (Elizabeth A. Lawrence) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 263 ) (slh, ) (Entered: 07/10/2003)
561 DECLARATION in Support re 99 : Supplemental Declaration of Christine Kwapnoski, named plaintiff, in reply to defendant's opposition to Motion for Class Certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 07/10/2003)
562 Reply Memorandum to Motion re 99 Motion for Class Certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/10/2003)
563 DECLARATION in Support re 99 : Supplemental declaration of Christine Webber in support of plaintiffs' reply in support of Class Certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 07/10/2003)
564 DECLARATION in Support re 99 : Supplemental declaration of Jennifer Cynn in support of plaintiffs' reply brief on motion for class certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 07/10/2003)
565 DECLARATION in Support re 99 : Declarationof Dr. Richard Drogin in support of plaintiff's Reply Brief in support of class certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 99 ) (slh, ) (Entered: 07/10/2003)
566 Rebuttal Declaration of Marc Bendick, Jr. Ph.D. filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/10/2003)
567 Memorandum in Opposition re 265 defendant's Motion to Strike declaration of Marc Bendick, Jr., Ph.D. filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/10/2003)
568 DECLARATION in Opposition re 265 defendant's Motion to Strike declaration of Marc Bendick, Jr., Ph.D. (Charles E. Tompkins) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 265 ) (slh, ) (Entered: 07/10/2003)
569 CERTIFICATE/PROOF OF SERVICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson re 556 , 557 , 558 , 559 , 560 , 561 , 562 , 563 , 564 , 565 , 555 , 566 , 567 , 568 (slh, ) (Entered: 07/10/2003)
570 Memorandum in Opposition re 99 : SURREPLY in Opposition to Motion for Class Certification filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/14/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 47 of 106

07/11/2003
07/11/2003
07/11/2003 07/11/2003 07/11/2003 07/11/2003 07/11/2003 07/11/2003 07/11/2003 07/11/2003
07/11/2003 07/11/2003 07/11/2003 07/11/2003 07/11/2003 07/11/2003
07/11/2003

571 DECLARATION in Opposition re 99 Motion for Class Certification and (2) Motion to Strike portions of declaration of Dr. Richard Drogin in support of plaintiffs' Reply Brief in support of class certification (Nancy L. Abell) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 07/14/2003)
572 DECLARATION in Support re 99 Motion for Class Certification and (2) Motion to Strike portions of declaration of Dr. Richard Drogin in support of plaintiffs' Reply Brief in support of class certification (Joan G. Haworth, Ph.D.) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 07/14/2003)
573 DECLARATION in Opposition re 99 Motion for Class Certification (Paul Gorssman) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 07/14/2003)
574 DECLARATION in Opposition re 99 Motion for Class Certification (Don Swann) filed by Wal−Mart Stores, Inc.. (Related document(s) 99 ) (slh, ) (Entered: 07/14/2003)
575 MOTION to Strike Portion of declaration of Dr. Richard Drogin in support of plaintiff's Reply Brief in support of class certification filed by Wal−Mart Stores, Inc.. Motion Hearing set for 7/25/2003 10:00 AM. (slh, ) (Entered: 07/14/2003)
576 Reply Memorandum to Motion re 265 Motion to Strike declaration of Marc Bendick, Jr. Ph.D. filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/14/2003)
577 DECLARATION in Support re 265 Motion to Strike declaration of Marc Bendick, Jr. Ph.D (Lee Neugebauer) filed by Wal−Mart Stores, Inc.. (Related document(s) 265 ) (slh, ) (Entered: 07/14/2003)
578 Reply Memorandum to Motion re 263 Motion to Strike declaration, opinion, and testimony of plaintiffs' expert William T. Bielby, Ph.D filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/14/2003)
579 DECLARATION in Support re 263 Motion to Strike declaration, opinion, and testimony of plaintiffs' expert William T. Bielby, Ph.D. (Neal D. Mollen) filed by Wal−Mart Stores, Inc.. (Related document(s) 263 ) (slh, ) (Entered: 07/14/2003)
580 Reply Memorandum to Motion re 232 Motion to Strike Portions of the Declarations of the Named Plaintiffs and Designated Class Members Filed in Support of Plaintiff's Motion for Class Certification filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/14/2003)
581 Reply to Opposition re 527 Motion for Leave to File Confidential Compensation Data Under Seal filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/14/2003)
582 ERRATA re 551 Opposition to plaintiff's Motion to Stirke Portions of Haworth declaration for failure to comply with Fed.R.Civ.P.26(a)(2) by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/14/2003)
583 Ex Parte MOTION for Leave to File defendant's Surreply in Opposition to plaintiff's Motion for Class Certification filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/14/2003)
584 CERTIFICATE/PROOF OF SERVICE by Wal−Mart Stores, Inc. re 570 (slh, ) (Entered: 07/14/2003)
585 CERTIFICATE/PROOF OF SERVICE by Wal−Mart Stores, Inc. re 578 , 579 , 580 , 581 , 582 , 583 , 571 , 572 , 573 , 574 , 575 , 576 , 577 (slh, ) (Entered: 07/14/2003)
586 Reply Memorandum to Motion re 538 Motion to Strike Declarations of Ten Undisclosed Witnesses filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/14/2003)
587 DECLARATION in Support re 538 Motion to Strike Declarations of Ten Undisclosed Witnesses (Jocelyn D. Larkin) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 538 ) (slh, ) (Entered: 07/14/2003)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 48 of 106

07/11/2003
07/11/2003
07/11/2003
07/11/2003
07/11/2003
07/11/2003 07/14/2003
07/14/2003 07/15/2003 07/18/2003 07/18/2003 07/21/2003 07/23/2003 07/25/2003 07/25/2003 09/08/2003 09/16/2003

588 Reply Memorandum to Motion re 542 Motion to Strike Store Manager Declarations and Portions of Declaration of Joan Haworth filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/14/2003)
589 DECLARATION in Support re 540 Motion to Strike Store Manager Declarations and Portions of Declaration of Joan Haworth (Charles E. Tompkins) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 540 ) (slh, ) (Entered: 07/14/2003)
590 Reply Memorandum to Motion re 542 Motion to Strike Portions of Haworth Declaration for Failure to Comply with Fed.R.Civ.P. 26(a)(2) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/14/2003)
591 DECLARATION in Support re 542 Motion to Strike Portions of Haworth Declaration for Failure to Comply with Fed.R.Civ.P 26(a)(2) (Brad Seligman) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 542 ) (slh, ) (Entered: 07/14/2003)
592 DECLARATION in Support re 542 Motion to Strike Portions of Haworth Declaration for Failure to Comply with Fed.R.Civ.P 26(a)(2) (Dr. Richard Drogin) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 542 ) (slh, ) (Entered: 07/14/2003)
593 CERTIFICATE/PROOF OF SERVICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson re 588 , 589 , 590 , 591 , 592 , 586 , 587 (slh, ) (Entered: 07/14/2003)
594 Memorandum in Opposition re 583 defendant's Exparte Application for Leave to File defendant's Surreply in Opposition to plaintiffs' Motion for Class Certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/15/2003)
595 Memorandum in Opposition re 575 defendant's Motion to Strike filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, ) (Entered: 07/15/2003)
596 CERTIFICATE/PROOF OF SERVICE by Wal−Mart Stores, Inc. (Amended) (slh, ) (Entered: 07/17/2003)
597 ORDER by Judge Martin J. Jenkins vacating the 7/25/03 hearing on plaintiff's Motion to Certify Class 99 ; telephone status conference set for 7/25/03 at 2:00 PM. (slh) (Entered: 07/21/2003)
Set/Reset Hearings: Telephone Status Conference set for 7/25/2003 02:00 PM. (slh) (Entered: 07/21/2003)
598 MOTION for Pro Hac Vice admission of attorney Neal D. Mollen (fee status: pd) filed by Wal−Mart Stores, Inc.. (slh, ) (Entered: 07/22/2003)
600 ORDER by Judge Martin J. Jenkins GRANTING defendant's Motion for Pro Hac Vice admission of attorney Neal D. Mollen 598 . (slh) (Entered: 07/28/2003)
599 Minute Entry: Status Conference held on 7/25/2003 before Judge Jenkins. Case continued to 9/24/03 at 9:30 AM for Motion for Class Certification 99 and Motion to Strike. (Court Reporter − NOT reported.) (slh) (Entered: 07/28/2003)
Set/Reset Deadlines as to Motion 263 , 265 , 232 , 99 , 538 , 540 , 542 , 575 . Motion Hearing set for 9/24/2003 09:30 AM. (slh) (Entered: 07/28/2003)
609 ORDER by Judge Martin J. Jenkins DENYING defendant's Motion for Leave to File Confidential compensation Data Under Seal 527 . (slh, COURT STAFF) (Entered: 09/09/2003)
610 NOTICE /STATEMENT of Recent Decision re: Motion for Class Certification 99 by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 49 of 106

09/17/2003 09/23/2003 09/24/2003 09/25/2003 09/30/2003 10/02/2003 10/02/2003 10/29/2003 11/18/2003
11/20/2003 11/20/2003 12/02/2003
01/06/2004 01/06/2004 01/07/2004 01/08/2004
01/08/2004

Surgeson, Karen Williamson. (slh, COURT STAFF) (Entered: 09/18/2003)
611 STIPULATION AND ORDER by Judge Martin J. Jenkins permitting the parties to bring audio−visual equipment to hearing on Motion for Class Certification 99 . (slh, COURT STAFF) (Entered: 09/19/2003)
612 NOTICE : Second Statement of Recent Decision re: Motion for Class Certification 99 by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Entered: 09/24/2003)
613 Minute Entry: Motion Hearing held on 9/25/2003 before Judge Jenkins; that the Motion for Class Certification 99 is submitted; Court to issue Order. (Court Reporter − Sahar Demos.) (slh, COURT STAFF) (Entered: 09/26/2003)
614 NOTICE : Post Hearing Submission of Joe's Stone Crabs Case by Wal−Mart Stores, Inc.. (slh, COURT STAFF) (Entered: 09/26/2003)
615 NOTICE of Change of Address by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Entered: 10/01/2003)
616 OBJECTIONS to Wal−Mart's class Certification Hearing Notebook by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Entered: 10/06/2003)
617 Response re 616 plaintiff's Post−Hearing Objection to Wal−Mart's Class Certification Hearing Notebook by Wal−Mart Stores, Inc.. (slh, COURT STAFF) (Entered: 10/06/2003)
618 TRANSCRIPT for dates 9/24/03 (C/R: Sahar McVickar). (slh, COURT STAFF) (Entered: 10/30/2003)
619 Ex Parte Application for limited supplemental argument, or in the alternative a telephonic conference with the Court, with respect to pending Motion for Certification filed by Wal−Mart Stores, Inc. (slh, COURT STAFF) (Filed on 11/18/2003) (Entered: 11/19/2003)
620 Memorandum in Opposition to 619 defendant's Ex Parte Application filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (rcs) (Filed on 11/20/2003) (Entered: 12/02/2003)
621 Reply to Opposition to 619 Ex Parte Application filed by Wal−Mart Stores, Inc. (rcs) (Filed on 11/20/2003) (Entered: 12/02/2003)
622 ORDER by Judge Martin J. Jenkins DENYING defendant's Ex Parte Application for limited supplemental argument, or in the alternative a telephonic conference with the Court, with respect to pending Motion for Certification 619 . (slh, COURT STAFF) (Filed on 12/2/2003) (Entered: 12/11/2003)
623 Ex Parte MOTION to Certify Class filed by Wal−Mart Stores, Inc.. Motion Hearing set for 1/9/2004 09:30 AM. (Huibonhoa, Katherine) (Filed on 1/6/2004) (Entered: 01/06/2004)
624 Request for Judicial Notice re 623 filed by Wal−Mart Stores, Inc.. (Attachments: # 1)(Related document(s) 623 ) (Huibonhoa, Katherine) (Filed on 1/6/2004) (Entered: 01/06/2004)
625 Letter dated 12/23/03 from Paul Grossman re: newly−published decision of the U.S. District Court for the Central Distroct of CA denying class certification. (slh, COURT STAFF) (Filed on 1/7/2004) (Entered: 01/14/2004)
626 Opposition to defendant's Ex Parte Motion Requesting Consideration of Admissions 623 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Filed on 1/8/2004) (Entered: 01/15/2004)
627 DECLARATION of Brad Seligman in Opposition to defendant's Ex Parte Motion Requesting Consideration of Admissions 623 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 50 of 106

01/12/2004 03/25/2004 03/25/2004 03/25/2004 03/31/2004 05/03/2004 06/21/2004
06/21/2004 06/21/2004
07/16/2004 07/22/2004

Williamson. (Related document(s) 623 ) (slh, COURT STAFF) (Filed on 1/8/2004) (Entered: 01/15/2004)
628 Reply to Opposition to Exparte Motion 623 filed by Wal−Mart Stores, Inc.. (slh, COURT STAFF) (Filed on 1/12/2004) (Entered: 01/16/2004)
629 Ex Parte Application requesting consideration of additional admissions by plaintiff Kwapnoski that her only salaried positions were not properly classified as salaried exempt and the fact that the pay status for such psositions has been converted to hourly filed by Wal−Mart Stores, Inc.. (slh, COURT STAFF) (Filed on 3/25/2004) (Entered: 03/29/2004)
630 Declaration of Sharon Orlopp in Support of Exparte Application 629 filed by Wal−Mart Stores, Inc.. (Related document(s) 629 ) (slh, COURT STAFF) (Filed on 3/25/2004) (Entered: 03/29/2004)
631 Declaration of John Keane in Support of Exparte Application 629 filed by Wal−Mart Stores, Inc.. (Related document(s) 629 ) (slh, COURT STAFF) (Filed on 3/25/2004) (Entered: 03/29/2004)
632 Memorandum in Opposition to defendant's Ex Parte Application requesting consideration of additional admissions 629 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Filed on 3/31/2004) (Entered: 04/01/2004)
633 NOTICE of Substitution of Counsel by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Filed on 5/3/2004) (Entered: 05/04/2004)
634 ORDER by Judge Martin J. Jenkins GRANTING IN PART AND DENYING IN PART plaintiff's Motion for Class Certification 99 ; the Court certifies the following class for purposes of liability, injunctive and declaratory relief, punitive damages, and lost pay, except that class members for whom there is no available objective data documenting their interest in challenged promotions shall be limited to injunctive and declaratory relief with respect to plaintiffs' promotion claim: All women employed at any Wal−Mart domestic retail store at any time since 12/26/98, who have been or may be subjected to Wal−Mart's challenged pay and management track promotions policies and practices; this action shall be bifurcated into separate liability and remedy phases; the individual racial discrimination claims asserted by named plaintiffs Betty Dukes and Cleo Page shall be severed from the class case; Status Conference set for 7/28/04 at 2:00 PM; Joint Status Statmement due 10 days prior to conference. (slh, COURT STAFF) (Filed on 6/21/2004) (Entered: 06/22/2004)
Set Deadlines/Hearings: Status Conference set for 7/28/2004 02:00 PM. (slh, COURT STAFF) (Filed on 6/21/2004) (Entered: 06/22/2004)
635 ORDER by Judge Martin J. Jenkins GRANTING IN PART AND DENYING IN PART plaintiffs' and defendant's Motions to Strike Expert and Non−Expert Testimony; DENYING defendant's Motion to Strike portions of the declarations of the named plaintiffs and designated class members 232 ; DENYING defendant's Motion to Strike declaration of plaintiffs' expert William T. Bielby 263 ; DENYING defendant's Motion to Strike declaration of Marc Bendick Jr. 265 ; DENYING plaintiff's Motion to Strike store manager declarations 540 ; GRANTING IN PART AND DENYING IN PART plaintiff's Motion to Strike portions of Joan Haworth declaration 542 ; GRANTING defendant's Motion to Strike portion of declaration of Dr. Richard Drogin 575 . (slh, COURT STAFF) (Filed on 6/21/2004) (Entered: 06/22/2004)
636 STIPULATION re Set Deadlines/Hearings Extending Time to File Joint Status Statement by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Sellers, Joseph) (Filed on 7/16/2004) (Entered: 07/16/2004)
637 STATUS REPORT Joint Status Statement by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Sellers, Joseph) (Filed on 7/22/2004) (Entered: 07/22/2004)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 51 of 106

07/26/2004 07/26/2004 07/26/2004 07/26/2004 07/26/2004 07/26/2004 08/12/2004 08/12/2004 08/18/2004 08/18/2004 08/26/2004 08/26/2004 09/03/2004 09/03/2004 09/03/2004 09/03/2004

638 CLERK'S NOTICE re: Documents E−Filed in a case not designated for ECF re: 636 , 637 . (slh, COURT STAFF) (Filed on 7/26/2004) (Entered: 07/26/2004)
639 CLERK'S NOTICE Status Conference reset for 9/29/2004 02:30 PM. Joint Status Conference Statement due by 9/16/2004. (mat, COURT STAFF) (Filed on 7/26/2004) (Entered: 07/26/2004)
640 MOTION to Stay Disclosures and Discovery Pending Appellate Resolution of Walmart's Petition for permission to appeal from order granting class certification filed by Wal−Mart Stores, Inc.. Motion Hearing set for 8/31/2004 09:30 AM. (slh, COURT STAFF) (Filed on 7/26/2004) (Entered: 07/29/2004)
641 Declaration of Charlyn Jarrells Porter in Support of Motion to Stay 640 filed by Wal−Mart Stores, Inc.. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 7/26/2004) (Entered: 07/29/2004)
642 Declaration of Nancy L. Abell in Support of Motion to Stay 640 filed by Wal−Mart Stores, Inc.. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 7/26/2004) (Entered: 07/29/2004)
643 CERTIFICATE OF SERVICE by Wal−Mart Stores, Inc. re 640 MOTION to Stay, 641 Declaration in Support, 642 Declaration in Support (slh, COURT STAFF) (Filed on 7/26/2004) (Entered: 07/29/2004)
644 STIPULATION AND ORDER by Judge Martin J. Jenkins regarding scheduling of (1) defendant's Motion to Stay 640 and (2) plaintiff's upcoming Motion for Clarification of Class Certification Order re: Tolling. (slh, COURT STAFF) (Filed on 8/12/2004) (Entered: 08/16/2004)
Set/Reset Deadlines as to 640 MOTION to Stay. Motion Hearing reset for 9/29/2004 02:30 PM. (slh, COURT STAFF) (Filed on 8/12/2004) (Entered: 08/16/2004)
645 MOTION for Clarification of Class Certification Order re: Tolling filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Motion Hearing set for 9/29/2004 02:30 PM. (slh, COURT STAFF) (Filed on 8/18/2004) (Entered: 08/24/2004)
646 Declaration of Christine E. Webber in Support of Motion for Clarification 645 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson. (Related document(s) 645 ) (slh, COURT STAFF) (Filed on 8/18/2004) (Entered: 08/24/2004)
647 ORDER of USCA granting the petition for permission to appeal the District Court's 6/22/04 order 635 granting class action certification. (slh, COURT STAFF) (Filed on 8/26/2004) (Entered: 08/30/2004)
647 Filing fee $255 Received (receipt number 3363427) re: Notice of Appeal as to 634 Order on Motion to Certify Class by Wal−Mart Stores, Inc. (slh, COURT STAFF) (Filed on 8/26/2004)(usca case no. 04−16688) (Entered: 09/01/2004)
648 Memorandum in Opposition re 640 MOTION to Stay filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Filed on 9/3/2004) (Entered: 09/10/2004)
649 DECLARATION of Class Representative Kwapnoski in Opposition to Motion to Stay 640 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 9/3/2004) (Entered: 09/10/2004)
650 DECLARATION of Jocelyn Larkin in Opposition to Motion to Stay 640 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 9/3/2004) (Entered: 09/10/2004)
651 DECLARATION of Brad Seligman in Opposition to Motion to Stay 640 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 9/3/2004) (Entered: 09/10/2004)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 52 of 106

09/07/2004 09/07/2004
09/14/2004
09/15/2004 09/15/2004 09/15/2004 09/15/2004 09/15/2004 09/20/2004 09/20/2004 09/22/2004 09/22/2004 09/23/2004 09/23/2004 09/24/2004 09/27/2004 06/27/2006
06/30/2006

652 STIPULATION AND ORDER by Judge Martin J. Jenkins regarding Ex Parte communication with class members. (slh, COURT STAFF) (Filed on 9/7/2004) (Entered: 09/10/2004)
653 STIPULATION AND ORDER by Judge Martin J. Jenkins regarding tolling of specified promotion discrimination monetary relief claims and plaintiff's Motion for Clarification of Class Certification Order. (slh, COURT STAFF) (Filed on 9/7/2004) (Entered: 09/10/2004)
667 Filing fee $255 Received (receipt number 3363996) re: Notice of Cross Appeal by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson (slh, COURT STAFF) (Filed on 9/14/2004)(usca case no. 04−16720) (Entered: 09/30/2004)
654 Reply Brief in support of 640 MOTION to Stay filed by Wal−Mart Stores, Inc.. (slh, COURT STAFF) (Filed on 9/15/2004) (Entered: 09/20/2004)
655 Declaration of Nancy L. Abell in Support of Motion to Stay 640 filed by Wal−Mart Stores, Inc.. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 9/15/2004) (Entered: 09/20/2004)
656 Declaration of Paul Grossman in Support of Motion to Stay 640 filed by Wal−Mart Stores, Inc.. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 9/15/2004) (Entered: 09/20/2004)
657 Declaration of Nancy L. Isenburg in Support of Motion to Stay 640 filed by Wal−Mart Stores, Inc.. (Related document(s) 640 ) (slh, COURT STAFF) (Filed on 9/15/2004) (Entered: 09/20/2004)
658 CERTIFICATE OF SERVICE by Wal−Mart Stores, Inc. re 656 Declaration in Support, 657 Declaration in Support, 654 Reply Memorandum, 655 Declaration in Support (slh, COURT STAFF) (Filed on 9/15/2004) (Entered: 09/20/2004)
659 SUPPLEMENTAL JOINT STATUS STATEMENT filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (slh, COURT STAFF) (Filed on 9/20/2004) (Entered: 09/21/2004)
660 CERTIFICATE OF SERVICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson (slh, COURT STAFF) (Filed on 9/20/2004) (Entered: 09/21/2004)
661 Memorandum in Opposition to plaintiffs' Miscellaneous Administrative Request pursuant to L.R. 7−10(b) filed by Wal−Mart Stores, Inc.. (slh, COURT STAFF) (Filed on 9/22/2004) (Entered: 09/23/2004)
662 CERTIFICATE OF SERVICE by Wal−Mart Stores, Inc. re 661 Memorandum in Opposition (slh, COURT STAFF) (Filed on 9/22/2004) (Entered: 09/23/2004)
663 NOTICE of Filing of Original Signature Pages by Wal−Mart Stores, Inc. (slh, COURT STAFF) (Filed on 9/23/2004) (Entered: 09/24/2004)
664 CERTIFICATE OF SERVICE by Wal−Mart Stores, Inc. re 663 Notice (Other) (slh, COURT STAFF) (Filed on 9/23/2004) (Entered: 09/24/2004)
666 ORDER by Judge Martin J. Jenkins GRANTING plaintiffs' administrative request to seal Exhibt B to the Isenberg Declaration submitted by defendant in support of its Motion to Stay. (slh, COURT STAFF) (Filed on 9/24/2004) (Entered: 09/29/2004)
665 ORDER Staying Disclosures and Discovery Pending Appellate Resolution by Judge Martin J. Jenkins granting. (mat, COURT STAFF) (Filed on 9/27/2004) (Entered: 09/27/2004)
668 MOTION to Related Case filed by M.J. Furman. (Attachments: # 1 Signature Page (Declarations/Stipulations) Declaration of Mark C. Molumphy# 2 Exhibit Exhibits B&C to Mark C. Molumphy's Declaration# 3 Proposed Order Proposed Order)(Molumphy, Mark) (Filed on 6/27/2006) (Entered: 06/27/2006)
669 Memorandum in Opposition To Plaintiff's Administrative Motion To Consider Whether Cases Should Be Related filed byWal−Mart Stores, Inc.. (Abell, Nancy) (Filed on 6/30/2006) (Entered: 06/30/2006)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 53 of 106

11/30/2006 12/06/2006 01/02/2007 01/02/2007
01/08/2007 01/08/2007 01/09/2007
01/10/2007
01/11/2007 01/22/2007 01/22/2007 01/23/2007 02/08/2007 02/14/2007 02/28/2007 03/01/2007 03/07/2007
03/13/2007

670 MOTION to Modify Stay of Discovery filed by Patricia Surgeson, M.J. Furman, Betty Dukes, Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski, Cleo Page. (slh, COURT STAFF) (Filed on 11/30/2006) (Entered: 11/30/2006)
671 ORDER by Judge Martin J. Jenkins DENYING Motion to Relate Case C 06−3532 SBA. (slh, COURT STAFF) (Filed on 12/6/2006) (Entered: 12/07/2006)
672 Memorandum in Opposition re 670 MOTION to Modify Stay of Discovery filed byWal−Mart Stores, Inc.. (Abell, Nancy) (Filed on 1/2/2007) (Entered: 01/02/2007)
673 Declaration of Neal D. Mollen in Support of 672 Memorandum in Opposition To Plaintiffs' Motion To Modify Stay Of Discovery filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1)(Related document(s) 672 ) (Abell, Nancy) (Filed on 1/2/2007) (Entered: 01/02/2007)
674 Joint Stipulation and ORDER For Electronic Filing. Signed by Judge Martin J. Jenkins on 1/8/2007. (mat, COURT STAFF) (Filed on 1/8/2007) (Entered: 01/08/2007)
CASE DESIGNATED for Electronic Filing. (mat, COURT STAFF) (Filed on 1/8/2007) (Entered: 01/08/2007)
675 Reply re 670 MOTION to Modify Stay of Discovery filed by Patricia Surgeson, M.J. Furman, Betty Dukes, Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski, Cleo Page. (slh, COURT STAFF) (Filed on 1/9/2007) (Entered: 01/10/2007)
676 MOTION of Jenny R. Yang for leave to appear in Pro Hac Vice (fee paid; receipt no. 34611001528) filed by Patricia Surgeson, M.J. Furman, Betty Dukes, Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski, Cleo Page. (slh, COURT STAFF) (Filed on 1/10/2007) Additional attachment(s) added on 1/17/2007 (slh, COURT STAFF). (Entered: 01/11/2007)
677 ORDER by Judge Martin J. Jenkins GRANTING 676 Motion for Pro Hac Vice admission of attorney Jenny R. Yang. (slh, COURT STAFF) (Filed on 1/11/2007) (Entered: 01/16/2007)
678 CLERK'S NOTICE Continuing Motion to Modify Stay Hearing. Motion Hearing reset for 1/26/2007 09:30 AM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 1/22/2007) (Entered: 01/22/2007)
679 NOTICE of Appearance by Mark A. Perry (Perry, Mark) (Filed on 1/22/2007) (Entered: 01/22/2007)
680 CLERK'S NOTICE Continuing Motion to Modify Stay of Discovery Hearing. Motion Hearing reset for 2/14/2007 02:30 PM in Courtroom 11, 19th Floor, San Francisco. (mat, COURT STAFF) (Filed on 1/23/2007) (Entered: 01/23/2007)
681 NOTICE of Appearance by Theodore J. Boutrous, Jr (Boutrous, Theodore) (Filed on 2/8/2007) (Entered: 02/08/2007)
682 Minute Entry: Hearing held on 2/14/2007 before Martin J. Jenkins re Plaintiffs' Motion to Modify Stay of Discovery 670 . (Court Reporter Kathy Wyatt) (lmh, COURT STAFF) (Date Filed: 2/14/2007) (Entered: 02/15/2007)
683 NOTICE of Appearance by Amanda Marie Rose and Marcellus A. McRae (Rose, Amanda) (Filed on 2/28/2007) (Entered: 02/28/2007)
684 ORDER by Judge Martin J. Jenkins granting 670 Motion to Modify Stay of Discovery. (rbe, COURT STAFF) (Filed on 3/1/2007) (Entered: 03/01/2007)
685 Minute Entry: Telephone Status Conference (Date Filed: 3/7/2007). Further Status Conference set for 3/14/2007 02:30 PM in Courtroom 11, 19th Floor, San Francisco before Hon. Martin J. Jenkins. Parties to jointly submit statement of remaining issues not resolved by 3/13/07, close of business.(Court Reporter: Not Reported.) (epb, COURT STAFF) (Date Filed: 3/7/2007) (Entered: 03/07/2007)
686 STATUS REPORT Joint Statement Regarding Discovery Issues by Wal−Mart Stores, Inc.. (Perry, Mark) (Filed on 3/13/2007) (Entered: 03/13/2007)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 54 of 106

03/15/2007 06/05/2007 06/14/2007 06/14/2007 09/28/2007 10/05/2007 10/15/2007 10/22/2007 10/23/2007
10/26/2007
11/15/2007 11/15/2007
11/29/2007 02/15/2008 03/03/2008 03/03/2008 05/28/2008 07/07/2008

687 TRANSCRIPT of Proceedings held on 2/14/07 before Judge Jenkins. Court Reporter: Kathy Wyatt. (slh, COURT STAFF) (Filed on 3/15/2007) (Entered: 03/16/2007)
Letter dated from Janis Ellen M. Kelly (aka Janis Ellen Leonard); copy of letter forwarded to plaintiff's counsel. (slh, COURT STAFF) (Filed on 6/5/2007) (Entered: 06/11/2007)
688 NOTICE of Change of Address by Debra Lynn Gardner (Gardner, Debra) (Filed on 6/14/2007) (Entered: 06/14/2007)
689 NOTICE of Change In Counsel by Debra Lynn Gardner withdrawing Jonathan Smith (Gardner, Debra) (Filed on 6/14/2007) (Entered: 06/14/2007)
690 Letter from Counsel for Plaintiffs Requesting telephone conference. (Attachments: # 1 Exhibit)(Sellers, Joseph) (Filed on 9/28/2007) (Entered: 09/28/2007)
691 Letter from Wal−Mart Stores, Inc.. (Perry, Mark) (Filed on 10/5/2007) (Entered: 10/05/2007)
692 Letter from Brad Seligman/Joseph Sellers. (Seligman, Brad) (Filed on 10/15/2007) (Entered: 10/15/2007)
693 Letter from Mark Perry. (Brass, Rachel) (Filed on 10/22/2007) (Entered: 10/22/2007)
694 Minute Entry: Discovery Hearing held on 10/23/2007 before Edward M. Chen. Plaintiffs request is granted. Defendant is ordered to produce privilege log and unredacted documents by 11/2/07. Parties shall meet and confer re request for documents from Mr. Coughlin. Further telephonic conference call set for 11/15/07 at 2:30 p.m. Mr. Sellers shall initiate conference call by calling court at (415) 522−3678. (Date Filed: 10/23/2007). (Tape #11:00−11:38a.) (bpf, COURT STAFF) (Date Filed: 10/23/2007) (Entered: 10/23/2007)
695 AMENDED Minute Entry: Discovery Hearing held on 10/23/2007 before Edward M. Chen. Plaintiffs request is granted. Defendant is ordered to produce privilege log and unredacted documents by 11/2/07. Parties shall meet and confer re request for documents from/re Mr. Coughlin. Further telephonic conference call set for 11/15/07 at 2:30 p.m. Mr. Sellers shall initiate conference call by calling court at (415) 522−3678. Case continued to: Further telephonic conference call set for 11/15/07 at 2:30 p.m. (Date Filed: 10/26/2007). (Tape #11:00−11:38 a.m..) (bpf, COURT STAFF) (Date Filed: 10/26/2007) (Entered: 10/26/2007)
696 STATUS REPORT Joint Statement Regarding Discovery Issues by Wal−Mart Stores, Inc.. (Perry, Mark) (Filed on 11/15/2007) (Entered: 11/15/2007)
697 Minute Entry: Discovery Hearing not held on 11/15/2007 before Edward M. Chen. Plaintiffs counsel informed court that parties reached agreement. Conference call not needed. (Date Filed: 11/15/2007). (Tape #n/a.) (bpf, COURT STAFF) (Date Filed: 11/15/2007) (Entered: 11/15/2007)
698 NOTICE of Change In Counsel by Jenny Rae Yang withdrawing the appearance of Deborah Vagins (Yang, Jenny) (Filed on 11/29/2007) (Entered: 11/29/2007)
699 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Vaughn R. Walker for all further proceedings. Judge Hon. Martin J. Jenkins no longer assigned to case. (sv, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/19/2008)
700 Mail sent to Barbara L. Johnson returned as undeliverable re 699 Order Reassigning Case to Judge VRW. (sv, COURT STAFF) (Filed on 3/3/2008) (Entered: 03/03/2008)
701 Mail sent to Neal D. Mollen returned as undeliverable. (sv, COURT STAFF) (Filed on 3/3/2008) (Entered: 03/13/2008)
702 Receipt from James Wood's office in the amount of $12.00 for a copy of the Third Amended Complaint.. (gsa, COURT STAFF) (Filed on 5/28/2008) (Entered: 05/28/2008)
703 ORDER directing parties to submit a joint status report by July 21, 2008 (vrwlc2, COURT STAFF) (Filed on 7/7/2008). (Entered: 07/07/2008)

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07/17/2008 11/14/2008 12/01/2008 02/23/2009
03/19/2009
06/19/2009 05/10/2010
05/12/2010 05/14/2010 06/04/2010 07/16/2010
07/20/2010
07/22/2010 07/22/2010 09/07/2010 09/07/2010 09/16/2010

704 STATUS REPORT Joint Case Status Report by Wal−Mart Stores, Inc.. (Byrnes, Jaime) (Filed on 7/17/2008) (Entered: 07/17/2008)
705 NOTICE by Patricia Surgeson, M.J. Furman, Betty Dukes, Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski, Cleo Page (Webber, Christine) (Filed on 11/14/2008) (Entered: 11/14/2008)
706 NOTICE of Change of Address by Jaime Dodge Byrnes (Byrnes, Jaime) (Filed on 12/1/2008) (Entered: 12/01/2008)
707 ORDER of USCA as to 647 Notice of Appeal filed by Wal−Mart Stores, Inc., 667 Notice of Cross Appeal filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter (slh, COURT STAFF) (Filed on 2/23/2009) (Entered: 02/23/2009)
708 ORDER of USCA as to 647 Notice of Appeal filed by Wal−Mart Stores, Inc., 667 Notice of Cross Appeal, filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter (slh, COURT STAFF) (Filed on 3/19/2009) (Entered: 03/19/2009)
709 Record on Appeal Certified and Transmitted to US Court of Appeals re 647 Notice of Appeal (slh, COURT STAFF) (Filed on 6/19/2009) (Entered: 06/19/2009)
710 USCA Opinion as to 647 Notice of Appeal filed by Wal−Mart Stores, Inc., 667 Notice of Cross Appeal, filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter. (slh, COURT STAFF) (Filed on 5/10/2010) (Entered: 05/10/2010)
711 STIPULATION and [Proposed] Order Extending Stay of all Proceedings Pending Supreme Court Review by Wal−Mart Stores, Inc.. (Brass, Rachel) (Filed on 5/12/2010) (Entered: 05/12/2010)
712 ORDER (vrwlc2, COURT STAFF) (Filed on 5/14/2010) (Entered: 05/14/2010)
713 Appeal Record Returned (far, COURT STAFF) (Filed on 6/4/2010) (Entered: 06/08/2010)
714 ADMINISTRATIVE MOTION BY PLAINTIFF TO CONSIDER WHETHER CASES SHOULD BE RELATED (10−3005 SBA) filed by Diana Alexander−Jones. (Attachments: # 1 Proposed Order, # 2 Proof of Service)(Schneider, Todd) (Filed on 7/16/2010) Modified on 7/16/2010 (far, COURT STAFF). (Entered: 07/16/2010)
715 ADMINISTRATIVE MOTION to Consider Whether Cases Should be Related Pursuant to Civil Local Rule 3−12 filed by Wal−Mart Stores, Inc. (10−3005 SBA) (Attachments: # 1 Stipulation to File Administrative Motion to Consider Whether Cases Should be Related, # 2 Proposed Order, # 3 Declaration of Service)(Boutrous, Theodore) (Filed on 7/20/2010) Modified on 7/20/2010 (far, COURT STAFF). (Entered: 07/20/2010)
716 ORDER by Judge Vaughn R Walker granting doc 714 Motion by Plaintiffs that cases C01−2252 and C10−3005 should be related. (cgk, COURT STAFF) (Filed on 7/22/2010) (Entered: 07/22/2010)
717 ORDER by Judge Vaughn R Walker granting doc 715 Motion to Relate Case. (cgk, COURT STAFF) (Filed on 7/22/2010) (Entered: 07/22/2010)
718 SUPREME COURT LETTER.(far, COURT STAFF) (Filed on 9/7/2010) (Entered: 09/07/2010)
719 WRIT OF CERTIORARI. (far, COURT STAFF) (Filed on 9/7/2010) (Entered: 09/07/2010)
720 Joint MOTION to Stay Joint Motion to Extend Stay of All Proceedings Pending Supreme Court Review filed by Wal−Mart Stores, Inc.. Motion Hearing set for 9/30/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order Proposed Order Granting Joint Motion to Extend Stay of All Proceedings Pending Supreme Court Review)(Boutrous, Theodore) (Filed on 9/16/2010) (Entered: 09/16/2010)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 56 of 106

09/16/2010 09/16/2010
09/17/2010 09/17/2010 12/21/2010
12/21/2010 12/21/2010 12/23/2010 01/07/2011 01/07/2011 01/07/2011 01/28/2011 01/31/2011 02/02/2011 02/04/2011 02/04/2011

721 STIPULATION re 720 Joint MOTION to Stay Joint Motion to Extend Stay of All Proceedings Pending Supreme Court Review Stipulation and Proposed Order to Shorten Time to Consider Joint Motion to Extend Stay by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 9/16/2010) (Entered: 09/16/2010)
722 Declaration of Rachel S. Brass in Support of 720 Joint MOTION to Stay Joint Motion to Extend Stay of All Proceedings Pending Supreme Court Review, 721 Stipulation, Declaration of Rachel S. Brass in Support of Stipulation to Shorten Time filed byWal−Mart Stores, Inc.. (Related document(s) 720 , 721 ) (Brass, Rachel) (Filed on 9/16/2010) (Entered: 09/16/2010)
723 STIPULATION AND ORDER to shorten time to consider joint motion to extend stay. Signed by Judge Vaughn R. Walker on 09/17/10. (rbe, COURT STAFF) (Filed on 9/17/2010) (Entered: 09/17/2010)
724 ORDER by Judge Vaughn R. Walker granting 720 Motion to Extend Stay of all proceedings. (rbe, COURT STAFF) (Filed on 9/17/2010) (Entered: 09/17/2010)
725 JOINT MOTION to Extend Stay of All Proceedings Pending Supreme Court Review filed by Wal−Mart Stores, Inc.. Motion Hearing set for 12/30/2010 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Vaughn R. Walker. (Attachments: # 1 Proposed Order Proposed Order)(Boutrous, Theodore) (Filed on 12/21/2010) Modified on 12/22/2010 (far, COURT STAFF). (Entered: 12/21/2010)
726 STIPULATION and [Proposed] Order to Shorten Time to Consider Joint Motion to Extend Stay re 725 JOINT MOTION to Extend Stay of All Proceedings Pending Supreme Court Review by Wal−Mart Stores, Inc. (Boutrous, Theodore) (Filed on 12/21/2010) Modified on 12/22/2010 (far, COURT STAFF). (Entered: 12/21/2010)
727 DECLARATION of Rachel S. Brass in Support of 726 Stipulation filed by Wal−Mart Stores, Inc. (Related document(s) 726 ) (Brass, Rachel) (Filed on 12/21/2010) Modified on 12/22/2010 (far, COURT STAFF). (Entered: 12/21/2010)
728 ORDER granting 725 Motion to Stay. Accordingly, all proceedings in this case shall remain stayed until the earlier of: 30 days after the Supreme Court's ruling on Wal−Mart's appeal or 8/26/2011. (vrwlc3, COURT STAFF) (Filed on 12/23/2010). (Entered: 12/23/2010)
729 MANDATE of USCA as to 647 Notice of Appeal filed by Wal−Mart Stores, Inc., 667 Notice of Cross Appeal, filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter. (slh, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
730 CLERKS Letter Spreading Mandate to Counsel (slh, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
731 U.S. Supreme Court Letter as to 647 Notice of Appeal filed by Wal−Mart Stores, Inc., 667 Notice of Cross Appeal, filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter (slh, COURT STAFF) (Filed on 1/7/2011) (Entered: 01/07/2011)
732 ORDER. Due to the pending retirement of the undersigned, the clerk is directed to re−assign this case. Signed by Judge Vaughn R Walker on 1/28/2011. (cgk, COURT STAFF) (Filed on 1/28/2011) (Entered: 01/28/2011)
733 ORDER REASSIGNING CASE. Case reassigned to Judge Hon. Charles R. Breyer for all further proceedings. Judge Hon. Vaughn R. Walker no longer assigned to the case. Signed by Executive Committee on 1/31/11. (mab, COURT STAFF) (Filed on 1/31/2011) (Entered: 01/31/2011)
734 Certified and Transmitted Record on Appeal to US Supreme Court re 647 Notice of Appeal, 667 Notice of Cross Appeal. (mcl, COURT STAFF) (Entered: 02/02/2011)
735 Mail sent to Barbara L. Johnson returned as undeliverable re 729 USCA Mandate, 730 Clerks Letter Spreading Mandate. (mcl, COURT STAFF) (Entered: 02/08/2011)
736 Mail sent to Neal D. Mollen returned as undeliverable re 729 USCA Mandate, 730 Clerks Letter Spreading Mandate. (mcl, COURT STAFF) (Entered: 02/08/2011)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 57 of 106

03/01/2011 05/25/2011
06/09/2011 06/24/2011 06/24/2011 06/24/2011
06/24/2011 06/27/2011 06/28/2011 06/28/2011 06/28/2011 06/30/2011

737 Receipt for Appeal Record re appeal 647 Notice of Appeal, 667 Notice of Cross Appeal. (mcl, COURT STAFF) (Filed on 3/1/2011) (Entered: 03/02/2011)
Due to Judge Chen's elevation to Article III status, this case is re−referred to Magistrate Judge Nathanael M. Cousins for discovery. All matters scheduled before, and deadlines set by, Judge Chen are hereby vacated. All future discovery matters should be addressed to Judge Cousins unless otherwise ordered by the presiding judge. Until Judge Cousins takes the bench on July 5, 2011, any urgent discovery issues requiring immediate judicial attention should be addressed to Magistrate Judge Joseph C. Spero by contacting his courtroom deputy, Karen Hom, at (415) 522−2035. ; Judge Hon. Edward M. Chen no longer assigned to case. (far, COURT STAFF) (Filed on 5/25/2011) (Entered: 05/25/2011)
Set/Reset Deadlines as to 740 MOTION to Extend Tolling of the Statute of Limitations. Responses due by 7/8/2011. Replies due by 7/15/2011. Motion Hearing set for 7/29/2011 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 6/9/2011) (Entered: 06/29/2011)
738 MOTION for Administrative Relief Under Rule 7−11 to Partially Lift Stay and Schedule a Case Management Conference filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Responses due by 7/1/2011. (Attachments: # 1 Proposed Order)(Sellers, Joseph) (Filed on 6/24/2011) (Entered: 06/24/2011)
739 Declaration of Brad Seligman in Support of 738 MOTION for Administrative Relief Under Rule 7−11 to Partially Lift Stay and Schedule a Case Management Conference filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Attachments: # 1 Exhibit 1)(Related document(s) 738 ) (Sellers, Joseph) (Filed on 6/24/2011) (Entered: 06/24/2011)
740 MOTION to Extend Tolling of the Statute of Limitations filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Motion Hearing set for 7/29/2011 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 7/8/2011. (Attachments: # 1 Proposed Order)(Sellers, Joseph) (Filed on 6/24/2011) Modified on 6/27/2011 (mcl, COURT STAFF). (Entered: 06/24/2011)
741 Declaration of Brad Seligman in Support of 740 MOTION to Extend Tolling of the Statute of Limitations filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Attachments: # 1 Exhibit 1)(Related document(s) 740 ) (Sellers, Joseph) (Filed on 6/24/2011) (Entered: 06/24/2011)
742 ERRATA re 740 MOTION to Extend Tolling of the Statute of Limitations by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Sellers, Joseph) (Filed on 6/27/2011) (Entered: 06/27/2011)
743 RESPONSE (re 738 MOTION for Administrative Relief Under Rule 7−11 to Partially Lift Stay and Schedule a Case Management Conference ) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 6/28/2011) (Entered: 06/28/2011)
744 Declaration of Theodore J. Boutrous, Jr. in Support of 743 Opposition/Response to Motion for Administrative Relief filed byWal−Mart Stores, Inc.. (Related document(s) 743 ) (Boutrous, Theodore) (Filed on 6/28/2011) (Entered: 06/28/2011)
745 Declaration of Mark A. Perry in Support of 743 Opposition/Response to Motion for Administrative Relief filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit Exhibit 1 to Perry Declaration)(Related document(s) 743 ) (Boutrous, Theodore) (Filed on 6/28/2011) (Entered: 06/28/2011)
746 STIPULATION re 738 MOTION for Administrative Relief Under Rule 7−11 to Partially Lift Stay and Schedule a Case Management Conference, 740 MOTION to Extend Tolling of the Statute of Limitations and [Proposed] Order Shortening Time For Hearing on Plaintiffs' Motion to Toll and Scheduling Case Management Conference by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 6/30/2011) (Entered: 06/30/2011)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 58 of 106

07/01/2011 07/08/2011 07/15/2011 07/15/2011 07/15/2011
07/21/2011 07/22/2011
07/22/2011 07/25/2011
07/26/2011 07/26/2011 07/27/2011
08/01/2011 08/05/2011

747 ORDER PURSUANT TO STIPULATION. Signed by Judge Charles R. Breyer on July 1, 2011. (crblc2, COURT STAFF) (Filed on 7/1/2011) (Entered: 07/01/2011)
748 RESPONSE (re 740 MOTION to Extend Tolling of the Statute of Limitations ) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 7/8/2011) (Entered: 07/08/2011)
749 Supplemental JOINT CASE MANAGEMENT STATEMENT filed by Wal−Mart Stores, Inc. (Boutrous, Theodore) (Filed on 7/15/2011) Modified on 7/18/2011 (mcl, COURT STAFF). (Entered: 07/15/2011)
750 REPLY (re 740 MOTION to Extend Tolling of the Statute of Limitations ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Attachments: # 1 Exhibit 1 − Johnson v. Big Lots)(Sellers, Joseph) (Filed on 7/15/2011) (Entered: 07/15/2011)
751 Declaration of Joseph M. Sellers in Support of 750 Reply to Opposition/Response, (Motion to Extend Tolling of Statute of Limitations) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Attachments: # 1 Exhibit A − Wal−Mart Email, # 2 Exhibit B − Stipulation and Order)(Related document(s) 750 ) (Sellers, Joseph) (Filed on 7/15/2011) (Entered: 07/15/2011)
752 NOTICE of Change In Counsel by Nancy L. Abell Notice of Substitution and Withdrawal of Counsel; [Proposed] Order Thereon (Abell, Nancy) (Filed on 7/21/2011) (Entered: 07/21/2011)
753 Minute Entry: Motion Hearing held on 7/22/2011 before Charles R. Breyer (Date Filed: 7/22/2011) re 740 MOTION to Extend Tolling of the Statute of Limitations filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter. (Court Reporter Sahar Bartlett.) (beS, COURT STAFF) (Date Filed: 7/22/2011) (Entered: 07/22/2011)
***Deadlines terminated. (beS, COURT STAFF) (Filed on 7/22/2011) (Entered: 07/22/2011)
754 ORDER of Substitution and Withdrawal of Counsel re 752 Notice of Change In Counsel filed by Wal−Mart Stores, Inc., Attorney Frederick Brown,Michele Leigh Maryott,Theane Evangelis Kapur for Wal−Mart Stores, Inc. added. Attorney Katherine C Huibonhoa; Barbara L. Johnson; Neal D. Mollen; Nancy L. Abell and Jaime Dodge Byrnes terminated.. Signed by Judge Charles R. Breyer on 7/25/2011. (beS, COURT STAFF) (Filed on 7/25/2011) (Entered: 07/25/2011)
755 U.S. Supreme Court Opinion as to 647 Notice of Appeal filed by Wal−Mart Stores, Inc., 667 Notice of Cross Appeal, filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter. (mcl, COURT STAFF) (Entered: 07/26/2011)
756 Letter from U.S. Supreme Court re attached certified copy of judgment. (mcl, COURT STAFF) (Filed on 7/26/2011) (Entered: 07/26/2011)
757 Transcript of Proceedings held on 7/22/11, before Judge Charles R. Breyer. Court Reporter/Transcriber Sahar Bartlett, CSR, RPR, Telephone number (415) 626−6060/sahar_bartlett@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/25/2011. (Bartlett, Sahar) (Filed on 7/27/2011) (Entered: 07/27/2011)
758 Appeal Record Returned from U.S. Supreme Court. (mcl, COURT STAFF) (Entered: 08/01/2011)
759 NOTICE of Change In Counsel by Noreen A. Farrell (Farrell, Noreen) (Filed on 8/5/2011) (Entered: 08/05/2011)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 59 of 106

08/19/2011 10/14/2011
10/14/2011
10/17/2011 10/25/2011 10/25/2011 10/26/2011 10/27/2011 10/27/2011
10/28/2011 11/04/2011
11/04/2011 11/11/2011 11/15/2011

760 ORDER by Judge Charles R. Breyer granting in part 740 Motion to Extend Tolling. (crblc2, COURT STAFF) (Filed on 8/19/2011) (Entered: 08/19/2011)
761 Declaration of Brad Seligman In Support Of Plaintiffs' Motion To Modify Protective Order filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Attachments: # 1 Exhibit Stipulation and Protective Order, # 2 Exhibit Declaration of Jennifer Cynn In Support Of Plaintiffs' Motion For Class Certification, # 3 Proposed Order [Plaintiffs' Proposed] Order Modifying Protective Order)(Seligman, Brad) (Filed on 10/14/2011) (Entered: 10/14/2011)
762 MOTION to Amend/Correct Protective Order filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Motion Hearing set for 11/18/2011 10:00 AM in Courtroom 2, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 10/28/2011. Replies due by 11/4/2011. (Seligman, Brad) (Filed on 10/14/2011) (Entered: 10/14/2011)
763 ORDER of USCA re Notices of Appeal (USCA # 04−16688, 04−16720). (mcl, COURT STAFF) (Filed on 10/17/2011) (Entered: 10/17/2011)
764 NOTICE of Substitution of Counsel and Proposed Order by Brad Seligman for Cleo Page (Seligman, Brad) (Filed on 10/25/2011) Modified on 1/12/2012 (mcl, COURT STAFF). (Entered: 10/25/2011)
765 STIPULATION Regarding Dismissal of Claims of Karen Williamson by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Seligman, Brad) (Filed on 10/25/2011) (Entered: 10/25/2011)
766 STIPULATION Of Consent To The Filing Of The Fourth Amended Complaint And The Extension Of Time For Defendant Wal−Mart Stores, Inc. To Respond To Complaint And [Proposed] Order by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 10/26/2011) (Entered: 10/26/2011)
767 AMENDED COMPLAINT (Fourth) against Wal−Mart Stores, Inc.. Filed byBetty Dukes, Patricia Surgeson, Edith Arana, Christine Kwapnoski, Deborah Gunter. (Seligman, Brad) (Filed on 10/27/2011) (Entered: 10/27/2011)
768 RESPONSE (re 762 MOTION to Amend/Correct Protective Order ) Wal−Mart Stores, Inc.'s Opposition to Motion to Modify Protective Order filed byWal−Mart Stores, Inc.. (Attachments: # 1 Declaration Declaration of Michele L. Maryott in support of Wal−Mart Stores, Inc.'s Opposition to Modify Protective Order, # 2 Proposed Order [Proposed] Order Denying Plaintiffs' Motion to Modify Protective Order)(Boutrous, Theodore) (Filed on 10/27/2011) (Entered: 10/27/2011)
769 ORDER re Filing of Fourth Amended Complaint re 766 Stipulation, filed by Wal−Mart Stores, Inc.. Signed by Judge Charles R. Breyer on 10/28/2011. (beS, COURT STAFF) (Filed on 10/28/2011) (Entered: 10/28/2011)
770 REPLY (re 762 MOTION to Amend/Correct Protective Order ) In Support Of Motion To Modify Protective Order filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration Supplemental Declaration of Brad Seligman)(Seligman, Brad) (Filed on 11/4/2011) Modified on 11/7/2011 (mjj2, COURT STAFF). (Entered: 11/04/2011)
771 Declaration of Brad Seligman In Support Of 762 Motion To Modify Protective Order filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Seligman, Brad) (Filed on 11/4/2011) Modified on 11/7/2011 (mjj2, COURT STAFF). (Entered: 11/04/2011)
772 STIPULATION To Reschedule Hearing On Plaintiffs' Motion To Modify Protective Order by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 11/11/2011) (Entered: 11/11/2011)
773 ORDER REFERRING CASE to Magistrate Judge for Discovery purposes and vacating hearing date before the Honorable Charles R. Breyer. Signed by Judge Charles R. Breyer on 11/15/2011. (beS, COURT STAFF) (Filed on 11/15/2011) (Entered: 11/15/2011)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 60 of 106

11/15/2011 11/15/2011 11/30/2011
12/01/2011 12/09/2011 12/15/2011
12/23/2011 01/03/2012 01/16/2012 01/16/2012 01/16/2012 01/16/2012

774 ORDER granting 772 Stipulation to Reschedule Hearing filed by Wal−Mart Stores, Inc. Signed by Magistrate Judge Jacqueline Scott Corley on 11/15/2011. (ahm, COURT STAFF) (Filed on 11/15/2011) (Entered: 11/15/2011)
Set/Reset Deadlines as to 762 MOTION to Amend/Correct Protective Order. Motion Hearing reset for 11/30/2011 10:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 11/15/2011) (Entered: 11/15/2011)
775 Minute Entry: Motion Hearing held on 11/30/2011 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 11/30/2011) re 762 MOTION to Amend/Correct Protective Order filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter. The motion is denied without prejudice. (Court Reporter: Jim Yeomans) (ahm, COURT STAFF) (Date Filed: 11/30/2011) (Entered: 11/30/2011)
776 STIPULATION and [Proposed] Order Regarding Page Limits For Motion to Dismiss Fourth Amended Complaint by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 12/1/2011) (Entered: 12/01/2011)
777 ORDER regarding page limits re 776 Stipulation filed by Wal−Mart Stores, Inc.. Signed by Judge Charles R. Breyer on 12/8/2011. (beS, COURT STAFF) (Filed on 12/9/2011) (Entered: 12/09/2011)
778 Transcript of Proceedings held on 11/30/11, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber James Yeomans, Telephone number (415) 863−5179. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 3/14/2012. (jjy, COURT STAFF) (Filed on 12/15/2011) (Entered: 12/15/2011)
779 STIPULATION OF REVISED BRIEFING SCHEDULE FOR DEFENDANT WAL−MART STORES, INC. TO RESPOND TO FOURTH AMENDED COMPLAINT AND [PROPOSED] ORDER by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Rachel S. Brass in Support of Stipulation)(Boutrous, Theodore) (Filed on 12/23/2011) (Entered: 12/23/2011)
780 ORDER re revised briefing schedule re 779 Stipulation, filed by Wal−Mart Stores, Inc. Answer to 4th amended complaint due 01/13/2012.. Signed by Judge Charles R. Breyer on 1/3/2012. (beS, COURT STAFF) (Filed on 1/3/2012) (Entered: 01/03/2012)
781 MOTION to Dismiss Fourth Amended Complaint 767 filed by Wal−Mart Stores, Inc.. Motion Hearing set for 5/11/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 3/23/2012. Replies due by 4/13/2012. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 1/16/2012) (Entered: 01/16/2012)
782 Request for Judicial Notice re 781 MOTION to Dismiss Fourth Amended Complaint 767 filed byWal−Mart Stores, Inc.. (Related document(s) 781 ) (Boutrous, Theodore) (Filed on 1/16/2012) (Entered: 01/16/2012)
783 Declaration of Rachel S. Brass in Support of 782 Request for Judicial Notice, 781 MOTION to Dismiss Fourth Amended Complaint 767 filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Related document(s) 782 , 781 ) (Boutrous, Theodore) (Filed on 1/16/2012) (Entered: 01/16/2012)
784 Declaration of Daniel K. Tom in Support of 782 Request for Judicial Notice, 781 MOTION to Dismiss Fourth Amended Complaint 767 , 783 Declaration in Support, Regarding Technical Failure of ECF Website filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A)(Related document(s) 782 , 781 , 783 ) (Boutrous, Theodore) (Filed on 1/16/2012) (Entered: 01/16/2012)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 61 of 106

01/17/2012 03/21/2012 03/21/2012 03/23/2012
03/27/2012 03/30/2012 03/30/2012
03/30/2012 04/03/2012 04/10/2012
04/13/2012 04/13/2012 04/13/2012

785 ORDER Granting Substitution of Attorney re 764 Notice of Substitution of Counsel filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, Cleo Page, Patricia Surgeson, Deborah Gunter,. Signed by Judge Charles R. Breyer on 1/17/2012. (beS, COURT STAFF) (Filed on 1/17/2012) (Entered: 01/17/2012)
786 STIPULATION WITH PROPOSED ORDER Regarding Filing of Supplemental Memorandum in Support of Wal−Mart's Motion to Dismiss Fourth Amended Complaint filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Mark A. Perry in Support of Stipulation)(Boutrous, Theodore) (Filed on 3/21/2012) (Entered: 03/21/2012)
787 Brief re 781 MOTION to Dismiss Fourth Amended Complaint 767 Supplemental Memorandum in Support of Motion to Dismiss Fourth Amended Complaint filed byWal−Mart Stores, Inc.. (Related document(s) 781 ) (Boutrous, Theodore) (Filed on 3/21/2012) (Entered: 03/21/2012)
788 ORDER re 786 STIPULATION Regarding Filing of Supplemental Memorandum in Support of Wal−Mart's Motion to Dismiss Fourth Amended Complaint filed by Wal−Mart Stores, Inc.. Reset Deadlines as to 781 MOTION to Dismiss Fourth Amended Complaint. Responses due by 3/30/2012. Replies due by 4/13/2012. Motion Hearing reset for 5/7/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Signed by Judge Charles R. Breyer on 3/23/2012. (beS, COURT STAFF) (Filed on 3/23/2012) (Entered: 03/23/2012)
789 MOTION for leave to appear in Pro Hac Vice (Peter Romer−Friedman) ( Filing fee $ 305, receipt number 34611072258.) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Proposed Order)(mcl, COURT STAFF) (Filed on 3/27/2012) (Entered: 03/28/2012)
790 RESPONSE (re 781 MOTION to Dismiss Fourth Amended Complaint 767 ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Proposed Order)(Sellers, Joseph) (Filed on 3/30/2012) (Entered: 03/30/2012)
791 Declaration of Joseph M. Sellers in Support of 790 Opposition/Response to Motion, to Dismiss Fourth Amended Complaint filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit A − 1999 Charge of Stephanie Odle, # 2 Exhibit B − 2000 Charge of Stephanie Odle, # 3 Exhibit C − 2001 Charge of Betty Dukes)(Related document(s) 790 ) (Sellers, Joseph) (Filed on 3/30/2012) (Entered: 03/30/2012)
792 Statement of Non−Opposition re 782 Request for Judicial Notice Regarding Exhibits A, B, C and D to the Brass Declaration filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Related document(s) 782 ) (Sellers, Joseph) (Filed on 3/30/2012) (Entered: 03/30/2012)
793 Order by Hon. Charles R. Breyer granting 789 Motion for Pro Hac Vice for attorney Peter Romer−Friedman.(tlS, COURT STAFF) (Filed on 4/3/2012) (Entered: 04/03/2012)
794 CLERKS NOTICE Continuing Motion Hearing, Reset Deadlines as to 781 Defendant's MOTION to Dismiss Fourth Amended Complaint 767 . Responses due by 6/1/2012. Replies due by 6/8/2012. Defendant's Motion to Dismiss Hearing re−set to 6/22/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. This is a text only docket entry, there is no document associated with this notice. (tlS, COURT STAFF) (Filed on 4/10/2012) (Entered: 04/10/2012)
795 REPLY (re 781 MOTION to Dismiss Fourth Amended Complaint 767 ) filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 4/13/2012) (Entered: 04/13/2012)
796 *** ERRONEOUS ENTRY. SEE 798 *** Request for Judicial Notice re 795 Reply to Opposition/Response filed byWal−Mart Stores, Inc. (Related document(s) 795 ) (Boutrous, Theodore) (Filed on 4/13/2012) Modified on 4/16/2012 (mcl, COURT STAFF). (Entered: 04/13/2012)
797 Declaration of Theane Evangelis Kapur in Support of 795 Reply to Opposition/Response, 796 Request for Judicial Notice filed byWal−Mart Stores, Inc..

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 62 of 106

04/13/2012 04/17/2012
04/17/2012
04/18/2012 05/29/2012
06/08/2012 06/13/2012
07/02/2012 07/13/2012 07/13/2012 07/19/2012 08/22/2012

(Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2)(Related document(s) 795 , 796 ) (Boutrous, Theodore) (Filed on 4/13/2012) (Entered: 04/13/2012)
798 Request for Judicial Notice re 795 Reply to Opposition/Response CORRECTION OF DOCKET # 796 . filed byWal−Mart Stores, Inc.. (Related document(s) 795 ) (Boutrous, Theodore) (Filed on 4/13/2012) (Entered: 04/13/2012)
799 STIPULATION WITH PROPOSED ORDER re 781 MOTION to Dismiss Fourth Amended Complaint 767 (Stipulation and [Proposed] Order Regarding Advancement of Hearing Date for Wal−Mart's Motion to Dismiss Fourth Amended Complaint) filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson, Wal−Mart Stores, Inc.. (Sellers, Joseph) (Filed on 4/17/2012) (Entered: 04/17/2012)
800 Declaration of Joseph M. Sellers in Support of 799 STIPULATION WITH PROPOSED ORDER re 781 MOTION to Dismiss Fourth Amended Complaint 767 (Stipulation and [Proposed] Order Regarding Advancement of Hearing Date for Wal−Mart's Motion to Dismiss Fourth Amended Complaint) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Related document(s) 799 ) (Sellers, Joseph) (Filed on 4/17/2012) (Entered: 04/17/2012)
801 STIPULATION AND ORDER Regarding Advancement of Hearing Date for Wal−Mart's Motion to Dismiss Fourth Amended Complaint. 781 MOTION to Dismiss Hearing set for 6/8/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Signed by Judge Charles R. Breyer on 04/18/2012. (tmi, COURT STAFF) (Filed on 4/18/2012) (Entered: 04/18/2012)
802 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson. (Attachments: # 1 Exhibit 1 − Thorogood v. Sears, Roebuck, # 2 Exhibit 2 − Scott v. Family Dollar, # 3 Exhibit 3 − Barghout v. Bayer Health Care Pharms., # 4 Exhibit 4 − Bolden v. Walsh Group)(Related document(s) 790 ) (Sellers, Joseph) (Filed on 5/29/2012) (Entered: 05/29/2012)
803 Minute Entry: Motion Hearing held on 6/8/2012 before Charles R. Breyer (Date Filed: 6/8/2012) re 781 MOTION to Dismiss Fourth Amended Complaint 767 filed by Wal−Mart Stores, Inc.. (Court Reporter Katherine Sullivan.) (beS, COURT STAFF) (Date Filed: 6/8/2012) (Entered: 06/11/2012)
804 Transcript of Proceedings held on 6/8/12, before Judge Charles R. Breyer. Court Reporter/Transcriber Katherine Powell Sullivan, RPR, CRR, CSR, Telephone number 415−794−6659/Katherine_Sullivan@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 7/5/2012. Redacted Transcript Deadline set for 7/16/2012. Release of Transcript Restriction set for 9/11/2012. (Sullivan, Katherine) (Filed on 6/13/2012) (Entered: 06/13/2012)
805 Supplemental Briefing ORDER. Signed by Judge Charles R. Breyer on 7/2/2012. (crblc2, COURT STAFF) (Filed on 7/2/2012) (Entered: 07/02/2012)
806 Brief Supplemental Brief Regarding Comcast filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 7/13/2012) (Entered: 07/13/2012)
807 Brief Plaintiffs' Supplemental Brief on Comcast Corp. v. Behrend filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson. (Sellers, Joseph) (Filed on 7/13/2012) (Entered: 07/13/2012)
808 STIPULATION re 805 Order of July 2, 2012 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Wal−Mart Stores, Inc.. (Sellers, Joseph) (Filed on 7/19/2012) (Entered: 07/19/2012)
809 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit Exh. A, # 2 Exhibit Exh. B)(Related document(s) 781 ) (Boutrous, Theodore) (Filed on 8/22/2012) (Entered:

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08/24/2012 09/06/2012 09/21/2012 09/21/2012 10/12/2012 10/19/2012 10/19/2012
10/22/2012 10/24/2012 10/26/2012 11/02/2012 11/08/2012 11/09/2012 11/09/2012 11/09/2012
11/15/2012

08/22/2012)
810 NOTICE by Edith Arana, Betty Dukes, M.J. Furman, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson of Recent Decision (Attachments: # 1 Exhibit Chen−Oster v. Goldman, Sachs, and co.)(Larkin, Jocelyn) (Filed on 8/24/2012) (Entered: 08/24/2012)
811 NOTICE by Edith Arana, Betty Dukes, M.J. Furman, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson Statement of Recent Decision (Attachments: # 1 Exhibit)(Larkin, Jocelyn) (Filed on 9/6/2012) (Entered: 09/06/2012)
812 ORDER by Judge Charles R. Breyer denying 781 Motion to Dismiss. (crblc2, COURT STAFF) (Filed on 9/21/2012) (Entered: 09/21/2012)
Set Deadlines/Hearings: Motion Class Certification due by 1/11/2013. Motion Hearing set for 2/15/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 9/21/2012) (Entered: 09/24/2012)
CLERKS NOTICE (text only, no document on file) Case Management Conference set for 10/26/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (beS, COURT STAFF) (Filed on 10/12/2012) (Entered: 10/12/2012)
813 DEFENDANT WAL−MART STORES, INC.S ANSWER to 767 Fourth Amended Complaint by Wal−Mart Stores, Inc. (Boutrous, Theodore) (Filed on 10/19/2012) Modified on 10/22/2012 (mclS, COURT STAFF). (Entered: 10/19/2012)
814 MOTION for Certificate of Appealability Order 812 Denying 781 Motion to Dismiss Fourth Amended Complaint filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration Theane Kapur in Support for Request for Judicial Notice, # 2 Proposed Order Request for 1292(b) Certification)(Boutrous, Theodore) (Filed on 10/19/2012) (Entered: 10/19/2012)
815 NOTICE of Change In Counsel by Noreen A. Farrell for Equal Rights Advocates (Farrell, Noreen) (Filed on 10/22/2012) (Entered: 10/22/2012)
816 JOINT CASE MANAGEMENT STATEMENT filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 10/24/2012) (Entered: 10/24/2012)
817 Minute Entry: Further Case Management Conference held on 10/26/2012 before Charles R. Breyer (Date Filed: 10/26/2012). (Court Reporter Joan Columbini.) (beS, COURT STAFF) (Date Filed: 10/26/2012) (Entered: 10/26/2012)
818 RESPONSE (re 814 MOTION for Certificate of Appealability Order 812 Denying 781 Motion to Dismiss Fourth Amended Complaint ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit)(Sellers, Joseph) (Filed on 11/2/2012) (Entered: 11/02/2012)
819 STIPULATION WITH PROPOSED ORDER Regarding Hearing on Wal−Mart's Request for Certification for Interlocutory Appeal filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 11/8/2012) (Entered: 11/08/2012)
Set/Reset Deadlines as to 814 MOTION for Certificate of Appealability Order 812 Denying 781 Motion to Dismiss Fourth Amended Complaint. Motion Hearing set for 12/14/2012 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 11/9/2012) (Entered: 11/09/2012)
820 ORDER by Judge Charles R. Breyer denying 819 Stipulation (beS, COURT STAFF) (Filed on 11/9/2012) (Entered: 11/09/2012)
821 REPLY (re 814 MOTION for Certificate of Appealability Order 812 Denying 781 Motion to Dismiss Fourth Amended Complaint ) Reply in Support of Request for Certification for Intlocutory Appeal to the United States Court of Appeals for the Ninth Circuit filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 11/9/2012) (Entered: 11/09/2012)
822 MOTION for Leave to File Motion for Reconsideration filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Proposed Order Granting Leave to Seek Reconsideration of

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12/03/2012
12/10/2012 12/13/2012 12/21/2012 12/21/2012 12/27/2012 12/28/2012 01/02/2013 01/03/2013 01/03/2013 01/04/2013 01/04/2013

This Courts Order Denying Motion to Dismiss (DKT. 812), # 2 Exhibit [PROPOSED] NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF THE COURTS ORDER DENYING MOTION TO DISMISS (DKT. 812))(Boutrous, Theodore) (Filed on 11/15/2012) (Entered: 11/15/2012)
823 Transcript of Proceedings held on October 26, 2012, before Judge Charles R. Breyer. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, Telephone number 415−255−6842. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Redaction Request due 12/24/2012. Redacted Transcript Deadline set for 1/3/2013. Release of Transcript Restriction set for 3/4/2013. (Columbini, Joan) (Filed on 12/3/2012) (Entered: 12/03/2012)
824 ORDER by Judge Charles R. Breyer denying 814 Motion for Certificate of Appealability. (crblc2, COURT STAFF) (Filed on 12/10/2012) (Entered: 12/10/2012)
825 ORDER REQUIRING RESPONSE BY PLAINTIFFS. Signed by Judge Charles R. Breyer on 12/13/2012. (crblc2, COURT STAFF) (Filed on 12/13/2012) (Entered: 12/13/2012)
826 STIPULATION WITH PROPOSED ORDER RE CLASS MANAGEMENT AND CLASS CERTIFICATION filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 12/21/2012) (Entered: 12/21/2012)
827 Letter from Brad Seligman for plaintiffs and Catherine Conway for defendant to Magistrate Judge Jacqueline Scott Corley . (Conway, Catherine) (Filed on 12/21/2012) (Entered: 12/21/2012)
828 *** FILED IN ERROR. REFER TO DOCUMENT 829 . *** RESPONSE (re 822 MOTION for Leave to File Motion for Reconsideration ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Sellers, Joseph) (Filed on 12/27/2012) Modified on 12/28/2012 (fff, COURT STAFF). (Entered: 12/27/2012)
829 RESPONSE (re 822 MOTION for Leave to File Motion for Reconsideration ) CORRECTION OF DOCKET #, 828 filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Sellers, Joseph) (Filed on 12/28/2012) (Entered: 12/28/2012)
830 MOTION to Withdraw as Attorney for Plaintiffs filed by Betty Dukes. Responses due by 1/16/2013. (Attachments: # 1 Proposed Order)(Larkin, Jocelyn) (Filed on 1/2/2013) (Entered: 01/02/2013)
831 CLERKS NOTICE SETTING DISCOVERY HEARING. Discovery Hearing RE 827 Letter, set for 1/10/2013 at 9:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (wsn, COURT STAFF) (Filed on 1/3/2013) (Entered: 01/03/2013)
832 MOTION for Leave to File REPLY IN SUPPORT OF MOTION FOR LEAVE TO SEEK RECONSIDERATION AND [PROPOSED] MOTION FOR RECONSIDERATION filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit [Proposed] Reply in Support of Motion for Reconsideration)(Boutrous, Theodore) (Filed on 1/3/2013) (Entered: 01/03/2013)
833 ORDER granting 826 STIPULATION WITH PROPOSED ORDER RE CLASS MANAGEMENT AND CLASS CERTIFICATION. Motions for Class Certification due by 4/11/2013. Responses due by 5/31/2013. Replies due by 6/25/2013. Signed by Judge Charles R. Breyer on 1/3/2013. (beS, COURT STAFF) (Filed on 1/4/2013) (Entered: 01/04/2013)
834 ORDER by Judge Charles R. Breyer granting 830 Motion to Withdraw as Attorney. Attorney Brad Seligman terminated. (beS, COURT STAFF) (Filed on 1/4/2013) Modified on 1/7/2013 (mclS, COURT STAFF). (Entered: 01/04/2013)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 65 of 106

01/07/2013 01/10/2013 01/10/2013 01/14/2013 01/15/2013
01/16/2013
01/22/2013 01/22/2013 01/22/2013 01/23/2013
01/24/2013 01/29/2013
02/05/2013

835 NOTICE of Appearance by Randy R. Renick and Association of Counsel (Renick, Randy) (Filed on 1/7/2013) (Entered: 01/07/2013)
836 Minute Entry: Discovery Hearing held on 1/10/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 1/10/2013). (Court Reporter: Sarah Goekler.) (wsn, COURT STAFF) (Date Filed: 1/10/2013) (Entered: 01/10/2013)
837 ORDER RE: JOINT DISCOVERY LETTER BRIEF re 827 Letter filed by Wal−Mart Stores, Inc. Signed by Judge Jacqueline Scott Corley on January 10, 2013. (wsn, COURT STAFF) (Filed on 1/10/2013) (Entered: 01/10/2013)
838 ORDER by Judge Charles R. Breyer denying 822 832 Motion for Leave to File Motion for Reconsideration. (crblc2, COURT STAFF) (Filed on 1/14/2013) (Entered: 01/14/2013)
839 *** FILED IN ERROR. PLEASE SEE DOCKET # 840 . *** MOTION Declaratory Relief Concerning the Akin Gump Memo filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. Motion Hearing set for 2/22/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 1/29/2013. Replies due by 2/5/2013. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Webber, Christine) (Filed on 1/15/2013) Modified on 1/16/2013 (ewn, COURT STAFF). (Entered: 01/15/2013)
840 MOTION For Declaratory Relief Concerning the Akin Gump Memo CORRECTION OF DOCKET #, 839 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. Motion Hearing set for 2/22/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 1/30/2013. Replies due by 2/6/2013. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Webber, Christine) (Filed on 1/16/2013) (Entered: 01/16/2013)
841 Letter from Randy Renick, Esq. to Magistrate Judge Jacqueline Scott Corley. (Renick, Randy) (Filed on 1/22/2013) (Entered: 01/22/2013)
842 ORDER RE: BRIEFING SCHEDULE FOR MOTION FOR DECLARATORY RELIEF (Dkt. No. 840). Signed by Judge Jacqueline Scott Corley on 1/22/2013. (jsclc2, COURT STAFF) (Filed on 1/22/2013) (Entered: 01/22/2013)
843 Discovery Letter Briefto Judge Corley filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 1/22/2013) (Entered: 01/22/2013)
844 Transcript of Proceedings held on January 10, 2013, before Judge Corley. Court Reporter/Transcriber Sarah Goekler, Telephone number (530)941−2621; sgoekler.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 4/23/2013. (slg, COURT STAFF) (Filed on 1/23/2013) (Entered: 01/23/2013)
845 Minute Entry: Telephonic Discovery Conference held on 1/22/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 1/24/2013). (Court Reporter: Not Reported) (ahm, COURT STAFF) (Date Filed: 1/24/2013) (Entered: 01/24/2013)
846 RESPONSE (re 840 MOTION For Declaratory Relief Concerning the Akin Gump Memo CORRECTION OF DOCKET #, 839 ) AND CROSS−MOTION TO COMPEL DELIVERY filed byWal−Mart Stores, Inc.. (Attachments: # 1 Declaration Marshall Ney In Support of WM's Response to Plaintiff's Motion and Defendant's Cross Motion, # 2 Declaration Catherine Conway In Support of WM's Response to Plaintiff's Motion and Defendant's Cross Motion, # 3 Proposed Order Denying Plaintiffs' Motion and Granting Defendant's Cross Motion)(Boutrous, Theodore) (Filed on 1/29/2013) (Entered: 01/29/2013)
847 REPLY (re 840 MOTION For Declaratory Relief Concerning the Akin Gump Memo CORRECTION OF DOCKET #, 839 ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 2/5/2013) (Entered: 02/05/2013)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 66 of 106

02/07/2013 02/08/2013 02/11/2013 02/13/2013 02/13/2013 02/14/2013
02/14/2013 02/15/2013 02/19/2013 02/20/2013
02/25/2013 02/25/2013

848 MOTION to Appear by Telephone of Joseph M. Sellers filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Sellers, Joseph) (Filed on 2/7/2013) (Entered: 02/07/2013)
ORDER by Magistrate Judge Jacqueline Scott Corley granting 848 Motion to Appear by Telephone. Counsel shall contact Court Call at 1−888−882−6878 to make the arrangements to appear by telephone. (This is a text only docket entry, there is no document associated with this notice.) (ahm, COURT STAFF) (Filed on 2/8/2013) (Entered: 02/08/2013)
849 REPLY (re 840 MOTION For Declaratory Relief Concerning the Akin Gump Memo CORRECTION OF DOCKET #, 839 ) Defandant's Reply In Support of 846 Cross−Motion to Compel Delivery of Privileged Memorandum filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 2/11/2013) (Entered: 02/11/2013)
850 Joint Discovery Letter Briefre HR Data filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 2/13/2013) (Entered: 02/13/2013)
851 ORDER RE: JOINT DISCOVERY LETTER BRIEF (Dkt. No. 850). Signed by Magistrate Judge Jacqueline Scott Corley on 2/13/2013. (ahm, COURT STAFF) (Filed on 2/13/2013) (Entered: 02/13/2013)
852 Minute Entry: Motion Hearing held on 2/14/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 2/14/2013) re 840 MOTION For Declaratory Relief Concerning the Akin Gump Memo CORRECTION OF DOCKET #, 839 filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Patricia Surgeson, Deborah Gunter. (Court Reporter: Sarah Goelker) (ahm, COURT STAFF) (Date Filed: 2/14/2013) (Entered: 02/14/2013)
Set/Reset Hearing: Discovery Hearing set for 2/28/2013 at 10:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 2/14/2013) (Entered: 02/14/2013)
853 STIPULATION WITH PROPOSED ORDER re 652 Stipulation and Order VACATING SEPTEMBER 7, 2004 ORDER REGARDING EX PARTE COMMUNICATION WITH CLASS MEMBERS filed by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 2/15/2013) (Entered: 02/15/2013)
854 ORDER by Magistrate Judge Jacqueline Scott Corley granting 853 Stipulation VACATING SEPTEMBER 7, 2004 ORDER REGARDING EX PARTE COMMUNICATION WITH CLASS MEMBERS (ahm, COURT STAFF) (Filed on 2/19/2013) (Entered: 02/19/2013)
855 Transcript of Proceedings before Judge Corley. Court Reporter/Transcriber Sarah Goekler, Telephone number (530)941−2621; sgoekler.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 5/21/2013. (slg, COURT STAFF) (Filed on 2/20/2013) (Entered: 02/20/2013)
856 STIPULATION WITH PROPOSED ORDER Regarding the Inadvertent Disclosure of Privileged Material filed by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 2/25/2013) (Entered: 02/25/2013)
857 RESPONSE (re 840 MOTION For Declaratory Relief Concerning the Akin Gump Memo CORRECTION OF DOCKET #, 839 ) SUPPLEMENTAL BRIEF OF DEFENDANT IN SUPPORT OF ITS RESPONSE TO PLAINTIFFS' MOTION FOR DECLARATORY RELIEF AND CROSS−MOTION TO COMPEL DELIVERY OF PRIVILEGED MEMORANDUM filed byWal−Mart Stores, Inc.. (Attachments: # 1 Declaration IN SUPPORT OF DEFENDANT'S RESPONSE TO PLAINTIFFS' MOTION FOR DECLARATORY RELIEF AND CROSS−MOTION TO COMPEL DELIVERY OF PRIVILEGED MEMORANDUM)(Boutrous, Theodore) (Filed on 2/25/2013) (Entered: 02/25/2013)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 67 of 106

02/26/2013 02/26/2013 02/26/2013 02/28/2013 02/28/2013 03/01/2013 03/04/2013 03/04/2013
03/08/2013 03/08/2013
03/11/2013 03/11/2013 03/11/2013

858 Letter from Catherine A. Conway to Magistrate Judge Jacqueline Scott Corley. (Conway, Catherine) (Filed on 2/26/2013) (Entered: 02/26/2013)
859 Joint Discovery Letter Brief filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 2/26/2013) (Entered: 02/26/2013)
860 REPLY (re 840 MOTION For Declaratory Relief Concerning the Akin Gump Memo CORRECTION OF DOCKET #, 839 ) Supplemental Brief in Support of Motion for Declaratory Relief Concerning the Akin Gump Memo filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 2/26/2013) (Entered: 02/26/2013)
861 ORDER by Judge Charles R. Breyer granting 856 Stipulation regarding inadvertent disclosure of privileged material (beS, COURT STAFF) (Filed on 2/28/2013) (Entered: 02/28/2013)
862 Minute Entry: Discovery Hearing held on 2/28/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 2/28/2013). Discovery Hearing set for 3/21/2013 02:00 PM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. (Court Reporter: Belle Ball) (ahm, COURT STAFF) (Date Filed: 2/28/2013) (Entered: 02/28/2013)
863 ORDER RE: DISCOVERY LETTER BRIEFS (Dkt. Nos. 858 & 859) by Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 3/1/2013) (Entered: 03/01/2013)
Set/Reset Hearing: Telephone Conference set for 3/5/2013 01:00 PM before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 3/4/2013) (Entered: 03/04/2013)
864 Transcript of Proceedings held on February 28, 2013, before Judge Jacqueline Scott Corley. Court Reporter/Transcriber Belle Ball, CSR, CRR, RDR, Telephone number (415)373−2529, belle_ball@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/3/2013. (Ball, Belle) (Filed on 3/4/2013) (Entered: 03/04/2013)
865 Joint Discovery Letter BriefSupplemental Briefing re Discovery Disputes filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Plaintiffs' Exhs. re Supplemental Briefing, # 2 Exhibit Defendants's Exhs re Supplemental Briefing)(Renick, Randy) (Filed on 3/8/2013) (Entered: 03/08/2013)
866 RESPONSE to re 863 Order on Discovery Letter Brief Joint Submission in Response to Section 7 of Magistrate Judge Corley's Order by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A to Joint Submission, # 2 Exhibit B (part 1 of 2) to Joint Submission, # 3 Exhibit B (part 2 of 2) to Joint Submission, # 4 Exhibit C to Joint Submission, # 5 Exhibit D to Joint Submission, # 6 Exhibit E to Joint Submission, # 7 Exhibit F to Joint Submission, # 8 Exhibit G to Joint Submission, # 9 Exhibit H to Joint Submission, # 10 Exhibit I to Joint Submission, # 11 Exhibit J to Joint Submission)(Conway, Catherine) (Filed on 3/8/2013) (Entered: 03/08/2013)
867 MOTION for Extension of Time to File Class Certification Motion filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 3/11/2013) (Entered: 03/11/2013)
868 Declaration of Richard Drogin, PHD in Support of Plaintiffs' Motion for Enlargement of Time in Support of 867 MOTION for Extension of Time to File Class Certification Motion filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Related document(s) 867 ) (Renick, Randy) (Filed on 3/11/2013) (Entered: 03/11/2013)
869 Proposed Order re 867 MOTION for Extension of Time to File Class Certification Motion, 868 Declaration in Support, Motion to Enlarge Time to File Class Cert

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 68 of 106

03/11/2013
03/12/2013 03/13/2013 03/14/2013 03/15/2013
03/18/2013 03/18/2013 03/19/2013 03/19/2013 03/19/2013 03/20/2013 03/21/2013
03/26/2013 03/26/2013

Motion by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 3/11/2013) (Entered: 03/11/2013)
870 Declaration of Randy Renick in Support of 867 MOTION for Extension of Time to File Class Certification Motion, 868 Declaration in Support, 869 Proposed Order, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Exhs. 1−10, # 2 Exhibit Exhs. 11−15, # 3 Exhibit Exhs. 16−17, # 4 Exhibit Exh. 18 Part A, # 5 Exhibit Exh. 18 Part B, # 6 Exhibit Exhs. 19−21, # 7 Exhibit Exhs. 21A−22, # 8 Exhibit Exhs. 23−30, # 9 Exhibit Exhs. 31−41, # 10 Exhibit Exhs. 42−45, # 11 Exhibit Exhs. 46−46A, # 12 Exhibit Exh. 47, # 13 Exhibit Exhs. 48−51)(Related document(s) 867 , 868 , 869 ) (Renick, Randy) (Filed on 3/11/2013) (Entered: 03/11/2013)
871 MOTION for leave to appear in Pro Hac Vice by Karl G. Nelson ( Filing fee $ 305, receipt number 0971−7543570.) filed by Wal−Mart Stores, Inc.. (Nelson, Karl) (Filed on 3/12/2013) (Entered: 03/12/2013)
872 ORDER RE: PLAINTIFFS SUPPLEMENTAL SUBMISSION RE: DISCOVERY LETTER BRIEFS (Dkt. No. 865) signed by Magistrate Judge Jacqueline Scott Corley (ahm, COURT STAFF) (Filed on 3/13/2013) (Entered: 03/13/2013)
873 ORDER by Judge Charles R. Breyer granting 871 Motion for Pro Hac Vice (K G Nelson) (beS, COURT STAFF) (Filed on 3/14/2013) (Entered: 03/14/2013)
874 RESPONSE (re 867 MOTION for Extension of Time to File Class Certification Motion ) In Opposition filed byWal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Conway In Support of Opposition to Motion to Enlarge Time, # 2 Exhibit A, Conway Declaration, # 3 Exhibit B, Conway Declaration, # 4 Exhibit C, Conway Declaration, # 5 Exhibit D, Conway Declaration, # 6 Exhibit E, Conway Declaration, # 7 Exhibit F, Conway Declaration, # 8 Proposed Order Denying Extension)(Boutrous, Theodore) (Filed on 3/15/2013) (Entered: 03/15/2013)
875 ORDER by Judge Charles R. Breyer denying 867 Motion for Extension of Time to File. (crblc2, COURT STAFF) (Filed on 3/18/2013) (Entered: 03/18/2013)
876 Proposed Order re Confidentiality of Documents by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 3/18/2013) (Entered: 03/18/2013)
877 ORDER RE: DEFENDANTS SUPPLEMENTAL SUBMISSION RE: DISCOVERY LETTER BRIEFS (Dkt. No. 866). Signed by Magistrate Judge Jacqueline Scott Corley on 3/19/2013. (ahm, COURT STAFF) (Filed on 3/19/2013) (Entered: 03/19/2013)
878 PROTECTIVE ORDER. Signed by Magistrate Judge Jacqueline Scott Corley on 3/19/2013. (ahm, COURT STAFF) (Filed on 3/19/2013) (Entered: 03/19/2013)
879 Discovery Letter Brief filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit)(Webber, Christine) (Filed on 3/19/2013) (Entered: 03/19/2013)
880 ORDER RE: DISCOVERY LETTER BRIEF (Dkt. No. 879). Signed by Magistrate Judge Jacqueline Scott Corley (ahm, COURT STAFF) (Filed on 3/20/2013) (Entered: 03/20/2013)
CLERKS NOTICE VACATING DISCOVERY HEARING. TO ALL PARTIES AND COUNSEL OF RECORD: Please take notice that by the request of the parties, the discovery hearing scheduled for March 21, 2013 at 2:00 p.m. before Magistrate Judge Jacqueline Scott Corley is VACATED. (This is a text only docket entry, there is no document associated with this notice.) (ahm, COURT STAFF) (Filed on 3/21/2013) (Entered: 03/21/2013)
881 ORDER RE: THE AKIN GUMP MEMORANDUM (Dkt. Nos. 840, 846). Signed by Magistrate Judge Jacqueline Scott Corley (ahm, COURT STAFF) (Filed on 3/26/2013) (Entered: 03/26/2013)
882 Discovery Letter Brief filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 3/26/2013) (Entered:

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883 ORDER SETTING HEARING FOR PLAINTIFFS DISCOVERY LETTER BRIEF (Dkt. No. 882). Signed by Judge Jacqueline Scott Corley on March 26, 2013. (jsclc2, COURT STAFF) (Filed on 3/26/2013) (Entered: 03/26/2013)
884 Letter to Magistrate Judge Jacqueline S. Corley in Response to 882 Discovery Letter. (Conway, Catherine) (Filed on 3/26/2013) (Entered: 03/26/2013)
Set/Reset Hearing: Telephonic Discovery Hearing set for 3/27/2013 at 9:00 a.m. before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 3/27/2013) (Entered: 03/27/2013)
885 Minute Entry: Telephonic Discovery Conference held on 3/27/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 3/27/2013). (FTR 9:01−9:12) (ahm, COURT STAFF) (Date Filed: 3/27/2013) (Entered: 03/27/2013)
886 ORDER RE: PLAINTIFFS DISCOVERY LETTER BRIEF (Dkt. No. 882). Signed by Magistrate Judge Jacqueline Scott Corley (ahm, COURT STAFF) (Filed on 3/27/2013) (Entered: 03/27/2013)
887 CLERKS NOTICE Motion re Class Certification Hearing set for 7/9/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 3/28/2013) (Entered: 03/28/2013)
888 STIPULATION WITH PROPOSED ORDER Regarding Page Limits filed by Edith Arana, Betty Dukes, M.J. Furman, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. (Larkin, Jocelyn) (Filed on 3/29/2013) (Entered: 03/29/2013)
889 Order by Hon. Charles R. Breyer granting 888 Stipulation Regarding Page Limits for Motion for Class Certification.(tlS, COURT STAFF) (Filed on 4/3/2013) (Entered: 04/03/2013)
890 NOTICE of Change In Counsel by Jocelyn Dion Larkin (Larkin, Jocelyn) (Filed on 4/11/2013) (Entered: 04/11/2013)
891 MOTION to Certify Class (Redacted) and brief in support of filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. Motion Hearing set for 7/9/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 5/31/2013. Replies due by 6/25/2013. (Attachments: # 1 Declaration of Edith Arana, # 2 Declaration Supplemental − of Edith Arana, # 3 Declaration of Betty Dukes, # 4 Declaration Supplemental − of Betty Dukes, # 5 Declaration of Deborah Gunter, # 6 Declaration Supplemental − of Deborah Gunter, # 7 Declaration of Christine Kwapnoski, # 8 Declaration Supplemental − of Christine Kwapnoski, # 9 Declaration of Patricia Surgeson, # 10 Declaration Supplemental − of Patricia Surgeson, # 11 Declaration of Virginia Abaya, # 12 Declaration of Donna Adair, # 13 Declaration of Gretchen Adams, # 14 Declaration of Melissa Aguilera, # 15 Declaration of Mavi Alulquoy, # 16 Declaration of Terri Anderson, # 17 Declaration of Terri Aragon, # 18 Declaration of Elizabeth Brownell, # 19 Declaration of Stacey Burt, # 20 Declaration of Debra Campbell, # 21 Declaration of Candis Chastain, # 22 Declaration of Joyce Nadine Clark, # 23 Declaration of Cynthia Crutcher, # 24 Declaration of Linda Davis, # 25 Declaration of Carrie Diener, # 26 Declaration of Barbara Jean Dougherty, # 27 Declaration of Shirley Ervine, # 28 Declaration of Kristy Farias, # 29 Declaration of Hillary Flores, # 30 Declaration of Christy Fowler, # 31 Declaration of Hope Garcia, # 32 Declaration of Earnestine Gordon, # 33 Declaration of Lynda Gurhlke, # 34 Declaration of Eva Hamar, # 35 Declaration of Angela Haney, # 36 Declaration of Kathleen Haney, # 37 Declaration of Cheryl Hardin, # 38 Declaration of Darla Harper, # 39 Declaration of Cecilia Harrison, # 40 Declaration of Teresa Hawkins, # 41 Declaration of Loretta Sue Hernandez, # 42 Declaration of Tina Herndon, # 43 Declaration of Patti Hobson, # 44 Declaration of Nancy Hom, # 45 Declaration of Angela Horton, # 46 Declaration of Joanne Jaso, # 47 Declaration of Lucretia Johnson, # 48 Declaration of Gayle Kellems, # 49 Declaration of Darlene Leadingham, # 50 Declaration of Vallery Lee−Williams, # 51 Declaration of Christina Loew, # 52 Declaration of Leesa Marie Long, # 53 Declaration of Pamela A. Long, # 54 Declaration of Deborah Kay Luther, # 55 Declaration of Peggy J.

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MacGregor, # 56 Declaration of Nancy Marley, # 57 Declaration of Kristin Marsh, # 58 Declaration of Pamela McClelan, # 59 Declaration of Sharon Lee McElwain, # 60 Declaration of Linda McMenomy, # 61 Declaration of Valetta McMurray, # 62 Declaration of Valerie Meade, # 63 Declaration of Liane Meyer, # 64 Declaration of Carol Milse, # 65 Declaration of Jeanette Misegadis, # 66 Declaration of April Mitchell, # 67 Declaration of Christine Moore, # 68 Declaration of Cheryl Noone, # 69 Declaration of Lisa Nunez, # 70 Declaration of Stephanie Odle, # 71 Declaration of Cleo Page, # 72 Declaration of Lottie Perez, # 73 Declaration of Tracy Pleasant, # 74 Declaration Sue McFarland Ramirez, # 75 Declaration of Sharon Reese, # 76 Declaration of Claudia Renati, # 77 Declaration of Linda Russell, # 78 Declaration of Kathleen Salvato, # 79 Declaration of Retha Sanders, # 80 Declaration of Barbara Steele, # 81 Declaration of Ruth Stinson, # 82 Declaration of Cheri Stout, # 83 Declaration of Alma Luann Strausz, # 84 Declaration of Linda Tepley−Kean, # 85 Declaration of Eva Turko, # 86 Declaration of Debra Valdez, # 87 Declaration of Olivia Valdez, # 88 Declaration of Suzanne Walker, # 89 Declaration of Karen Williamson, # 90 Declaration of Janice Allaire Wolsleger, # 91 Declaration of Hilde Martha Zahm, # 92 Declaration of Tamara Zumbrun, # 93 Proposed Order)(Sellers, Joseph) (Filed on 4/15/2013) (Entered: 04/15/2013)
892 Declaration of Joseph M. Sellers in Support of 891 MOTION to Certify Class (Redacted) and brief in support of filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Related document(s) 891 ) (Sellers, Joseph) (Filed on 4/15/2013) (Entered: 04/15/2013)
893 Declaration of Christine E. Webber in Support of 891 MOTION to Certify Class (Redacted) and brief in support of filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50)(Related document(s) 891 ) (Webber, Christine) (Filed on 4/15/2013) (Entered: 04/15/2013)
894 Declaration of Christine E. Webber in Support of 891 MOTION to Certify Class (Redacted) and brief in support of Part 2 filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit 51, # 2 Exhibit 52, # 3 Exhibit 53 − Part 1, # 4 Exhibit 53 − Part 2, # 5 Exhibit 54, # 6 Exhibit 55, # 7 Exhibit 56, # 8 Exhibit 57, # 9 Exhibit 58, # 10 Exhibit 59, # 11 Exhibit 60, # 12 Exhibit 61, # 13 Exhibit 62, # 14 Exhibit 63, # 15 Exhibit 64, # 16 Exhibit 65, # 17 Exhibit 66, # 18 Exhibit 67, # 19 Exhibit 68, # 20 Exhibit 69, # 21 Exhibit 70, # 22 Exhibit 71, # 23 Exhibit 72, # 24 Exhibit 73, # 25 Exhibit 74, # 26 Exhibit 75, # 27 Exhibit 76, # 28 Exhibit 77, # 29 Exhibit 78, # 30 Exhibit 79, # 31 Exhibit 80 − Part 1, # 32 Exhibit 80 − Part 2, # 33 Exhibit 80 − Part 3, # 34 Exhibit 81, # 35 Exhibit 82, # 36 Exhibit 83, # 37 Exhibit 84, # 38 Exhibit 85, # 39 Exhibit 86, # 40 Exhibit 87, # 41 Exhibit 88, # 42 Exhibit 89, # 43 Exhibit 90, # 44 Exhibit 91, # 45 Exhibit 92, # 46 Exhibit 93, # 47 Exhibit 94, # 48 Exhibit 95, # 49 Exhibit 96, # 50 Exhibit 97, # 51 Exhibit 98, # 52 Exhibit 99, # 53 Exhibit 100, # 54 Exhibit 101, # 55 Exhibit 102, # 56 Exhibit 103, # 57 Exhibit 104, # 58 Exhibit 105, # 59 Exhibit 106, # 60 Exhibit 107, # 61 Exhibit 108, # 62 Exhibit 109, # 63 Exhibit 110, # 64 Exhibit 111, # 65 Exhibit 112, # 66 Exhibit 113, # 67 Exhibit 114, # 68 Exhibit 115, # 69 Exhibit 116, # 70 Exhibit 117, # 71 Exhibit 118, # 72 Exhibit 119, # 73 Exhibit 120, # 74 Exhibit 121, # 75 Exhibit 122, # 76 Exhibit 123)(Related document(s) 891 ) (Webber, Christine) (Filed on 4/15/2013) (Entered: 04/15/2013)
895 Declaration of Richard Drogin, Ph.D. in Support of 891 MOTION to Certify Class (Redacted) and brief in support of filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Appendix)(Related document(s) 891 ) (Webber, Christine) (Filed on 4/15/2013) (Entered: 04/15/2013)

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896 ERRATA re 891 MOTION to Certify Class (Redacted) and brief in support of Class Certification by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Errata Pls.' Motion & Memo in Support of Class Certification (Redacted and Amended))(Lawrence, Elizabeth) (Filed on 4/15/2013) (Entered: 04/15/2013)
897 Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration Christine Webber in Support of Administrative Motion to File Docs Under Seal, # 2 Proposed Order Granting Admin. Motion to File Docs. Under Seal)(Lawrence, Elizabeth) (Filed on 4/15/2013) (Entered: 04/15/2013)
898 STIPULATION WITH PROPOSED ORDER re 897 Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Proposed Order Granting Stipulation re Filing Docs. Under Seal)(Lawrence, Elizabeth) (Filed on 4/15/2013) (Entered: 04/15/2013)
899 STIPULATION WITH PROPOSED ORDER re Hearing Date for Class Certification Motion filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 4/17/2013) (Entered: 04/17/2013)
900 AFFIDAVIT re 898 STIPULATION WITH PROPOSED ORDER re 897 Administrative Motion to File Under Seal , Declaration of Brian Mottet In Support of Plaintiffs' Administrative Motion to File Documents Under Seal by Wal−Mart Stores, Inc. (Attachments: # 1 Proposed Order [Proposed] Order Granting Plaintiffs' Administrative Motion to File Documents Under Seal)(Brass, Rachel) (Filed on 4/22/2013) Modified on 4/23/2013 (mclS, COURT STAFF). (Entered: 04/22/2013)
901 CERTIFICATE OF SERVICE by Wal−Mart Stores, Inc. re 900 Affidavit,, of Brian Mottet in Support of Plaintiffs' Administrative Motion to File Documents Under Seal; Exhibit 67 (Confidential and Public version); Exhibit 93 (Confidential and Public versions); Exhibit 123 (Confidential and Public versions) and [Proposed] Order (Brass, Rachel) (Filed on 4/22/2013) (Entered: 04/22/2013)
902 STIPULATION WITH PROPOSED ORDER re Hearing Date for Class Certification Motion filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 4/25/2013) (Entered: 04/25/2013)
903 ORDER by Judge Charles R. Breyer granting 897 Administrative Motion to File Under Seal (beS, COURT STAFF) (Filed on 4/25/2013) (Entered: 04/25/2013)
904 DOCUMENT E−FILED UNDER SEAL re 903 Order on Administrative Motion to File Under Seal Ex 67 to Christine Webber Decl. in Support of Class Cert Motion by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Lawrence, Elizabeth) (Filed on 4/26/2013) (Entered: 04/26/2013)
905 DOCUMENT E−FILED UNDER SEAL re 903 Order on Administrative Motion to File Under Seal Exhs 93 & 123 to Webber Decl. in Support of Class Cert Motion by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit)(Lawrence, Elizabeth) (Filed on 4/26/2013) (Entered: 04/26/2013)
906 EXHIBITS re 894 Declaration in Support,,,,,,, REDACTED Exhs 67, 93 & 123 to Webber Decl. in Support of Class Cert Motion filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit, # 2 Exhibit)(Related document(s) 894 ) (Lawrence, Elizabeth) (Filed on 4/26/2013) (Entered: 04/26/2013)
907 Brief UNREDACTED Motion & Memo In Support of Class Cert filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Lawrence, Elizabeth) (Filed on 4/26/2013) (Entered: 04/26/2013)
908 EXHIBITS (UNREDACTED)−Exhs. 10, 83, 92, 94, 95, 99 & 100 to Webber Decl. in Support of Class Cert Motion filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Lawrence, Elizabeth) (Filed on 4/26/2013) (Entered: 04/26/2013)

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909 ORDER granting 902 STIPULATION WITH PROPOSED ORDER re Hearing Date for Class Certification Motion filed by Wal−Mart Stores, Inc.., Reset Hearing as to 891 MOTION to Certify Class (Redacted) Signed by Judge Charles R. Breyer on 5/25/2013. (beS, COURT STAFF) (Filed on 4/26/2013) (Entered: 04/26/2013)
910 MOTION to Withdraw as Attorney filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. Responses due by 5/10/2013. Replies due by 5/17/2013. (Attachments: # 1 Proposed Order)(Yang, Jenny) (Filed on 4/26/2013) (Entered: 04/26/2013)
911 ORDER by Judge Charles R. Breyer granting 910 Motion to Withdraw as Attorney. Attorney Jenny Rae Yang terminated (beS, COURT STAFF) (Filed on 5/9/2013) (Entered: 05/09/2013)
Set/Reset Hearing: Telephonic Discovery Hearing set for 5/16/2013 at 2:30 p.m. before Magistrate Judge Jacqueline Scott Corley. (ahm, COURT STAFF) (Filed on 5/16/2013) (Entered: 05/16/2013)
912 Minute Entry: Telephonic Discovery Hearing held on 5/16/2013 before Magistrate Judge Jacqueline Scott Corley (Date Filed: 5/17/2013). (Recording 2:33−2:44) (ahm, COURT STAFF) (Date Filed: 5/17/2013) (Entered: 05/17/2013)
913 NOTICE of Appearance by Jesse A. Cripps, Jr (Cripps, Jesse) (Filed on 5/28/2013) (Entered: 05/28/2013)
914 NOTICE of Appearance by Jocelyn Dion Larkin of Michael Caesar (Larkin, Jocelyn) (Filed on 5/30/2013) (Entered: 05/30/2013)
915 RESPONSE (re 891 MOTION to Certify Class (Redacted) and brief in support of ) Opposition to Plaintiffs Motion for Class Certification filed byWal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Rick Adams in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Declaration of Beverly Allen in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Declaration of Martha Barrientos−Cabral in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Declaration of Wayne Brockbank in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Declaration of Irene Brodie in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 6 Declaration of Tammy Cannon in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 7 Declaration of Carol Cash in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 8 Declaration of Penny Clevenger in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 9 Declaration of Susan Davis in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 10 Declaration of Ben Dolan in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 11 Declaration of Emily Faria in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 12 Declaration of Elizabeth Flores in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 13 Declaration of Mary Foster in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 14 Declaration of Cheryl Frieze in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 15 Declaration of Gayle Gabbard in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 16 Declaration of Miriam Gonzalez in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 17 Declaration of Mary Goulette in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 18 Declaration of Michell Guajardo in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 19 Declaration of John Howard in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 20 Declaration of Sandra Johnson in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 21 Declaration of Shirley Lewis in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 22 Declaration of Stacey Mantua in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 23 Declaration of Cody Mitchell in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 24 Declaration of Jason Neville in support of

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Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 25 Declaration of Keith Pappert in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 26 Declaration of Lisa Rivera in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 27 Declaration of Katherine Robey in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 28 Declaration of Jennifer Roesner in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 29 Declaration of Gisel Ruiz in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 30 Declaration of Lori Schmidt in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 31 Declaration of Rita Seckington in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 32 Declaration of Deborah Shima in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 33 Declaration of Wendy Shue in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 34 Declaration of Robin Silvana in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 35 Declaration of Ronald Smoot in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 36 Declaration of Larisa Sulzhik in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 37 Declaration of Joy Talbert in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 38 Declaration of Boake Terry in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 39 Declaration of William Thrasher in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 40 Declaration of Kim Turner in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 41 Declaration of Elise Vasquez−Warner in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 42 Declaration of Deborah Wohlers in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 43 Declaration of Nancy Wright in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Boutrous, Theodore) (Filed on 5/31/2013) (Entered: 05/31/2013)
916 Declaration of Tracy Englebrecht in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification filed byWal−Mart Stores, Inc.. (Related document(s) 915 ) (Boutrous, Theodore) (Filed on 5/31/2013) (Entered: 05/31/2013)
917 Declaration of Jesse Cripps in support of 915 Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification filed byWal−Mart Stores, Inc. (Attachments: # 1 Exhibit A, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit B, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit C, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit D, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit E, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 6 Exhibit F, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 7 Exhibit G, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 8 Exhibit H, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 9 Exhibit I, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 10 Exhibit J, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 11 Exhibit K, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 12 Exhibit L, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 13 Exhibit M, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 14 Exhibit N, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 15 Exhibit O, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 16 Exhibit P, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 17 Exhibit Q, Cripps Declaration in support of

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Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 18 Exhibit R, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 19 Exhibit S, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 20 Exhibit T, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 21 Exhibit U, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 22 Exhibit V, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 23 Exhibit W, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 24 Exhibit X, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 25 Exhibit Y, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 26 Exhibit Z, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 27 Exhibit AA, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 28 Exhibit BB, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 29 Exhibit CC, Cripps Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Boutrous, Theodore) (Filed on 5/31/2013) Modified on 6/3/2013 (mclS, COURT STAFF). (Entered: 05/31/2013)
918 Declaration of Mark A. Perry in support of 915 Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N)(Boutrous, Theodore) (Filed on 5/31/2013) Modified on 6/3/2013 (mclS, COURT STAFF). (Entered: 05/31/2013)
919 MOTION to Exclude Declaration Dr. Richard M. Drogin filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/28/2013 02:00 PM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 6/14/2013. Replies due by 6/21/2013. (Attachments: # 1 Proposed Order Granting Wal−Mart Stores, Inc.'s Motion to Exclude Declaration of Dr. Richard M. Drogin)(Boutrous, Theodore) (Filed on 5/31/2013) Modified on 6/3/2013 (mclS, COURT STAFF). (Entered: 05/31/2013)
920 Declaration of Dr. Edward P. Lazear in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Appendix)(Related document(s) 915 ) (Boutrous, Theodore) (Filed on 5/31/2013) (Entered: 05/31/2013)
921 MOTION for Partial Summary Judgment Against Christine Kwapnoski filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/28/2013 02:00 PM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 6/14/2013. Replies due by 6/21/2013. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 5/31/2013) (Entered: 05/31/2013)
922 MOTION for Partial Summary Judgment Against Deborah Gunter filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/28/2013 02:00 PM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 6/14/2013. Replies due by 6/21/2013. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 5/31/2013) (Entered: 05/31/2013)
923 MOTION to Strike Certain Declarations filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/28/2013 02:00 PM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 6/14/2013. Replies due by 6/21/2013. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 5/31/2013) (Entered: 05/31/2013)
924 Administrative Motion to File Under Seal filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Michele L. Maryott, # 2 Proposed Order)(Boutrous, Theodore) (Filed on 5/31/2013) (Entered: 05/31/2013)
925 Declaration of Rachel S. Brass in support of 915 Response filed byWal−Mart Stores, Inc. (Attachments: # 1 Exhibit 1, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 2 Exhibit 2,, Brass

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Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification)(Brass, Rachel) (Filed on 5/31/2013) Modified on 6/3/2013 (mclS, COURT STAFF). (Entered: 05/31/2013)
926 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 3, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 2 Exhibit 5, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 3 Exhibit 6, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
927 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 7, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 2 Exhibit 8, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 3 Exhibit 10, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 4 Exhibit 11, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
928 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 13, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 2 Exhibit 14, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 3 Exhibit 15, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification, # 4 Exhibit 16, Brass Declaration in support of Wal−Mart Stores, Inc.'s Opposition to Plaintiffs' Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
929 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 18, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 20, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 22, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
930 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 25, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 26, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 27, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
931 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 29, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 30, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 31, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
932 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 37, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 38, Brass Declaration in support of

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Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 41, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit 43, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit 44, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
933 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 85, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 84, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 83, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit 82, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit 81, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
934 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 74, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 75, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 76, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit 77, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit 78, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 6 Exhibit 79, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 7 Exhibit 80, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
935 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 63, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 64, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 65, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit 66, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit 68, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 6 Exhibit 69, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 7 Exhibit 70, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 8 Exhibit 71, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 9 Exhibit 72, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 10 Exhibit 73, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
936 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 44, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 45, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 46, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit 48, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit 49, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 6 Exhibit 52, Brass Declaration in support

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of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 7 Exhibit 53, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 8 Exhibit 54, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 9 Exhibit 55, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
937 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 58, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 59, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 60, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit 61, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit 62, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Brass, Rachel) (Filed on 5/31/2013) (Entered: 05/31/2013)
938 Declaration of Rachel S. Brass in Support of 915 Opposition/Response to Motion,,,,,,,,,,,,,,,,,,,,,,, filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 4, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 2 Exhibit 9, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 3 Exhibit 12, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 4 Exhibit 17, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 5 Exhibit 19, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 6 Exhibit 21 (part 1), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 7 Exhibit 21 (part 2), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 8 Exhibit 23, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 9 Exhibit 24, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 10 Exhibit 28, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 11 Exhibit 32, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 12 Exhibit 33 (part 1), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 13 Exhibit 33 (part 2), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 14 Exhibit 33 (part 3), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 15 Exhibit 34, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 16 Exhibit 35, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 17 Exhibit 36, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 18 Exhibit 39 (part 1), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 19 Exhibit 39 (part 2), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 20 Exhibit 40, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 21 Exhibit 42, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 22 Exhibit 47, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 23 Exhibit 50 (part 1), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 24 Exhibit 50 (part 2), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 25 Exhibit 51 (part 1), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 26 Exhibit 51 (part 2), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 27 Exhibit 56 (part 1), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 28 Exhibit 56

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(part 2), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 29 Exhibit 56 (part 3), Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 30 Exhibit 57, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification, # 31 Exhibit 67, Brass Declaration in support of Wal−Mart Stores, Inc.s Opposition to Plaintiffs Motion for Class Certification)(Related document(s) 915 ) (Boutrous, Theodore) (Filed on 6/1/2013) (Entered: 06/01/2013)
939 AFFIDAVIT re 930 Declaration in Support,, 936 Declaration in Support,,,,, 926 Declaration in Support,, 934 Declaration in Support,,,, 931 Declaration in Support,, 928 Declaration in Support,,, 932 Declaration in Support,,, 927 Declaration in Support,,, 933 Declaration in Support,,, 938 Declaration in Support,,,,,,,,,,,,,,,,, 935 Declaration in Support,,,,,, 937 Declaration in Support,,, 925 Declaration in Support, 929 Declaration in Support,, Declaration of Daniel Tom regarding Technical Failure of ECF Website by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, Tom Declaration re Technical Failure)(Brass, Rachel) (Filed on 6/3/2013) (Entered: 06/03/2013)
940 STIPULATION WITH PROPOSED ORDER REGARDING WITHDRAWAL OF DECLARATIONS filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 6/4/2013) (Entered: 06/04/2013)
941 STIPULATION WITH PROPOSED ORDER re 919 MOTION to Exclude to Declaration Dr. Richard M. Drogin Regarding Schedule for Response to Motion to Exclude filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 6/7/2013) (Entered: 06/07/2013)
942 ORDER by Judge Charles R. Breyer granting 924 Administrative Motion to File Under Seal (beS, COURT STAFF) (Filed on 6/11/2013) (Entered: 06/11/2013)
943 ORDER by Judge Charles R. Breyer granting 940 Stipulation regarding withdrawal of declarations (beS, COURT STAFF) (Filed on 6/13/2013) (Entered: 06/13/2013)
944 ORDER granting 941 STIPULATION WITH PROPOSED ORDER re 919 MOTION to Exclude to Declaration Dr. Richard M. Drogin. Reset Deadlines as to 919 MOTION to Exclude to Declaration Dr. Richard M. Drogin. Responses due by 6/19/2013. Replies due by 6/26/2013. Signed by Judge Charles R. Breyer on 6/12/2013. (beS, COURT STAFF) (Filed on 6/13/2013) (Entered: 06/13/2013)
945 DOCUMENT E−FILED UNDER SEAL re 942 Order on Administrative Motion to File Under Seal Exhibt 1 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 2 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 2 Exhibit 3 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 3 Exhibit 4 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 4 Exhibit 5 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 5 Exhibit 6 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 6 Exhibit 7 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 7 Exhibit 10 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 8 Exhibit 11 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 9 Exhibit 13 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 10 Exhibit 14 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 11 Exhibit 17 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 12 Exhibit 21 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 13 Exhibit 22 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 14 Exhibit 24

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(Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 15 Exhibit 26 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 16 Exhibit 27 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 17 Exhibit 29 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 18 Exhibit 30 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 19 Exhibit 33 (part 1) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 20 Exhibit 33 (part 2) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 21 Exhibit 33 (part 3) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 22 Exhibit 36 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 23 Exhibit 38 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 24 Exhibit 39 (part 1) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 25 Exhibit 39 (part 1) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 26 Exhibit 40 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 27 Exhibit 42 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 28 Exhibit 43 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 29 Exhibit 44 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 30 Exhibit 45 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 31 Exhibit 46 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 32 Exhibit 48 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 33 Exhibit 49 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 34 Exhibit 50 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 35 Exhibit 51 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 36 Exhibit 52 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 37 Exhibit 53 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 38 Exhibit 54 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 39 Exhibit 56 (part 1) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 40 Exhibit 56 (part 2) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 41 Exhibit 56 (part 3) (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 42 Exhibit 57 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 43 Exhibit 59 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 44 Exhibit 60 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 45 Exhibit 61 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 46 Exhibit 62 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 47 Exhibit 70 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 48 Exhibit 80 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 49 Exhibit 81 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 50 Exhibit 82 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 51 Exhibit 83 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification,

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# 52 Exhibit 84 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification, # 53 Exhibit 85 (Under Seal), 925 Brass Declaration in support of 915 Wal−Mart Stores, Inc.'s Opposition to Motion for Class Certification)(Boutrous, Theodore) (Filed on 6/14/2013) (Entered: 06/14/2013)
946 ERRATA Appendix A to [924−1] the Declaration of Michele L. Maryott in support of Wal−Mart Store, Inc.s Administrative Motion to Seal by Wal−Mart Stores, Inc.. (Maryott, Michele) (Filed on 6/14/2013) (Entered: 06/14/2013)
947 RESPONSE (re 922 MOTION for Partial Summary Judgment Against Deborah Gunter ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration of Randy Renick in Support of Plaintiffs Opposition to Defendants Motion for Partial Summary Judgment Against Plaintiff Deborah Gunter, # 2 Exhibit Renick Decl. Exhs. 1−2, # 3 Exhibit Renick Decl. Exh. 3, # 4 Exhibit Renick Decl. Exh. 4, # 5 Exhibit Renick Exhs. 5−7, # 6 Proposed Order [PROPOSED] ORDER RE: PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFF DEBORAH GUNTER)(Renick, Randy) (Filed on 6/14/2013) (Entered: 06/14/2013)
948 *** ERRONEOUS ENTRY. SEE 949 *** RESPONSE (re 921 MOTION for Partial Summary Judgment Against Christine Kwapnoski ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration of Sarah Varela, # 2 Exhibit 1 to Varela Declaration, # 3 Exhibit 2 to Varela Declaration, # 4 Exhibit 3 to Varela Declaration, # 5 Exhibit 4 to Varela Declaration, # 6 Proposed Order)(Lawrence, Elizabeth) (Filed on 6/14/2013) Modified on 6/17/2013 (mclS, COURT STAFF). (Entered: 06/14/2013)
949 RESPONSE (re 921 MOTION for Partial Summary Judgment Against Christine Kwapnoski ) CORRECTION OF DOCKET # 948 filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration of Sarah Varela, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Proposed Order)(Lawrence, Elizabeth) (Filed on 6/14/2013) (Entered: 06/14/2013)
950 *** ERRONEOUS ENTRY. SEE 951 *** REPLY (re 923 MOTION to Strike Certain Declarations ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration OF RANDY RENICK AND EXHIBITS IN SUPPORT OF PLAINTIFFS OPPOSITION TO MOTION TO STRIKE CERTAIN DECLARATIONS, # 2 Exhibit Renick Decl. Exh. 1, # 3 Exhibit Renick Decl. Exhs. 2−3, # 4 Proposed Order [PROPOSED] ORDER RE: PLAINTIFFS OPPOSITION TO MOTION TO STRIKE CERTAIN DECLARATIONS)(Renick, Randy) (Filed on 6/14/2013) Modified on 6/17/2013 (mclS, COURT STAFF). (Entered: 06/14/2013)
951 RESPONSE (re 923 MOTION to Strike Certain Declarations ) CORRECTION filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration OF RANDY RENICK AND EXHIBITS IN SUPPORT OF PLAINTIFFS OPPOSITION TO MOTION TO STRIKE CERTAIN DECLARATIONS, # 2 Exhibit Renick Decl. Exh. 1, # 3 Exhibit Renick Decl. Exhs. 2−3, # 4 Proposed Order [PROPOSED] ORDER RE: PLAINTIFFS OPPOSITION TO MOTION TO STRIKE CERTAIN DECLARATIONS)(Renick, Randy) (Filed on 6/14/2013) (Entered: 06/14/2013)
952 RESPONSE (re 919 MOTION to Exclude to Declaration Dr. Richard M. Drogin ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 6/19/2013) (Entered: 06/19/2013)
953 Declaration of Christine Webber in Support of 952 Opposition/Response to Motion to Exclude Declaration of Dr. Drogin filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10)(Related document(s) 952 ) (Webber, Christine) (Filed on 6/19/2013) (Entered: 06/19/2013)

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06/20/2013 06/20/2013 06/21/2013 06/21/2013 06/21/2013 06/21/2013 06/21/2013 06/25/2013
06/25/2013 06/25/2013
06/25/2013 06/25/2013 06/25/2013

954 DOCUMENT E−FILED UNDER SEAL re 942 Order on Administrative Motion to File Under Seal Motion for Partial Summary Judgment Against Christine Kwapnoski by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 6/20/2013) (Entered: 06/20/2013)
955 DOCUMENT E−FILED UNDER SEAL re 942 Order on Administrative Motion to File Under Seal Motion for Partial Summary Judgment Against Deborah Gunter by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 6/20/2013) (Entered: 06/20/2013)
956 REPLY (re 922 MOTION for Partial Summary Judgment Against Deborah Gunter ) filed byWal−Mart Stores, Inc.. (Brass, Rachel) (Filed on 6/21/2013) (Entered: 06/21/2013)
957 Administrative Motion to File Under Seal filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Rachel S. Brass, # 2 Stipulation to File Under Seal, # 3 Proposed Order)(Brass, Rachel) (Filed on 6/21/2013) (Entered: 06/21/2013)
958 REPLY (re 921 MOTION for Partial Summary Judgment Against Christine Kwapnoski ) filed byWal−Mart Stores, Inc.. (Brass, Rachel) (Filed on 6/21/2013) (Entered: 06/21/2013)
959 Declaration of Catherine A. Conway in Support of 921 MOTION for Partial Summary Judgment Against Christine Kwapnoski, 923 MOTION to Strike Certain Declarations filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Related document(s) 921 , 923 ) (Brass, Rachel) (Filed on 6/21/2013) (Entered: 06/21/2013)
960 REPLY (re 923 MOTION to Strike Certain Declarations ) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Proposed Order)(Brass, Rachel) (Filed on 6/21/2013) (Entered: 06/21/2013)
961 MOTION to Strike 920 Declaration in Support, of Defendant's Opposition to Class Certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. Motion Hearing set for 8/2/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 7/9/2013. Replies due by 7/16/2013. (Attachments: # 1 Proposed Order)(Webber, Christine) (Filed on 6/25/2013) (Entered: 06/25/2013)
962 Declaration of Christine Webber in Support of 961 MOTION to Strike 920 Declaration in Support, of Defendant's Opposition to Class Certification filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 961 ) (Webber, Christine) (Filed on 6/25/2013) (Entered: 06/25/2013)
963 MOTION to Strike 918 Declaration in Support,, of Mark Perry in Support of Defendant's Opposition to Class Certification filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. Motion Hearing set for 8/2/2013 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 7/9/2013. Replies due by 7/16/2013. (Attachments: # 1 Proposed Order)(Webber, Christine) (Filed on 6/25/2013) (Entered: 06/25/2013)
964 Declaration of Sarah Varela in Support of 963 MOTION to Strike 918 Declaration in Support,, of Mark Perry in Support of Defendant's Opposition to Class Certification filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Related document(s) 963 ) (Webber, Christine) (Filed on 6/25/2013) (Entered: 06/25/2013)
965 REPLY (re 891 MOTION to Certify Class (Redacted) and brief in support of ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Proposed Order)(Sellers, Joseph) (Filed on 6/25/2013) (Entered: 06/25/2013)
966 Declaration of Shaylyn Cochran in Support of 965 Reply to Opposition/Response, for Class Certification filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit, # 2 Exhibit)(Related document(s) 965 ) (Sellers, Joseph) (Filed on 6/25/2013) (Entered: 06/25/2013)

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06/25/2013
06/25/2013
06/25/2013
06/25/2013
06/25/2013 06/27/2013 06/27/2013 06/27/2013 06/27/2013 06/27/2013
06/27/2013 06/28/2013 06/28/2013

967 Declaration of Marc Bendick in Support of 965 Reply to Opposition/Response, for Class Certification filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix, # 4 Appendix, # 5 Appendix)(Related document(s) 965 ) (Sellers, Joseph) (Filed on 6/25/2013) (Entered: 06/25/2013)
968 Declaration of Richard Drogin in Support of 965 Reply to Opposition/Response, for Class Certification filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Appendix, # 2 Appendix, # 3 Appendix)(Related document(s) 965 ) (Sellers, Joseph) (Filed on 6/25/2013) (Entered: 06/25/2013)
969 Declaration of Michael Caesar in Support of 965 Reply to Opposition/Response, for Class Certification filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit)(Related document(s) 965 ) (Sellers, Joseph) (Filed on 6/25/2013) (Entered: 06/25/2013)
970 Declaration of Randy Renick in Support of 965 Reply to Opposition/Response, for Class Certification filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Renick Exh. 1, # 2 Exhibit Renick Exh. 2, # 3 Exhibit Renick Exh. 3, # 4 Exhibit Renick Exh. 4, # 5 Exhibit Renick Exh. 5)(Related document(s) 965 ) (Renick, Randy) (Filed on 6/25/2013) (Entered: 06/25/2013)
971 REPLY (re 919 MOTION to Exclude to Declaration Dr. Richard M. Drogin ) filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 6/25/2013) (Entered: 06/25/2013)
972 OBJECTIONS to re 968 Declaration in Support, 967 Declaration in Support, Under Local Rule 7−3(d)(1) by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 6/27/2013) (Entered: 06/27/2013)
973 RESPONSE (re 961 MOTION to Strike 920 Declaration in Support, of Defendant's Opposition to Class Certification ) filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 6/27/2013) (Entered: 06/27/2013)
974 RESPONSE to re 972 Objection to Rebuttal Expert Reports of Dr. Drogin and Dr. Bendick by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 6/27/2013) (Entered: 06/27/2013)
975 RESPONSE (re 963 MOTION to Strike 918 Declaration in Support,, of Mark Perry in Support of Defendant's Opposition to Class Certification ) filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 6/27/2013) (Entered: 06/27/2013)
976 Declaration of Catherine A. Conway in Support of 975 Opposition/Response to Motion to Strike Declaration of Mark Perry and Exs. A, C, D, E, H, I, J, L, M & N Thereto filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Related document(s) 975 ) (Boutrous, Theodore) (Filed on 6/27/2013) (Entered: 06/27/2013)
977 Declaration of Theane Evangelis Kapur in Support of 972 Objection to Reply Evidence Regarding Rebuttal Declarations of Marc Bendick, Jr. and Richard Drogin filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A)(Related document(s) 972 ) (Boutrous, Theodore) (Filed on 6/27/2013) (Entered: 06/27/2013)
978 ORDER Requiring Preparation for Hearing. Signed by Judge Charles R. Breyer on 06/28/2013. (crblc3S, COURT STAFF) (Filed on 6/28/2013) (Entered: 06/28/2013)
979 Minute Entry: Motion Hearing held on 6/28/2013 before Charles R. Breyer (Date Filed: 6/28/2013) re 923 MOTION to Strike Certain Declarations filed by Wal−Mart Stores, Inc., 919 MOTION to Exclude to Declaration Dr. Richard M. Drogin filed by Wal−Mart Stores, Inc., 921 MOTION for Partial Summary Judgment Against Christine Kwapnoski filed by Wal−Mart Stores, Inc., 891 MOTION to Certify Class (Redacted) filed by Edith Arana, et al., 922 MOTION for Partial Summary Judgment Against Deborah Gunter filed by Wal−Mart Stores, Inc.. (Court Reporter Lydia Zinn.) (beS, COURT STAFF) (Date Filed: 6/28/2013) (Entered: 07/01/2013)

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07/01/2013 07/01/2013
07/01/2013 07/03/2013 07/03/2013
07/08/2013 07/08/2013
07/08/2013 07/24/2013 07/30/2013 08/01/2013 08/02/2013 08/02/2013

980 TRANSCRIPT ORDER by Wal−Mart Stores, Inc. for Court Reporter Lydia Zinn. (Brass, Rachel) (Filed on 7/1/2013) (Entered: 07/01/2013)
981 Transcript of Proceedings held on 6/28/2013, before Judge Charles R. Breyer. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/30/2013. (Related documents(s) 980 ) (Zinn, Lydia) (Filed on 7/1/2013) (Entered: 07/01/2013)
982 TRANSCRIPT ORDER by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson for Court Reporter Lydia Zinn. (Webber, Christine) (Filed on 7/1/2013) (Entered: 07/01/2013)
983 REPLY (re 961 MOTION to Strike 920 Declaration in Support, of Defendant's Opposition to Class Certification ) (Lazear) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 7/3/2013) (Entered: 07/03/2013)
984 Declaration of Christine Webber in Support of 983 Reply to Opposition/Response, to Strike Testimony of Edward Lazear filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit)(Related document(s) 983 ) (Webber, Christine) (Filed on 7/3/2013) (Entered: 07/03/2013)
985 ORDER by Judge Charles R. Breyer granting 957 Administrative Motion to File Under Seal (beS, COURT STAFF) (Filed on 7/8/2013) (Entered: 07/08/2013)
986 DOCUMENT E−FILED UNDER SEAL re 942 Order on Administrative Motion to File Under Seal Exhibit A, Englebrecht Declaration by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of G Gabbard (Under Seal), # 2 Declaration of M Gonzalez (Under Seal), # 3 Declaration of M. Guajardo (Under Seal), # 4 Declaration of S Johnson (Under Seal), # 5 Declaration of R Silvana (Under Seal), # 6 Declaration of K Turner (Under Seal), # 7 Exhibit 1006−H, Perry Declaration (Under Seal))(Boutrous, Theodore) (Filed on 7/8/2013) (Entered: 07/08/2013)
987 DOCUMENT E−FILED UNDER SEAL re 985 Order on Administrative Motion to File Under Seal Wal−Mart Stores, Inc.'s Unredacted Reply in Support of Motion for Partial Summary Judgment Against Plaintiff Christine by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 7/8/2013) (Entered: 07/08/2013)
988 STIPULATION WITH PROPOSED ORDER Regarding Motion Hearing Scheduled for August 2, 2013 filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 7/24/2013) (Entered: 07/24/2013)
989 ORDER granting 988 STIPULATION WITH PROPOSED ORDER Regarding Motion Hearing Scheduled for August 2, 2013 filed by Wal−Mart Stores, Inc. The motion hearing schedule for 8/2/2013 is cancelled. Signed by Judge Charles R. Breyer on 7/29/2013. (beS, COURT STAFF) (Filed on 7/30/2013) (Entered: 07/30/2013)
990 Joint Discovery Letter Brief regarding Second Deposition of Dr. Drogin filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 8/1/2013) (Entered: 08/01/2013)
991 ORDER by Judge Charles R. Breyer denying (891) Motion to Certify Class. (crblc2, COURT STAFF) (Filed on 8/2/2013) (Entered: 08/02/2013)
ORDER by Judge Jacqueline Scott Corley granting Plaintiffs' Motion to Quash the Subpoena to Plaintiffs' Expert Dr. Drogin pending disposition of Plaintiffs' Motion for Class Certification (Dkt. No. 891) and Wal−Mart's Objections to the Rebuttal Declaration of Dr. Drogin (Dkt. No. 972).(This is a text only entry. There is no document attached).(jsclc2, COURT STAFF) (Filed on 8/2/2013) (Entered: 08/02/2013)

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08/20/2013 992 ORDER of USCA (USCA # 13−80184) acknowledging receipt of the Petition for Permission to Appeal under 23(f). (mclS, COURT STAFF) (Filed on 8/20/2013) (Entered: 08/20/2013)

09/23/2013 993 ORDER TO SHOW CAUSE. Signed by Judge Charles R. Breyer on 9/23/2013. (crblc2, COURT STAFF) (Filed on 9/23/2013) (Entered: 09/23/2013)

10/04/2013 994 RESPONSE TO 993 ORDER TO SHOW CAUSE by Wal−Mart Stores, Inc. re 921 , 922 Motions for Partial Summary Judgment. (Boutrous, Theodore) (Filed on 10/4/2013) Modified on 10/7/2013 (mclS, COURT STAFF). (Entered: 10/04/2013)

10/07/2013

995 RESPONSE TO ORDER TO SHOW CAUSE by Edith Arana, Betty Dukes, M.J. Furman, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson Plaintiffs' Response to 993 OSC re 921, 922 Motions for Partial Summary Judgment. (Lawrence, Elizabeth) (Filed on 10/7/2013) (Entered: 10/07/2013)

11/06/2013

996 MOTION to Withdraw as Attorney for Plaintiffs filed by Edith Arana, Betty Dukes, M.J. Furman, Deborah Gunter, Christine Kwapnoski, Cleo Page, Patricia Surgeson, Karen Williamson. Responses due by 11/20/2013. Replies due by 11/27/2013. (Attachments: # 1 Proposed Order)(Larkin, Jocelyn) (Filed on 11/6/2013) (Entered: 11/06/2013)

11/14/2013

997 ORDER granting 996 MOTION to Withdraw as Attorney for Plaintiffs filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Karen Williamson, M.J. Furman, Cleo Page, Patricia Surgeson, Deborah Gunter. Attorney Michael Victor Caesar terminated. Signed by Judge Charles R. Breyer on 11/8/2013. (beS, COURT STAFF) (Filed on 11/14/2013) (Entered: 11/14/2013)

11/19/2013 998 ORDER of USCA (USCA # 13−80184) : The court, in its discretion, denies the petition for permission to appeal the district court's 8/2/13 order denying class action certification. (mclS, COURT STAFF) (Filed on 11/19/2013) (Entered: 11/19/2013)

02/06/2014

999 CLERKS NOTICE (text entry only, no document associated with this entry). Case Management Statement due by 2/12/2014. Case Management Conference set for 2/14/2014 08:30 AM in Courtroom 6, 17th Floor, San Francisco. (beS, COURT STAFF) (Filed on 2/6/2014) (Entered: 02/06/2014)

02/10/2014 1000 CLERKS NOTICE vacating the CMC set for 2/14/2014 (text entry only, no document associated with this entry). (beS, COURT STAFF) (Filed on 2/10/2014) (Entered: 02/10/2014)

03/31/2014 1001 CLERKS NOTICE (text entry only, no document assosciated with this entry). Status Report due by 5/2/2014. Status Conference set for 5/9/2014 08:30 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 3/31/2014) (Entered: 03/31/2014)

05/02/2014 1002 STATUS REPORT by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Sellers, Joseph) (Filed on 5/2/2014) (Entered: 05/02/2014)

05/06/2014

1003

ORDER re 1002 Status Report filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Patricia Surgeson, Deborah Gunter, Set/Reset Deadlines as to 1002 Status Report. Case Management Conference reset for 7/11/2014 08:30 AM in Courtroom 6, 17th Floor, San Francisco. Dispositive Motions due by 1/9/2015. Responses due by 2/6/2015. Replies due by 2/20/2015. Motion Hearing set for 3/6/2015 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Pretrial Order due by 5/18/2015. Pretrial Conference set for 5/26/2015 02:30 PM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Jury Trial set for 6/1/2015 09:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Signed by Judge Charles R. Breyer on 5/5/2014. (beS, COURT STAFF) (Filed on 5/6/2014) (Entered: 05/06/2014)

06/04/2014 1004 Discovery Letter Brief filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Webber, Christine) (Filed on 6/4/2014) (Entered: 06/04/2014)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 85 of 106

06/05/2014

1005

ORDER re Discovery Letter Brief 1004 by Magistrate Judge Jacqueline Scott Corley. The parties shall file a joint letter brief outlining the issues and the parties meet and confer efforts in accordance with the Courts Standing Order by June 11, 2014. The Court will then conduct a telephonic discovery hearing on June 16, 2014 at 1:00 p.m. (shyS, COURT STAFF) (Filed on 6/5/2014) (Entered: 06/05/2014)

06/11/2014 1006 Joint Discovery Letter Brief filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Conway, Catherine) (Filed on 6/11/2014) (Entered: 06/11/2014)

06/16/2014 1007 Minute Entry: Telephonic Discovery Hearing held on 6/16/2014 before Jacqueline Scott Corley (Date Filed: 6/16/2014). (Recording #1:45 − 1:54.) (tlS, COURT STAFF) (Date Filed: 6/16/2014) (Entered: 06/16/2014)

06/17/2014 1008 ***FILED IN ERROR. PLEASE SEE DOCKET # 1012 ***

ORDER RE: DISCOVERY LETTER BRIEF by Judge Jacqueline Scott Corley. (tlS, COURT STAFF) (Filed on 6/17/2014) Modified on 6/19/2014 (tlS, COURT STAFF). (Entered: 06/17/2014)

06/17/2014

1012

ORDER RE: DISCOVERY LETTER BRIEF: re 1006 Joint Discovery Letter Brief filed by Wal−Mart Stores, Inc., 1004 Discovery Letter Brief filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Patricia Surgeson, Deborah Gunter. Signed by Judge Jacqueline Scott Corley on 6/17/2014. (tlS, COURT STAFF) (Filed on 6/17/2014) (Entered: 06/19/2014)

06/18/2014 1009 TRANSCRIPT ORDER by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson for Court Reporter FTR − San Francisco. (Webber, Christine) (Filed on 6/18/2014) (Entered: 06/18/2014)

06/18/2014 1010 TRANSCRIPT ORDER by Wal−Mart Stores, Inc. for Court Reporter FTR − San Francisco. (Brass, Rachel) (Filed on 6/18/2014) (Entered: 06/18/2014)

06/19/2014

1011

MOTION to Vacate 35 Stipulation and Order regarding preservation of documents filed by Wal−Mart Stores, Inc.. Motion Hearing set for 8/15/2014 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 7/3/2014. Replies due by 7/10/2014. (Attachments: # 1 Exhibit Exhibit A, # 2 Declaration Declaration of Mina Fielek, # 3 Declaration Declaration of Jon Blevins, # 4 Proposed Order Proposed Order)(Boutrous, Theodore) (Filed on 6/19/2014) (Entered: 06/19/2014)

06/19/2014

1013

Transcript of Proceedings of the official sound recording held on 06/16/14, before Magistrate Judge Jacqueline Scott Corley. FTR/Transcriber Echo Reporting; Tara Bauer, Telephone number (858) 453−7590; echoreporting@yahoo.com. Tape Number: FTR. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1009 Transcript Order ) Redaction Request due 7/10/2014. Redacted Transcript Deadline set for 7/21/2014. Release of Transcript Restriction set for 9/17/2014. (Related documents(s) 1009 ) (tgb, COURT STAFF) (Filed on 6/19/2014) (Entered: 06/19/2014)

07/03/2014 1014 RESPONSE (re 1011 MOTION to Vacate 35 Stipulation and Order regarding preservation of documents ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Sellers, Joseph) (Filed on 7/3/2014) (Entered: 07/03/2014)

07/03/2014 1015 CASE MANAGEMENT STATEMENT (JOINT) filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A to Case Management Statement)(Boutrous, Theodore) (Filed on 7/3/2014) (Entered: 07/03/2014)

07/10/2014 1016 CLERKS NOTICE (text entry only) Case Management Conference reset for 8/15/2014 10:00 AM in Courtroom 6, 17th Floor, San Francisco. (beS, COURT STAFF) (Filed on 7/10/2014) (Entered: 07/10/2014)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 86 of 106

07/10/2014 1017 REPLY (re 1011 MOTION to Vacate 35 Stipulation and Order regarding preservation of documents ) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Boutrous, Theodore) (Filed on 7/10/2014) (Entered: 07/10/2014)

07/18/2014 1018 Joint Discovery Letter Brief filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 7/18/2014) (Entered: 07/18/2014)

07/21/2014 1019 ORDER RE: JOINT DISCOVERY LETTER BRIEF (Dkt. No. 1018). Signed by Judge Jacqueline Scott Corley on July 21, 2014. (jsclc2S, COURT STAFF) (Filed on 7/21/2014) (Entered: 07/21/2014)

07/22/2014 1020 NOTICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson re 1019 Order of Filing a copy of the EEOC request (Attachments: # 1 Exhibit)(Sellers, Joseph) (Filed on 7/22/2014) (Entered: 07/22/2014)

07/28/2014

1021

CLERKS NOTICE, as to 1018 Joint Discovery Letter Brief. Discovery Hearing set for 8/7/2014 09:00 AM in Courtroom F, 15th Floor, San Francisco before Magistrate Judge Jacqueline Scott Corley. This is a text only entry. There is no document associated with this notice. (tlS, COURT STAFF) (Filed on 7/28/2014) (Entered: 07/28/2014)

08/01/2014 1022 MOTION to Appear by Telephone filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 8/1/2014) (Entered: 08/01/2014)

08/01/2014

1023

Order by Magistrate Judge Jacqueline Scott Corley granting 1022 Plaintiff's counsel − Christine Webber's Motion to Appear by Telephone for 8/7/2014 hearing. Counsel shall contact Court Call at 1−888−882−6878 to make arrangements to appear by telephone.(tlS, COURT STAFF) (Filed on 8/1/2014) (Entered: 08/01/2014)

08/07/2014 1024 Minute Entry: Discovery Hearing held on 8/7/2014 before Jacqueline Scott Corley (Date Filed: 8/7/2014). (Recording #9:03 − 9:14.) (tlS, COURT STAFF) (Date Filed: 8/7/2014) (Entered: 08/07/2014)

08/07/2014 1025 Order by Magistrate Judge Jacqueline Scott Corley denying 1018 Discovery Letter Brief.(jsclc2, COURT STAFF) (Filed on 8/7/2014) (Entered: 08/07/2014)

08/15/2014 1026 TRANSCRIPT ORDER by Wal−Mart Stores, Inc. for Court Reporter Lydia Zinn. (Brass, Rachel) (Filed on 8/15/2014) (Entered: 08/15/2014)

08/15/2014

1027

Transcript of Proceedings held on 08/15/2014, before Judge Charles R. Breyer. Court Reporter/Transcriber Lydia Zinn, Telephone number (415) 531−6587. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1026 Transcript Order ) Release of Transcript Restriction set for 11/13/2014. (Related documents(s) 1026 ) (Zinn, Lydia) (Filed on 8/15/2014) (Entered: 08/15/2014)

08/15/2014

1028

Minute Entry: Motion Hearing held on 8/15/2014 before Charles R. Breyer (Date Filed: 8/15/2014) re 1011 MOTION to Vacate 35 Stipulation and Order regarding preservation of documents filed by Wal−Mart Stores, Inc., ***Motions terminated: 1011 MOTION to Vacate 35 Stipulation and Order regarding preservation of documents filed by Wal−Mart Stores, Inc... (Court Reporter Lydia Zinn.) (beS, COURT STAFF) (Date Filed: 8/15/2014) (Entered: 08/15/2014)

08/19/2014 1029 TRANSCRIPT ORDER by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson for Court Reporter Lydia Zinn. (Webber, Christine) (Filed on 8/19/2014) (Entered: 08/19/2014)

09/18/2014 1030 Joint Discovery Letter Brief filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A) 06/27/2014 Letter, # 2 Exhibit B) 07/18/2014 Letter, # 3 Exhibit C) Notice of Deposition, Arana, # 4 Exhibit D) Notice of Deposition, Dukes, # 5 Exhibit E) Notice of Deposition, Kwapnoski, # 6 Exhibit F) Notice of Deposition, Surgeson, # 7

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 87 of 106

Exhibit G) Notice of Deposition, Gunter, # 8 Exhibit H) 08/26/2014 Letter, # 9 Declaration Randy Renick in Support of Plaintiffs' Statement, # 10 Exhibit 1, Renick Decl'n) Case Management Order [Dkt. 41])(Conway, Catherine) (Filed on 9/18/2014) (Entered: 09/18/2014)

09/19/2014 1031 NOTICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson Notice of Firm Name Change (Renick, Randy) (Filed on 9/19/2014) (Entered: 09/19/2014)

09/19/2014 1032 NOTICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson Notice of Withdrawal of Individual Counsel (Richardson, Anne) (Filed on 9/19/2014) (Entered: 09/19/2014)

09/19/2014 1033 NOTICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson Notice of Lodging of Depostion Transcripts (Renick, Randy) (Filed on 9/19/2014) (Entered: 09/19/2014)

09/19/2014 1034 ORDER RE: JOINT DISCOVERY LETTER BRIEF RE: PLAINTIFFS' DEPOSITIONS. Signed by Magistrate Judge Jacqueline Scott Corley on 9/19/2014. (ahm, COURT STAFF) (Filed on 9/19/2014) (Entered: 09/19/2014)

10/09/2014

1035

Proposed MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 305, receipt number 25HUI9Q2.) Filing fee previously paid on 10/09/14 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Certificate of Good Standing)(Caiola, Michelle) (Filed on 10/9/2014) (Entered: 10/09/2014)

10/21/2014 1036 ORDER by Judge Charles R. Breyer granting 1035 Motion for Pro Hac Vice (M Caiola) (beS, COURT STAFF) (Filed on 10/21/2014) (Entered: 10/21/2014)

11/17/2014 1037 STIPULATION WITH PROPOSED ORDER MODIFYING CASE MANAGEMENT SCHEDULE filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration Webber Decl.)(Webber, Christine) (Filed on 11/17/2014) (Entered: 11/17/2014)

11/18/2014

1038

ORDER granting 1037 STIPULATION MODIFYING CASE MANAGEMENT SCHEDULE filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Patricia Surgeson, Deborah Gunter (as modified). Dispositive Motions due by 4/3/2015. Responses due by 5/1/2015. Replies due by 5/15/2015. Motion Hearing set for 6/5/2015 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Pretrial Order due by 8/21/2015. Pretrial Conference set for 8/28/2015 02:30 PM before Hon. Charles R. Breyer. Jury Selection/Jury Trial set for 9/8/2015 09:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer, Signed by Judge Charles R. Breyer on 11/18/2014. (beS, COURT STAFF) (Filed on 11/18/2014) (Entered: 11/18/2014)

12/15/2014

1039

** CORRECTION: This is a transcript order for the FTR hearing held before JSC (not JCS) on 8/7/14. ** TRANSCRIPT ORDER by Wal−Mart Stores, Inc. for Court Reporter FTR − San Francisco. (Brass, Rachel) (Filed on 12/15/2014) Modified on 12/15/2014 (djc, COURT STAFF). (Entered: 12/15/2014)

12/16/2014

1040

Transcript of Proceedings of the official sound recording held on 08/07/14, before Magistrate Judge Jacqueline Scott Corley. FTR/Transcriber Echo Reporting, Inc., Telephone number (858) 453−7590.;echoreporting@yahoo.com. Tape Number: FTR 9:03 − 9:14. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1039 Transcript Order, ) Redaction Request due 1/6/2015. Redacted Transcript Deadline set for 1/16/2015. Release of Transcript Restriction set for 3/16/2015. (Related documents(s) 1039 ) (tgb, COURT STAFF) (Filed on 12/16/2014) (Entered: 12/16/2014)

01/26/2015 1041 Joint Discovery Letter Brief filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A − Notice of Deposition − 30(b)(6), # 2 Exhibit B − 11/25/2014 Letter, # 3

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 88 of 106

Exhibit C − 12/31/2014 Letter, # 4 Exhibit D − 01/09/2015 Letter, # 5 Exhibit E − Guidelines, # 6 Exhibit F − Guidelines, # 7 Exhibit G − Guidelines, # 8 Exhibit H − Deposition excerpt, Butler, # 9 Exhibit IDeposition excerpt, Van Allen, # 10 Exhibit JDeposition excerpt, Miller, # 11 Exhibit K − Guidelines)(Conway, Catherine) (Filed on 1/26/2015) (Entered: 01/26/2015)

01/29/2015

1042

CLERK'S NOTICE Scheduling Discovery Hearing. TO ALL PARTIES AND COUNSEL OF RECORD: Please take notice that a discovery hearing is scheduled for February 3, 2015 at 9:00 a.m., before Magistrate Judge Jacqueline Scott Corley, in Courtroom F, 15th Floor, Federal Building, 450 Golden Gate Avenue in San Francisco.

(This is a text only docket entry, there is no document associated with this notice.)

(ahm, COURT STAFF) (Filed on 1/29/2015) (Entered: 01/29/2015)

01/30/2015 1043 MOTION to Appear by Telephone of Christine Webber filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Webber, Christine) (Filed on 1/30/2015) (Entered: 01/30/2015)

01/30/2015 1044 ORDER by Magistrate Judge Jacqueline Scott Corley granting 1043 Motion to Appear by Telephone. Counsel shall contact Court Call at 1−888−882−6878 to make the arrangements to appear by telephone. (ahm, COURT STAFF) (Filed on 1/30/2015) (Entered: 01/30/2015)

02/03/2015

1045

Minute Entry for proceedings held before Magistrate Judge Jacqueline Scott Corley: Discovery Hearing held on 2/3/2015.FTR Time 8:59 − 9:19. Plaintiff Attorney Christine Webber (by phone). Defendant Attorney Mark Perry; Jenna Musselman Yott. Attachment Civil Discovery Minutes − 2/3/2015.(tlS, COURT STAFF) (Date Filed: 2/3/2015) (Entered: 02/03/2015)

02/03/2015 1046 TRANSCRIPT ORDER by Wal−Mart Stores, Inc. for Court Reporter FTR − San Francisco. (Brass, Rachel) (Filed on 2/3/2015) (Entered: 02/03/2015)

02/03/2015 1047 Order by Magistrate Judge Jacqueline Scott Corley RE: JOINT DISCOVERY LETTER BRIEF 1041 .(jsclc2, COURT STAFF) (Filed on 2/3/2015) (Entered: 02/03/2015)

02/04/2015

1048

Transcript of Proceedings of the official sound recording held on 02/03/15, before Magistrate Judge Jacqueline Scott Corley. FTR/Transcriber Echo Reporting, Inc., Telephone number (858) 453−7590.;echoreporting@yahoo.com. Tape Number: FTR 8:59 − 9:19. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1046 Transcript Order ) Redaction Request due 2/25/2015. Redacted Transcript Deadline set for 3/9/2015. Release of Transcript Restriction set for 5/5/2015. (Related documents(s) 1046 ) (tgb, COURT STAFF) (Filed on 2/4/2015) (Entered: 02/04/2015)

02/10/2015

1049

STIPULATION WITH PROPOSED ORDER re 1038 Order,,, Set Motion and Deadlines/Hearings,,, Set Deadlines,,, Terminate Motions,,, Set Hearings,, Stipulated Request and [Proposed] Order Modifying Case Management Schedule filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration Mark Perry In Support of Schedule Modification)(Conway, Catherine) (Filed on 2/10/2015) (Entered: 02/10/2015)

02/10/2015 1050 ORDER by Magistrate Judge Jacqueline Scott Corley granting 1049 Stipulation Modifying Case Management Schedule (ahm, COURT STAFF) (Filed on 2/10/2015) (Entered: 02/10/2015)

03/19/2015 1051 STIPULATION WITH PROPOSED ORDER re 35 Stipulation and Order Regarding RETENTION OF INFORMATION filed by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 3/19/2015) (Entered: 03/19/2015)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 89 of 106

03/24/2015 1052 ORDER by Judge Charles R. Breyer granting 1051 Stipulation Regarding RETENTION OF INFORMATION. (beS, COURT STAFF) (Filed on 3/24/2015) (Entered: 03/24/2015)

04/01/2015 1053 STIPULATION WITH PROPOSED ORDER re 1050 Order on Stipulation re Modifying Case Management Schedule filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Mark Perry)(Conway, Catherine) (Filed on 4/1/2015) (Entered: 04/01/2015)

04/02/2015 1054 ORDER by Magistrate Judge Jacqueline Scott Corley granting 1053 Stipulation Modifying Case Management Schedule (ahm, COURT STAFF) (Filed on 4/2/2015) (Entered: 04/02/2015)

04/09/2015 1055 STIPULATION WITH PROPOSED ORDER re 1054 Order on Stipulation Modifying Case Management Schedule filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration Catherine A. Conway)(Conway, Catherine) (Filed on 4/9/2015) (Entered: 04/09/2015)

04/09/2015 1056 MOTION for Leave to File Excess Pages filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Exhibit Stipulation Re Filing Extra Pages, # 2 Proposed Order)(Conway, Catherine) (Filed on 4/9/2015) (Entered: 04/09/2015)

04/10/2015

1057

MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/5/2015 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 5/8/2015. Replies due by 5/20/2015. (Attachments: # 1 Proposed Order)(Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015 1058 ORDER by Judge Charles R. Breyer granting 1055 Stipulation Modifying Case Management Schedule (beS, COURT STAFF) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015 1059 ORDER by Judge Charles R. Breyer granting 1056 Motion for Leave to File Excess Pages (beS, COURT STAFF) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1060

MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/5/2015 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 5/8/2015. Replies due by 5/20/2015. (Attachments: # 1 Declaration of Mary Beth Lewis (Redacted), # 2 Declaration of Donald Taylor (Redacted), # 3 Declaration of Michelle Medlin (Redacted), # 4 Exhibit 1, Medlin Declaration (Redacted), # 5 Exhibit 2, Medlin Declaration (Redacted), # 6 Exhibit 3, Medlin Declaration (Redacted), # 7 Exhibit 4, Medlin Declaration (Redacted), # 8 Exhibit 5, Medlin Declaration (Redacted), # 9 Exhibit 6, Medlin Declaration (Redacted), # 10 Exhibit 7, Medlin Declaration (Redacted))(Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015 1061 Proposed Order re 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief by Wal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1062

MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/5/2015 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 5/8/2015. Replies due by 5/20/2015. (Attachments: # 1 Declaration of Ryan Puryear (Redacted), # 2 Declaration of Shastina Wilkins (Redacted), # 3 Proposed Order)(Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1063

Declaration of TERRY ENGLEBRECHT in Support of 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief, 1062 MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief, 1057 MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages [ ] MOTION for Partial Summary Judgment Against Plaintiffs Surgeson, Arana, and Gunter on Their Second Claim for Relief filed byWal−Mart Stores, Inc.. (Attachments: # 1 A, Englebrecht Declaration (Redacted), # 2 B (1 of 5), Englebrecht Declaration (Redacted), # 3 B (2 of 5), Englebrecht Declaration (Redacted), # 4 B (3

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 90 of 106

of 5), Englebrecht Declaration (Redacted), # 5 B (4 of 5), Englebrecht Declaration (Redacted), # 6 B (1 of 5), Englebrecht Declaration (Redacted), # 7 C, Englebrecht Declaration (Redacted), # 8 D, Englebrecht Declaration (Redacted), # 9 E, Englebrecht Declaration (Redacted), # 10 F, Englebrecht Declaration (Redacted), # 11 G, Englebrecht Declaration (Redacted), # 12 H, Englebrecht Declaration (Redacted), # 13 I, Englebrecht Declaration (Redacted))(Related document(s) 1060 , 1062 , 1057 ) (Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1064

Declaration of PAULA VACCARO in Support of 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief, 1062 MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief, 1057 MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages [ ] MOTION for Partial Summary Judgment Against Plaintiffs Surgeson, Arana, and Gunter on Their Second Claim for Relief filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1, Vaccaro Declaration (Redacted), # 2 Exhibit 2, Vaccaro Declaration (Redacted))(Related document(s) 1060 , 1062 , 1057 ) (Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1065

Declaration of LISA RILEY in Support of 1062 MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief, 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief, 1057 MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages [ ] MOTION for Partial Summary Judgment Against Plaintiffs Surgeson, Arana, and Gunter on Their Second Claim for Relief filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, Riley Declaration, # 2 Exhibit B, Riley Declaration, # 3 Exhibit C, Riley Declaration, # 4 Exhibit D, Riley Declaration, # 5 Exhibit E, Riley Declaration, # 6 Exhibit F, Riley Declaration, # 7 Exhibit G, Riley Declaration, # 8 Exhibit H, Riley Declaration, # 9 Exhibit I, Riley Declaration, # 10 Exhibit J, Riley Declaration, # 11 Exhibit K, Riley Declaration, # 12 Exhibit L, Riley Declaration, # 13 Exhibit M, Riley Declaration, # 14 Exhibit N, Riley Declaration, # 15 Exhibit O, Riley Declaration, # 16 Exhibit P, Riley Declaration, # 17 Exhibit Q, Riley Declaration, # 18 Exhibit R, Riley Declaration, # 19 Exhibit S, Riley Declaration, # 20 Exhibit T, Riley Declaration, # 21 Exhibit U, Riley Declaration, # 22 Exhibit V, Riley Declaration, # 23 Exhibit W, Riley Declaration, # 24 Exhibit X, Riley Declaration, # 25 Exhibit Y, Riley Declaration, # 26 Exhibit Z, Riley Declaration, # 27 Exhibit AA (1 of 3), Riley Declaration, # 28 Exhibit AA (2 of 3), Riley Declaration, # 29 Exhibit AA (3 of 3), Riley Declaration, # 30 Exhibit BB, Riley Declaration, # 31 Exhibit CC, Riley Declaration, # 32 Exhibit DD, Riley Declaration, # 33 Exhibit EE, Riley Declaration, # 34 Exhibit FF, Riley Declaration, # 35 Exhibit GG, Riley Declaration, # 36 Exhibit HH, Riley Declaration)(Related document(s) 1062 , 1060 , 1057 ) (Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1066

Declaration of RACHEL S. BRASS in Support of 1062 MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief, 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief, 1057 MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages [ ] MOTION for Partial Summary Judgment Against Plaintiffs Surgeson, Arana, and Gunter on Their Second Claim for Relief filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1, Brass Declaration (Redacted), # 2 Exhibit 2, Brass Declaration (Redacted), # 3 Exhibit 3, Brass Declaration (Redacted), # 4 Exhibit 4, Brass Declaration (Redacted), # 5 Exhibit 5, Brass Declaration (Redacted), # 6 Exhibit 6, Brass Declaration, # 7 Exhibit 7, Brass Declaration, # 8 Exhibit 8, Brass Declaration, # 9 Exhibit 9, Brass Declaration, # 10 Exhibit 10, Brass Declaration (Redacted), # 11 Exhibit 11, Brass Declaration (Redacted), # 12 Exhibit 12, Brass Declaration, # 13 Exhibit 13, Brass Declaration (Redacted), # 14 Exhibit 14, Brass Declaration (Redacted), # 15 Exhibit 15, Brass Declaration (Redacted), # 16 Exhibit 16, Brass Declaration, # 17 Exhibit 17, Brass Declaration, # 18 Exhibit 18, Brass Declaration, # 19 Exhibit 19, Brass Declaration, # 20 Exhibit 20, Brass Declaration, # 21 Exhibit 21, Brass Declaration (Redacted), # 22 Exhibit 22, Brass Declaration (Redacted), # 23 Exhibit 23, Brass Declaration, # 24 Exhibit 24, Brass Declaration, # 25 Exhibit 25, Brass Declaration, # 26 Exhibit 26, Brass Declaration (Redacted), # 27 Exhibit 27, Brass Declaration, # 28 Exhibit 28, Brass Declaration, # 29 Exhibit 29,

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 91 of 106

Brass Declaration (Redacted), # 30 Exhibit 30 (1 of 3), Brass Declaration (Redacted), # 31 Exhibit 30 (2 of 3), Brass Declaration (Redacted), # 32 Exhibit 30 (3 of 3), Brass Declaration (Redacted), # 33 Exhibit 31, Brass Declaration (Redacted), # 34 Exhibit 32, Brass Declaration (Redacted), # 35 Exhibit 33, Brass Declaration (Redacted), # 36 Exhibit 34, Brass Declaration (Redacted), # 37 Exhibit 35, Brass Declaration (Redacted), # 38 Exhibit 36, Brass Declaration (Redacted), # 39 Exhibit 37, Brass Declaration (Redacted), # 40 Exhibit 38, Brass Declaration (Redacted), # 41 Exhibit 39, Brass Declaration (Redacted), # 42 Exhibit 40, Brass Declaration (Redacted), # 43 Exhibit 41, Brass Declaration, # 44 Exhibit 42, Brass Declaration, # 45 Exhibit 43 (1 of 2), Brass Declaration (Redacted), # 46 Exhibit 43 (2 of 2), Brass Declaration (Redacted), # 47 Exhibit 44, Brass Declaration (Redacted), # 48 Exhibit 45, Brass Declaration (Redacted), # 49 Exhibit 46, Brass Declaration (Redacted), # 50 Exhibit 47, Brass Declaration (Redacted), # 51 Exhibit 48, Brass Declaration (Redacted), # 52 Exhibit 49, Brass Declaration (Redacted), # 53 Exhibit 50, Brass Declaration (Redacted), # 54 Exhibit 51, Brass Declaration (Redacted), # 55 Exhibit 52, Brass Declaration (Redacted), # 56 Exhibit 53, Brass Declaration (Redacted), # 57 Exhibit 54, Brass Declaration, # 58 Exhibit 55, Brass Declaration, # 59 Exhibit 56, Brass Declaration)(Related document(s) 1062 , 1060 , 1057 ) (Boutrous, Theodore) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1067

Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motions for Partial Summary Judgment and supporting documents filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration Rachel S. Brass In Support of Administrative Motion to Seal, # 2 Exhibit Redacted Motion for Partial Summary Judgment re Kwapnoski 1060 , # 3 Exhibit Redacted Motion for Partial Summary Judgment re Dukes 1062 , # 4 Exhibit Unredacted Motion for Partial Summary Judgment re Kwapnoski 1060 , # 5 Exhibit Unredacted Motion for Partial Summary Judgment re Dukes 1062 , # 6 Proposed Order)(Conway, Catherine) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/10/2015

1068

EXHIBITS re 1067 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motions for Partial Summary Judgment and supporting documents filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, Englebrecht Declaration (Redacted), # 2 Exhibit B (1 of 5), Englebrecht Declaration (Redacted), # 3 Exhibit B (2 of 5), Englebrecht Declaration (Redacted), # 4 Exhibit B (3 of 5), Englebrecht Declaration (Redacted), # 5 Exhibit B (4 of 5), Englebrecht Declaration (Redacted), # 6 Exhibit B (5 of 5), Englebrecht Declaration (Redacted), # 7 Errata C, Englebrecht Declaration (Redacted), # 8 Exhibit D, Englebrecht Declaration (Redacted), # 9 Exhibit E, Englebrecht Declaration (Redacted), # 10 Exhibit F, Englebrecht Declaration (Redacted), # 11 Exhibit G, Englebrecht Declaration (Redacted), # 12 Exhibit H, Englebrecht Declaration (Redacted), # 13 Exhibit I, Englebrecht Declaration (Redacted), # 14 Exhibit A, Englebrecht Declaration (Unredacted), # 15 Exhibit B, Englebrecht Declaration (Unredacted), # 16 Exhibit C, Englebrecht Declaration (Unredacted), # 17 Exhibit D, Englebrecht Declaration (Unredacted), # 18 Exhibit E, Englebrecht Declaration (Unredacted), # 19 Exhibit F, Englebrecht Declaration (Unredacted), # 20 Exhibit G, Englebrecht Declaration (Unredacted), # 21 Exhibit H, Englebrecht Declaration (Unredacted), # 22 Exhibit I, Englebrecht Declaration (Unredacted), # 23 Declaration of Paula Vaccaro (Redacted), # 24 Exhibit 1, Vaccaro Declaration (Redacted), # 25 Exhibit 2, Vaccaro Declaration (Redacted), # 26 Declaration of Paula Vaccaro (Unredacted), # 27 Exhibit 1 (1 of 2), Vaccaro Declaration (Unedacted), # 28 Exhibit 1 (2 of 2), Vaccaro Declaration (Unedacted), # 29 Exhibit 2, Vaccaro Declaration (Unedacted), # 30 Declaration of Lisa Riley (Redacted), # 31 Exhibit K, Riley Declaration (Redacted), # 32 Exhibit S, Riley Declaration (Redacted), # 33 Exhibit X, Riley Declaration (Redacted), # 34 Exhibit Z, Riley Declaration (Redacted), # 35 Exhibit DD, Riley Declaration (Redacted), # 36 Exhibit FF, Riley Declaration (Redacted), # 37 Declaration of Lisa Riley (Unredacted), # 38 Exhibit K, Riley Declaration (Unredacted), # 39 Exhibit S, Riley Declaration (Redacted), # 40 Exhibit X, Riley Declaration (Redacted), # 41 Exhibit Z, Riley Declaration (Redacted), # 42 Exhibit DD, Riley Declaration (Redacted), # 43 Exhibit FF, Riley Declaration (Redacted), # 44 Declaration of Michelle Medlin (Redacted), # 45 Exhibit 1, Medlin Declaration (Redacted), # 46 Exhibit 2, Medlin Declaration (Redacted), # 47 Exhibit 3, Medlin Declaration (Redacted), # 48 Exhibit 4, Medlin Declaration (Redacted), # 49 Exhibit 5, Medlin Declaration (Redacted), # 50 Exhibit 6, Medlin Declaration (Redacted), # 51 Exhibit 7, Medlin Declaration (Redacted), # 52 Declaration of Michelle Medlin (Unredacted), # 53 Exhibit 1, Medlin Declaration (Unredacted), # 54 Exhibit 2, Medlin Declaration (Unredacted), #

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 92 of 106

55 Exhibit 3, Medlin Declaration (Unredacted), # 56 Exhibit 4, Medlin Declaration (Unredacted), # 57 Exhibit 5, Medlin Declaration (Unredacted), # 58 Exhibit 6, Medlin Declaration (Unredacted), # 59 Exhibit 7, Medlin Declaration (Unredacted), # 60 Declaration of Donald Taylor (Redacted), # 61 Declaration of Mary Beth Lewis (Redacted), # 62 Declaration of Donald Taylor (Unredacted), # 63 Declaration of Mary Beth Lewis (Unredacted), # 64 Declaration of Ryan Puryear (Redacted), # 65 Declaration of Shastina Wilkins (Redacted), # 66 Declaration of Ryan Puryear (Unredacted), # 67 Declaration of Shastina Wilkins (Unredacted))(Related document(s) 1067 ) (Conway, Catherine) (Filed on 4/10/2015) (Entered: 04/10/2015)

04/11/2015

1069

EXHIBITS re 1067 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motions for Partial Summary Judgment and supporting documents filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1, Brass Declaration (Redacted), # 2 Exhibit 2, Brass Declaration (Redacted), # 3 Exhibit 3, Brass Declaration (Redacted), # 4 Exhibit 4, Brass Declaration (Redacted), # 5 Exhibit 5, Brass Declaration (Redacted), # 6 Exhibit 10, Brass Declaration (Redacted), # 7 Exhibit 11, Brass Declaration (Redacted), # 8 Exhibit 13, Brass Declaration (Redacted), # 9 Exhibit 14, Brass Declaration (Redacted), # 10 Exhibit 15, Brass Declaration (Redacted), # 11 Exhibit 21, Brass Declaration (Redacted), # 12 Exhibit 22, Brass Declaration (Redacted), # 13 Exhibit 26, Brass Declaration (Redacted), # 14 Exhibit 27, Brass Declaration (Redacted), # 15 Exhibit 29, Brass Declaration (Redacted), # 16 Exhibit 30 (1 of 3), Brass Declaration (Redacted), # 17 Exhibit 30 (2 of 3), Brass Declaration (Redacted), # 18 Exhibit 30 (3 of 3), Brass Declaration (Redacted), # 19 Exhibit 31, Brass Declaration (Redacted), # 20 Exhibit 33, Brass Declaration (Redacted), # 21 Exhibit 34, Brass Declaration (Redacted), # 22 Exhibit 35, Brass Declaration (Redacted), # 23 Exhibit 36, Brass Declaration (Redacted), # 24 Exhibit 37, Brass Declaration (Redacted), # 25 Exhibit 40, Brass Declaration (Redacted), # 26 Exhibit 43 (1 of 2), Brass Declaration (Redacted), # 27 Exhibit 43 (2 of 2), Brass Declaration (Redacted), # 28 Exhibit 44, Brass Declaration (Redacted), # 29 Exhibit 45, Brass Declaration (Redacted), # 30 Exhibit 46, Brass Declaration (Redacted), # 31 Exhibit 47, Brass Declaration (Redacted), # 32 Exhibit 48, Brass Declaration (Redacted), # 33 Exhibit 49, Brass Declaration (Redacted), # 34 Exhibit 50, Brass Declaration (Redacted), # 35 Exhibit 51, Brass Declaration (Redacted), # 36 Exhibit 52, Brass Declaration (Redacted), # 37 Exhibit 53, Brass Declaration (Redacted), # 38 Exhibit 1, Brass Declaration (Unredacted), # 39 Exhibit 2, Brass Declaration (Unredacted), # 40 Exhibit 3, Brass Declaration (Unredacted), # 41 Exhibit 4, Brass Declaration (Unredacted), # 42 Exhibit 5, Brass Declaration (Unredacted), # 43 Exhibit 10, Brass Declaration (Unredacted), # 44 Exhibit 11, Brass Declaration (Unredacted), # 45 Exhibit 13, Brass Declaration (Unredacted), # 46 Exhibit 14, Brass Declaration (Unredacted), # 47 Exhibit 15, Brass Declaration (Unredacted), # 48 Exhibit 21, Brass Declaration (Unredacted), # 49 Exhibit 22, Brass Declaration (Unredacted), # 50 Exhibit 26, Brass Declaration (Unredacted), # 51 Exhibit 27, Brass Declaration (Unredacted), # 52 Exhibit 29, Brass Declaration (Unredacted), # 53 Exhibit 30 (1 of 3), Brass Declaration (Unredacted), # 54 Exhibit 30 (2 of 3), Brass Declaration (Unredacted), # 55 Exhibit 30 (3 of 3), Brass Declaration (Unredacted), # 56 Exhibit 31, Brass Declaration (Unredacted), # 57 Exhibit 33, Brass Declaration (Unredacted), # 58 Exhibit 34, Brass Declaration (Unredacted), # 59 Exhibit 35, Brass Declaration (Unredacted), # 60 Exhibit 36, Brass Declaration (Unredacted), # 61 Exhibit 37, Brass Declaration (Unredacted), # 62 Exhibit 38, Brass Declaration (Unredacted), # 63 Exhibit 40, Brass Declaration (Unredacted), # 64 Exhibit 43, Brass Declaration (Unredacted), # 65 Exhibit 44, Brass Declaration (Unredacted), # 66 Exhibit 45, Brass Declaration (Unredacted), # 67 Exhibit 46, Brass Declaration (Unredacted), # 68 Exhibit 47, Brass Declaration (Unredacted), # 69 Exhibit 48, Brass Declaration (Unredacted), # 70 Exhibit 49, Brass Declaration (Unredacted), # 71 Exhibit 50, Brass Declaration (Unredacted), # 72 Exhibit 51, Brass Declaration (Unredacted), # 73 Exhibit 52, Brass Declaration (Unredacted), # 74 Exhibit 53, Brass Declaration (Unredacted))(Related document(s) 1067 ) (Conway, Catherine) (Filed on 4/11/2015) (Entered: 04/11/2015)

04/14/2015

1070

Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motion for Partial Summary Judgment Against Surgeson, Arana, and Gunter and supporting documents filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Rachel S. Brass In Support of Administrative Motion to File Under Seal, # 2 Proposed Order, # 3 Exhibit Redacted Motion for Partial Summary Judgment Against Surgeson, Arana, and Gunter, # 4 Exhibit Unredacted Motion for Partial Summary Judgment Against

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 93 of 106

Surgeson, Arana, and Gunter)(Conway, Catherine) (Filed on 4/14/2015) (Entered: 04/14/2015)

04/14/2015

1071

Declaration of Michele L. Maryott re 1070 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motion for Partial Summary Judgment Against Surgeson, Arana, and Gunter and supporting documents filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1, Maryott Declaration (Redacted), # 2 Exhibit 2, Maryott Declaration (Redacted), # 3 Exhibit 6, Maryott Declaration (Redacted), # 4 Exhibit 7, Maryott Declaration (Redacted), # 5 Exhibit 8, Maryott Declaration (Redacted), # 6 Exhibit 12, Maryott Declaration (Redacted), # 7 Exhibit 14, Maryott Declaration (Redacted), # 8 Exhibit 15, Maryott Declaration (Redacted), # 9 Exhibit 16, Maryott Declaration (Redacted), # 10 Exhibit 17, Maryott Declaration (Redacted), # 11 Exhibit 18, Maryott Declaration (Redacted), # 12 Exhibit 19, Maryott Declaration (Redacted), # 13 Exhibit 20, Maryott Declaration (Redacted), # 14 Exhibit 21, Maryott Declaration (Redacted), # 15 Exhibit 22, Maryott Declaration (Redacted), # 16 Exhibit 24, Maryott Declaration (Redacted), # 17 Exhibit 26, Maryott Declaration (Redacted), # 18 Exhibit 1, Maryott Declaration (Unredacted), # 19 Exhibit 2, Maryott Declaration (Unredacted), # 20 Exhibit 6, Maryott Declaration (Unredacted), # 21 Exhibit 7, Maryott Declaration (Unredacted), # 22 Exhibit 8, Maryott Declaration (Unredacted), # 23 Exhibit 12, Maryott Declaration (Unredacted), # 24 Exhibit 14, Maryott Declaration (Unredacted), # 25 Exhibit 15, Maryott Declaration (Unredacted), # 26 Exhibit 16, Maryott Declaration (Unredacted), # 27 Exhibit 17, Maryott Declaration (Unredacted), # 28 Exhibit 18, Maryott Declaration (Unredacted), # 29 Exhibit 19, Maryott Declaration (Unredacted), # 30 Exhibit 20, Maryott Declaration (Unredacted), # 31 Exhibit 21, Maryott Declaration (Unredacted), # 32 Exhibit 22, Maryott Declaration (Unredacted), # 33 Exhibit 24, Maryott Declaration (Unredacted), # 34 Exhibit 26, Maryott Declaration (Unredacted))(Related document(s) 1070 ) (Conway, Catherine) (Filed on 4/14/2015) Modified on 4/15/2015 (mclS, COURT STAFF). (Entered: 04/14/2015)

04/14/2015

1072

MOTION for Partial Summary Judgment Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter on Their Second Claim for Relief filed by Wal−Mart Stores, Inc.. Motion Hearing set for 6/5/2015 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 5/11/2015. Replies due by 5/20/2015. (Attachments: # 1 Declaration of Michele Maryott, # 2 Exhibit 1, Maryott Declaration (Redacted), # 3 Exhibit 2, Maryott Declaration (Redacted), # 4 Exhibit 3, Maryott Declaration, # 5 Exhibit 4, Maryott Declaration, # 6 Exhibit 5, Maryott Declaration, # 7 Exhibit 6, Maryott Declaration (Redacted), # 8 Exhibit 7, Maryott Declaration (Redacted), # 9 Exhibit 8, Maryott Declaration (Redacted), # 10 Exhibit 9, Maryott Declaration, # 11 Exhibit 10, Maryott Declaration, # 12 Exhibit 11, Maryott Declaration, # 13 Exhibit 12, Maryott Declaration (Redacted), # 14 Exhibit 13, Maryott Declaration, # 15 Exhibit 14, Maryott Declaration (Redacted), # 16 Exhibit 15, Maryott Declaration (Redacted), # 17 Exhibit 16, Maryott Declaration (Redacted), # 18 Exhibit 17, Maryott Declaration (Redacted), # 19 Exhibit 18, Maryott Declaration (Redacted), # 20 Exhibit 19, Maryott Declaration (Redacted), # 21 Exhibit 20, Maryott Declaration (Redacted), # 22 Exhibit 21, Maryott Declaration (Redacted), # 23 Exhibit 22, Maryott Declaration (Redacted), # 24 Exhibit 23, Maryott Declaration, # 25 Exhibit 24, Maryott Declaration (Redacted), # 26 Exhibit 25, Maryott Declaration, # 27 Exhibit 26, Maryott Declaration (Redacted), # 28 Proposed Order)(Boutrous, Theodore) (Filed on 4/14/2015) (Entered: 04/14/2015)

04/30/2015 1073 NOTICE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson of Withdrawal of Individual Counsel for Plaintiffs (Attachments: # 1 Proposed Order)(Webber, Christine) (Filed on 4/30/2015) (Entered: 04/30/2015)

05/07/2015

1074

ORDER re 1073 Notice of Withdrawal of Individual Counsel filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Patricia Surgeson, Deborah Gunter. Attorney Peter Romer−Friedman terminated. Signed by Judge Charles R. Breyer on 5/4/2015. (beS, COURT STAFF) (Filed on 5/7/2015) (Entered: 05/07/2015)

05/08/2015

1075

RESPONSE (re 1057 MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration of Christine Webber, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit, # 12 Exhibit,

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 94 of 106

# 13 Exhibit, # 14 Exhibit, # 15 Exhibit, # 16 Exhibit, # 17 Exhibit, # 18 Exhibit, # 19 Exhibit, # 20 Exhibit, # 21 Exhibit, # 22 Exhibit, # 23 Exhibit, # 24 Exhibit, # 25 Exhibit, # 26 Exhibit, # 27 Exhibit, # 28 Exhibit, # 29 Exhibit, # 30 Exhibit, # 31 Exhibit, # 32 Exhibit, # 33 Exhibit, # 34 Exhibit, # 35 Exhibit, # 36 Exhibit, # 37 Exhibit, # 38 Exhibit, # 39 Exhibit, # 40 Exhibit, # 41 Exhibit, # 42 Exhibit, # 43 Exhibit, # 44 Exhibit, # 45 Exhibit, # 46 Exhibit, # 47 Exhibit, # 48 Exhibit)(Webber, Christine) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015

1076

RESPONSE (re 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration Kwapnoski, # 2 Declaration Lawrence, # 3 Exhibit A (redacted) to Lawrence Dec., # 4 Exhibit B to Lawrence Dec, # 5 Exhibit C to Lawrence Dec, # 6 Exhibit D to Lawrence Dec, # 7 Exhibit E to Lawrence Dec, # 8 Exhibit F to Lawrence Dec, # 9 Exhibit G to Lawrence Dec, # 10 Exhibit H to Lawrence Dec, # 11 Exhibit I to Lawrence Dec, # 12 Exhibit J to Lawrence Dec, # 13 Exhibit K to Lawrence Dec, # 14 Exhibit L to Lawrence Dec, # 15 Exhibit M (redacted) to Lawrence Dec, # 16 Proposed Order)(Lawrence, Elizabeth) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015

1077

Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration of Lawrence ISO Admin Motion, # 2 Proposed Order, # 3 Redacted Version of Kwapnoski's Opposition, # 4 Unredacted Version of Kwapnoski Opposition, # 5 Redacted Version Exhibit A to Lawrence Dec, # 6 Unredacted Version Exhibit A to Lawrence Dec, # 7 Redacted Version Exhibit M to Lawrence Dec, # 8 Unredacted Version Exhibit M to Lawrence Dec)(Lawrence, Elizabeth) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015

1078

RESPONSE (re 1062 MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief ) filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Proposed Order [PROPOSED] ORDER RE PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFF BETTY DUKES)(Renick, Randy) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015

1079

Declaration of Randy Renick in Support of 1078 Opposition/Response to Motion, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Related document(s) 1078 ) (Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1080

EXHIBITS re 1079 Declaration in Support, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit to Renick Decl., # 2 Exhibit to Renick Decl., # 3 Exhibit to Renick Decl., # 4 Exhibit to Renick Decl., # 5 Exhibit to Renick Decl., # 6 Exhibit to Renick Decl., # 7 Exhibit to Renick Decl., # 8 Exhibit to Renick Decl.)(Related document(s) 1079 ) (Renick, Randy) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015

1081

EXHIBITS re 1079 Declaration in Support, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit to Renick Decl., # 2 Exhibit to Renick Decl., # 3 Exhibit to Renick Decl., # 4 Exhibit to Renick Decl., # 5 Exhibit to Renick Decl., # 6 Exhibit to Renick Decl., # 7 Exhibit to Renick Decl., # 8 Exhibit to Renick Decl., # 9 Exhibit to Renick Decl., # 10 Exhibit to Renick Decl., # 11 Exhibit to Renick Decl.)(Related document(s) 1079 ) (Renick, Randy) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015

1082

EXHIBITS re 1079 Declaration in Support, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit to Renick Decl., # 2 Exhibit to Renick Decl., # 3 Exhibit to Renick Decl., # 4 Exhibit to Renick Decl., # 5 Exhibit to Renick Decl., # 6 Exhibit to Renick Decl., # 7 Exhibit to Renick Decl., # 8 Exhibit to Renick Decl., # 9 Exhibit to Renick Decl., # 10 Exhibit to Renick Decl., # 11 Exhibit to Renick Decl.)(Related document(s) 1079 ) (Renick, Randy) (Filed on 5/8/2015) (Entered: 05/08/2015)

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05/08/2015

1083

EXHIBITS re 1079 Declaration in Support, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit to Renick Decl., # 2 Exhibit to Renick Decl., # 3 Exhibit to Renick Decl., # 4 Exhibit to Renick Decl., # 5 Exhibit to Renick Decl., # 6 Exhibit to Renick Decl., # 7 Exhibit to Renick Decl., # 8 Exhibit to Renick Decl., # 9 Exhibit to Renick Decl., # 10 Exhibit to Renick Decl., # 11 Exhibit to Renick Decl., # 12 Exhibit to Renick Decl.)(Related document(s) 1079 ) (Renick, Randy) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015 1084 OBJECTIONS to re 1078 Opposition/Response to Motion, by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015 1085 Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration, # 2 Proposed Order, # 3 Exhibit Ex. 2, # 4 Exhibit Ex. 2−A)(Renick, Randy) (Filed on 5/8/2015) (Entered: 05/08/2015)

05/08/2015 1086 *** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 6)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1087

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 7A, # 2 Exhibit Ex. 8, # 3 Exhibit Ex. 8A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1088

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 9A, # 2 Exhibit Ex. 10, # 3 Exhibit Ex. 10A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1089

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit 11A, # 2 Exhibit Ex. 12, # 3 Exhibit Ex. 12A, # 4 Exhibit Ex. 13, # 5 Exhibit Ex. 13A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1090

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 14A, # 2 Exhibit Ex. 15, # 3 Exhibit Ex. 15A, # 4 Exhibit Ex. 16, # 5 Exhibit Ex. 16A, # 6 Exhibit Ex. 17, # 7 Exhibit Ex. 17A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1091

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 18A, # 2 Exhibit Ex. 19, # 3 Exhibit Ex. 19A, # 4 Exhibit Ex. 20, # 5 Exhibit Ex. 20A, # 6 Exhibit Ex. 21, # 7 Exhibit Ex. 21A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1092

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 22A, # 2 Exhibit Ex. 23, # 3 Exhibit Ex. 23A, # 4 Exhibit Ex. 24, # 5 Exhibit Ex. 24A, # 6 Exhibit Ex. 25, # 7 Exhibit Ex. 25A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1093

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 26A, # 2 Exhibit Ex. 27, # 3 Exhibit Ex. 27A, # 4 Exhibit Ex. 28, # 5 Exhibit Ex. 28A, # 6 Exhibit Ex. 29, # 7 Exhibit Ex. 29A, # 8 Exhibit Ex. 30, # 9 Exhibit Ex. 30A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 96 of 106

05/08/2015

1094

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 31A, # 2 Exhibit Ex. 32, # 3 Exhibit Ex. 32A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1095

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 33, # 2 Exhibit Ex. 33A, # 3 Exhibit Ex. 34, # 4 Exhibit Ex. 34A, # 5 Exhibit Ex. 35, # 6 Exhibit Ex. 35A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015 1096 *** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 3A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1097

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 36A, # 2 Exhibit Ex. 37, # 3 Exhibit Ex. 37A, # 4 Exhibit Ex. 38, # 5 Exhibit Ex. 38A, # 6 Exhibit Ex. 39, # 7 Exhibit Ex. 39A, # 8 Exhibit Ex. 40, # 9 Exhibit Ex. 40A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015 1098 *** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 3C)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015 1099 *** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015 1100 *** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015 1101 *** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015 1102 *** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1103

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 41A, # 2 Exhibit Ex. 42, # 3 Exhibit Ex. 42A, # 4 Exhibit Ex. 43, # 5 Exhibit Ex. 43A, # 6 Exhibit Ex. 44, # 7 Exhibit Ex. 44A, # 8 Exhibit Ex. 45, # 9 Exhibit Ex. 45A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1104

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 46A, # 2 Exhibit Ex. 47, # 3 Exhibit Ex. 47A, # 4 Exhibit Ex. 48, # 5 Exhibit Ex. 48A, # 6 Exhibit Ex. 49, # 7 Exhibit Ex. 49A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/08/2015)

05/08/2015

1105

*** ERRONEOUS ENTRY *** Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Ex. 50A, # 2 Exhibit Ex. 51, # 3 Exhibit Ex. 51A)(Renick, Randy) (Filed on 5/8/2015) Modified on 5/11/2015 (mclS, COURT STAFF). (Entered: 05/09/2015)

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05/11/2015 1106 EXHIBITS re 1079 Declaration in Support, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Exh. 4, # 2 Exhibit Exh. 5a, # 3 Exhibit Exh. 5b)(Related document(s) 1079 ) (Renick, Randy) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/11/2015

1107

EXHIBITS re 1085 Administrative Motion to File Under Seal filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Exh. 2, # 2 Exhibit Ex. 3a, # 3 Exhibit Ex. 3b, # 4 Exhibit Ex. 3c, # 5 Exhibit Ex. 3d, # 6 Exhibit Ex. 3e, # 7 Exhibit Ex. 3f, # 8 Exhibit Ex. 3g, # 9 Exhibit Exs. 6−24, # 10 Exhibit Exs. 25−32, # 11 Exhibit Exs. 33−38, # 12 Exhibit Exhs. 39−43, # 13 Exhibit Exhs. 44−51)(Related document(s) 1085 ) (Renick, Randy) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/11/2015 1108 NOTICE of Appearance by Sarah T Grossman−Swenson Plaintiffs, Betty Dukes, Patricia Surgeson, Edith Arana, Deborah Gunter and Christine Kwapnoski (Grossman−Swenson, Sarah) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/11/2015

1109

RESPONSE (re 1072 MOTION for Partial Summary Judgment Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter on Their Second Claim for Relief ) Plaintiffs' Opposition filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Proposed Order, # 2 Declaration of Sarah Grossman−Swenson, # 3 Exhibit A to SGS Dec., # 4 Exhibit B to SGS Dec., # 5 Exhibit C to SGS Dec.)(Lawrence, Elizabeth) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/11/2015

1110

EXHIBITS re 1109 Opposition/Response to Motion,, Exhibit D to SGS Dec. Part 1 filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit D to SGS Dec. Part 2, # 2 Exhibit D to SGS Dec. Part 3)(Related document(s) 1109 ) (Lawrence, Elizabeth) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/11/2015

1111

EXHIBITS re 1110 Exhibits, 1109 Opposition/Response to Motion,, filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit F to SGS Dec., # 2 Exhibit G to SGS Dec., # 3 Exhibit H to SGS Dec., # 4 Exhibit I to SGS Dec., # 5 Exhibit J to SGS Dec., # 6 Exhibit K to SGS Dec., # 7 Exhibit L to SGS Dec., # 8 Exhibit M to SGS Dec)(Related document(s) 1110 , 1109 ) (Lawrence, Elizabeth) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/11/2015

1112

EXHIBITS re 1109 Opposition/Response to Motion,, Exhibit N to SGS Dec. filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit O to SGS Dec., # 2 Exhibit P to SGS Dec., # 3 Exhibit Q to SGS Dec., # 4 Exhibit R to SGS Dec., # 5 Exhibit S to SGS Dec., # 6 Exhibit T to SGS Dec., # 7 Exhibit U to SGS Dec.)(Related document(s) 1109 ) (Lawrence, Elizabeth) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/11/2015

1113

Administrative Motion to File Under Seal filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Proposed Order, # 2 Declaration of Elizabeth Lawrence ISO Admin. Motion, # 3 Redacted Version of Plaintiffs Opp., # 4 unredacted version of Plaintiffs Opp., # 5 Redacted version of Exhibit A, # 6 Unredacted version of Exhibit A, # 7 Redacted Version of Exhibit C, # 8 Unredacted Version of Exhibit C, # 9 Redacted Version of Exhibit E, # 10 Unredacted Version of Exhibit E, # 11 Redacted Version of Exhibit F, # 12 Unredacted Version of Exhibit F, # 13 redacted Version of Exhibit G, # 14 Unredacted Version of Exhibit G, # 15 Redacted Version of Exhibit K, # 16 Unredacted Version of Exhibit K, # 17 Redacted Version of Exhibit L, # 18 Unredacted Version of Exhibit L, # 19 Redacted Version of Exhibit R, # 20 Unredacted Version of Exhibit R, # 21 Redacted Version of Exhibit T, # 22 Unredacted Version of Exhibit T, # 23 Redacted Version of Exhibit U, # 24 Unredacted Version of Exhibit U)(Lawrence, Elizabeth) (Filed on 5/11/2015) (Entered: 05/11/2015)

05/15/2015

1114

Declaration of JENNA M. YOTT in Support of 1077 Administrative Motion to File Under Seal , 1113 Administrative Motion to File Under Seal , 1085 Administrative Motion to File Under Seal filed byWal−Mart Stores, Inc.. (Attachments: # 1 Proposed Order)(Related document(s) 1077 , 1113 , 1085 ) (Brass, Rachel) (Filed on 5/15/2015) (Entered: 05/15/2015)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 98 of 106

05/20/2015 1115 RESPONSE (re 1057 MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages ) filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/20/2015 1116 REPLY (re 1062 MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief ) filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/20/2015 1117 REPLY (re 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief ) (Redacted) filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/20/2015

1118

*** ERRONEOUS ENTRY. SEE 1119 *** REPLY (re 1070 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motion for Partial Summary Judgment Against Surgeson, Arana, and Gunter and supporting documents ) (Redacted) filed byWal−Mart Stores, Inc. (Boutrous, Theodore) (Filed on 5/20/2015) Modified on 5/21/2015 (mclS, COURT STAFF). (Entered: 05/20/2015)

05/20/2015 1119 REPLY (re 1072 MOTION for Partial Summary Judgment Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter on Their Second Claim for Relief ) Redacted and Linked to Correct Document filed byWal−Mart Stores, Inc.. (Boutrous, Theodore) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/20/2015

1120

Declaration of BRANDYN ZOBEL in Support of 1117 Reply to Opposition/Response, 1116 Reply to Opposition/Response, 1119 Reply to Opposition/Response, (REDACTED) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit A, Zobel Decl'n, # 2 Exhibit B, Zobel Decl'n, # 3 Exhibit C, Zobel Decl'n, # 4 Exhibit D, Zobel Decl'n, # 5 Exhibit E, Zobel Decl'n, # 6 Exhibit F, Zobel Decl'n, # 7 Exhibit G, Zobel Decl'n, # 8 Exhibit H, Zobel Decl'n, # 9 Exhibit I, Zobel Decl'n, # 10 Exhibit J, Zobel Decl'n, # 11 Exhibit K, Zobel Decl'n, # 12 Exhibit L, Zobel Decl'n, # 13 Exhibit M, Zobel Decl'n, # 14 Exhibit N, Zobel Decl'n, # 15 Exhibit O, Zobel Decl'n)(Related document(s) 1117 , 1116 , 1119 ) (Boutrous, Theodore) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/20/2015

1121

Declaration of MARK A. PERRY in Support of 1117 Reply to Opposition/Response, 1116 Reply to Opposition/Response, 1119 Reply to Opposition/Response, (Public Version) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Exhibit 1, Perry Declaration, # 2 Exhibit 2, Perry Declaration, # 3 Exhibit 3, Perry Declaration, # 4 Exhibit 4, Perry Declaration, # 5 Exhibit 5, Perry Declaration, # 6 Exhibit 6, Perry Declaration, # 7 Exhibit 7, Perry Declaration, # 8 Exhibit 8, Perry Declaration, # 9 Exhibit 9, Perry Declaration, # 10 Exhibit 10, Perry Declaration, # 11 Exhibit 11, Perry Declaration, # 12 Exhibit 12, Perry Declaration, # 13 Exhibit 13, Perry Declaration, # 14 Exhibit 14, Perry Declaration, # 15 Exhibit 15, Perry Declaration, # 16 Exhibit 16, Perry Declaration, # 17 17, Perry Declaration)(Related document(s) 1117 , 1116 , 1119 ) (Boutrous, Theodore) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/20/2015

1122

Administrative Motion to File Under Seal filed by Wal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Catherine A. Conway In Support of Administrative Motion to Seal, # 2 Proposed Order Text, # 3 Declaration of Brandyn Zobel in Support of 1116 , 1117 , 1119 (Redacted), # 4 Exhibit A, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 5 Exhibit B, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 6 Exhibit C, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 7 Exhibit D, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 8 Exhibit E, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 9 Exhibit F, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 10 Exhibit G, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 11 Exhibit H, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 12 Exhibit I, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 13 Exhibit J, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 14 Exhibit K, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 15 Exhibit L, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 16 Exhibit M, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 17 Exhibit N, Zobel Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 18 Declaration of Brandyn Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 19 Exhibit A, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 20 Exhibit B, Zobel Declaration in Support of 1116 , 1117 ,

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 99 of 106

1119 (Unredacted), # 21 Exhibit C, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 22 Exhibit D, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 23 Exhibit E, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 24 Exhibit F, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 25 Exhibit G, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 26 Exhibit H, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 27 Exhibit I, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 28 Exhibit J, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 29 Exhibit K, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 30 Exhibit L, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 31 Exhibit M, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 32 Exhibit N, Zobel Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 33 Exhibit 4, Perry Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 34 Exhibit 5, Perry Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 35 Exhibit 7, Perry Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 36 Exhibit 8, Perry Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 37 Exhibit 10, Perry Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 38 Exhibit 13, Perry Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 39 Exhibit 15, Perry Declaration in Support of 1116 , 1117 , 1119 (Redacted), # 40 Exhibit 4, Perry Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 41 Exhibit 5, Perry Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 42 Exhibit 7, Perry Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 43 Exhibit 8, Perry Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 44 Exhibit 10, Perry Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 45 Exhibit 13, Perry Declaration in Support of 1116 , 1117 , 1119 (Unredacted), # 46 Exhibit 15, Perry Declaration in Support of 1116 , 1117 , 1119 (Unredacted))(Conway, Catherine) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/20/2015

1123

EXHIBITS re 1122 Administrative Motion to File Under Seal filed byWal−Mart Stores, Inc.. (Attachments: # 1 Redacted Reply Brief re Christine Kwapnoski, # 2 Redacted Reply Brief re Patricia Surgeson, Edith Arana, and Deborah Gunter, # 3 Unredacted Reply Brief regarding Betty Dukes, # 4 Unredacted Reply Brief regarding Christine Kwapnoksi, # 5 Unredacted Reply Brief regarding Patricia Surgeson, Edith Arana, and Deborah Gunter)(Related document(s) 1122 ) (Conway, Catherine) (Filed on 5/20/2015) (Entered: 05/20/2015)

05/22/2015 1124 NOTICE of Change of Address by Jennifer Abby Reisch for Equal Rights Advocates (Reisch, Jennifer) (Filed on 5/22/2015) (Entered: 05/22/2015)

05/26/2015

1125

STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d In Support of Oppositions to Defendant's Motion for Summary Judgment filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit A)(Related document(s) 1109 , 1075 , 1078 , 1076 ) (Lawrence, Elizabeth) (Filed on 5/26/2015) (Entered: 05/26/2015)

06/04/2015

1126

*** FILED IN ERROR WITH CONFIDENTIAL INFORMATION. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. *** ERRATA re 1113 Administrative Motion to File Under Seal Re Dkt. 1113−14 (Unredacted Version of Exhibit G) by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Grossman−Swenson, Sarah) (Filed on 6/4/2015) Modified on 6/4/2015 (fff, COURT STAFF). (Entered: 06/04/2015)

06/04/2015 1127 ERRATA re 1113 Administrative Motion to File Under Seal re DKT. 1113−14 (Exhibit G) by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit G (redacted))(Grossman−Swenson, Sarah) (Filed on 6/4/2015) (Entered: 06/04/2015)

06/04/2015

1128

EXHIBITS re 1113 Administrative Motion to File Under Seal Per Notice of Errata filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit G (redacted), # 2 Exhibit G (unredacted))(Related document(s) 1113 ) (Grossman−Swenson, Sarah) (Filed on 6/4/2015) (Entered: 06/04/2015)

06/05/2015 1129 ORDER re all pending administrative motions to seal. Signed by Judge Charles R. Breyer on 06/05/2015. (crblc2, COURT STAFF) (Filed on 6/5/2015) (Entered: 06/05/2015)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 100 of 106

06/05/2015 1130 TRANSCRIPT ORDER by Wal−Mart Stores, Inc. for Court Reporter Pam Batalo. (Brass, Rachel) (Filed on 6/5/2015) (Entered: 06/05/2015)

06/05/2015 1131 MOTION to Remove Incorrectly Filed Document Re Docket No. 1126 filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration, # 2 Proposed Order)(Grossman−Swenson, Sarah) (Filed on 6/5/2015) (Entered: 06/05/2015)

06/05/2015

1133

Minute Entry for proceedings held before Hon. Charles R. Breyer: Motion Hearing held on 6/5/2015 re 1060 MOTION for Partial Summary Judgment Against Plaintiff Christine Kwapnoski on Her Second Claim for Relief filed by Wal−Mart Stores, Inc., 1062 MOTION for Partial Summary Judgment Against Plaintiff Betty Dukes on Her Second and Third Claims for Relief filed by Wal−Mart Stores, Inc., 1057 MOTION for Partial Summary Judgment on Plaintiffs' First Claim for Relief and Prayer for Punitive Damages filed by Wal−Mart Stores, Inc., 1072 MOTION for Partial Summary Judgment Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter on Their Second Claim for Relief filed by Wal−Mart Stores, Inc. Supplemental Case Management Statement due by 9/3/2015. Status Conference set for 9/10/2015 08:30 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Court Reporter: Pamela Batalo. Plaintiff Attorney Randy Renick, Christine Wheeler, Sheila Thomas Defendant Attorney Mark Perry, Rachael Brass This is a text only Minute Entry (beS, COURT STAFF) (Date Filed: 6/5/2015) (Entered: 06/08/2015)

06/08/2015 1132 TRANSCRIPT ORDER by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson for Court Reporter Pam Batalo. (Webber, Christine) (Filed on 6/8/2015) (Entered: 06/08/2015)

06/10/2015

1134

ORDER by Judge Charles R. Breyer granting in part and denying in part: 1057 Motion for Partial Summary Judgment, 1060 Motion for Partial Summary Judgment, 1062 Motion for Partial Summary Judgment, 1072 Motion for Partial Summary Judgment. (crblc2, COURT STAFF) (Filed on 6/10/2015) (Entered: 06/10/2015)

06/12/2015

1135

Transcript of Proceedings held on June 5, 2015, before Judge Breyer. Court Reporter Pamela A. Batalo, Telephone number 626−688−7509; pamela_batalo@cand.uscourts.gov. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re 1132 Transcript Order, 1130 Transcript Order ) Redaction Request due 7/6/2015. Redacted Transcript Deadline set for 7/13/2015. Release of Transcript Restriction set for 9/10/2015. (Related documents(s) 1132 , 1130 ) (Batalo, Pam) (Filed on 6/12/2015) (Entered: 06/12/2015)

06/15/2015 1136 ORDER by Judge Charles R. Breyer granting 1131 Motion to Remove Incorrectly Filed Document (beS, COURT STAFF) (Filed on 6/15/2015) (Entered: 06/15/2015)

06/17/2015

1137

EXHIBITS re 1077 Administrative Motion to File Under Seal Opposition to SJ Against Kwapnoski (redacted) Pursuant to Dkt. 1134 filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Opposition to SJ Against Kwapnoski (unredacted), *** # 2 Exhibit A (redacted) to Lawrence Dec. DOCUMENT LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** , # 3 Exhibit A (unredacted) to Lawrence Dec., # 4 Exhibit M (redacted) to Lawrence Dec., # 5 Exhibit M (unredacted) to Lawrence Dec.)(Related document(s) 1077 ) (Grossman−Swenson, Sarah) (Filed on 6/17/2015) Modified on 6/22/2015 (ewn, COURT STAFF). (Entered: 06/17/2015)

06/17/2015 1138 *** DOCUMENTS 2, 4, 6, 12, 17, 19 LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** EXHIBITS re 1113 Administrative Motion to File Under Seal Pls. Opposition (redacted) to SJ Against Surgeson, Arana, and Gunter Pursuant Dkt. 1134 filed

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 101 of 106

byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Opposition (unredacted) to SJ Against Surgeson, Arana, and Gunter, # 2 Exhibit A to SGS Dec. (redacted), # 3 Exhibit A to SGS Dec. (unredacted), # 4 Exhibit C to SGS Dec. (redacted), # 5 Exhibit C to SGS Dec. (unredacted), # 6 Exhibit E to SGS Dec. (redacted), # 7 Exhibit E to SGS Dec. (unredacted), # 8 Exhibit F to SGS Dec. (redacted), # 9 Exhibit F to SGS Dec. (unredacted), # 10 Exhibit G to SGS Dec. (redacted), # 11 Exhibit G to SGS Dec. (unredacted), # 12 Exhibit K to SGS Dec. (redacted), # 13 Exhibit K to SGS Dec. (unredacted), # 14 Exhibit L to SGS Dec. (redacted), # 15 Exhibit L to SGS Dec. (unredacted), # 16 Exhibit R to SGS Dec. (no redactions), # 17 Exhibit T to SGS Dec. (redacted), # 18 Exhibit T to SGS Dec. (unredacted), # 19 Exhibit U to SGS Dec. (redacted), # 20 Exhibit U to SGS Dec. (unredacted))(Related document(s) 1113 ) (Grossman−Swenson, Sarah) (Filed on 6/17/2015) Modified on 6/22/2015 (ewn, COURT STAFF). (Entered: 06/17/2015)

06/17/2015

1139

EXHIBITS re 1070 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motion for Partial Summary Judgment Against Surgeson, Arana, and Gunter and supporting documents, 1122 Administrative Motion to File Under Seal , 1067 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motions for Partial Summary Judgment and supporting documents ; DECLARATION OF JENNA YOTT IN RESPONSE TO ORDER REGARDING ADMINISTRATIVE MOTIONS TO SEAL (ECF NO. 1129) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Brandyn Zobel In Support of Response to 1129 Order Regarding Administrative Motions to File Under Seal, # 2 Wal−Mart Stores, Inc.s Notice of Motion and Motion for Partial Summary Judgement Against Plaintiff Betty Dukes (Redacted), # 3 Wal−Mart Stores, Inc.s Notice of Motion and Motion for Partial Summary Judgement Against Plaintiff Betty Dukes (Unredacted), # 4 Wal−Mart Stores, Inc.s Notice of Motion and Motion for Partial Summary Judgement Against Plaintiff Christine Kwapnoski (Redacted), # 5 Wal−Mart Stores, Inc.s Notice of Motion and Motion for Partial Summary Judgement Against Plaintiff Christine Kwapnoski (Unredacted), # 6 Wal−Mart Stores, Inc.s Notice of Motion and Motion for Partial Summary Judgement Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter (Redacted), # 7 Wal−Mart Stores, Inc.s Notice of Motion and Motion for Partial Summary Judgement Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter (Unredacted), # 8 Declaration of PURYEAR Ryan (Redacted), # 9 Declaration of PURYEAR Ryan (Unredacted), # 10 Declaration of WILKINS Shastina, # 11 Declaration of LEWIS Mary Beth, # 12 Declaration of TAYLOR Donald (Redacted), # 13 Declaration of TAYLOR Donald (Unredacted), # 14 Exhibit 1, Brass Decln 1066 (Redacted), # 15 Exhibit 1, Brass Decln 1066 (Unredacted), # 16 Exhibit 2, Brass Decln, # 17 Exhibit 3, Brass Decln, # 18 Exhibit 4, Brass Decln, # 19 Exhibit 5, Brass Decln (Redacted), # 20 Exhibit 5, Brass Decln (Unredacted), # 21 Exhibit 10, Brass Decln, # 22 Exhibit 11, Brass Decln (Redacted), # 23 Exhibit 11, Brass Decln (Unredacted), # 24 Exhibit 15, Brass Decln (Redacted), # 25 Exhibit 15, Brass Decln (Unredacted), # 26 Exhibit 26, Brass Decln (Redacted), # 27 Exhibit 26, Brass Decln (Unredacted), # 28 Exhibit 27, Brass Decln (Redacted), # 29 Exhibit 27, Brass Decln (Unredacted), # 30 Exhibit 29, Brass Decln (Redacted), # 31 Exhibit 29, Brass Decln (Unredacted), # 32 Exhibit 30 (1 of 3), Brass Decln, # 33 Exhibit 30 (2 of 3), Brass Decln, # 34 Exhibit 30 (3 of 3), Brass Decln, # 35 Exhibit 31, Brass Decln, # 36 Exhibit 33, Brass Decln (Redacted), # 37 Exhibit 33, Brass Decln (Unredacted), # 38 Exhibit 34, Brass Decln (Redacted), # 39 Exhibit 34, Brass Decln (Unredacted), # 40 Exhibit 35, Brass Decln (Redacted), # 41 Exhibit 35, Brass Decln (Unredacted), # 42 Exhibit 36, Brass Decln, # 43 Exhibit 37, Brass Decln (Redacted), # 44 Exhibit 37, Brass Decln (Unredacted), # 45 Exhibit 38, Brass Decln (Redacted), # 46 Exhibit 38, Brass Decln (Unredacted), # 47 Exhibit 40, Brass Decln, # 48 Exhibit 43, Brass Decln (Redacted), # 49 Exhibit 43, Brass Decln (Unredacted), # 50 Exhibit 1, Maryott Decln 1071 (Redacted), # 51 Exhibit 1, Maryott Decln 1071 (Unredacted), # 52 Exhibit 2 (1 of 2), Maryott Decln, # 53 Exhibit 2 (2 of 2), Maryott Decln, # 54 Exhibit 6, Maryott Decln, # 55 Exhibit 14, Maryott Decln, # 56 Exhibit 15, Maryott Decln (Redacted), # 57 Exhibit 15, Maryott Decln (Unredacted), # 58 Exhibit 16, Maryott Decln (Redacted), # 59 Exhibit 16, Maryott Decln (Unredacted), # 60 Exhibit 17, Maryott Decln (Redacted), # 61 Exhibit 17, Maryott Decln (Unredacted), # 62 Exhibit 19, Maryott Decln (Redacted), # 63 Exhibit 19, Maryott Decln (Unredacted), # 64 Exhibit 21, Maryott Decln (Redacted), # 65 Exhibit 21, Maryott Decln (Unredacted), # 66 Exhibit 22, Maryott Decln (Redacted), # 67 Exhibit 22, Maryott Decln (Unredacted), # 68 Exhibit 24, Maryott Decln (Redacted), # 69 Exhibit 24, Maryott Decln

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 102 of 106

(Unredacted), # 70 Exhibit 26, Maryott Decln (Redacted), # 71 Exhibit 26, Maryott Decln (Unredacted), # 72 Exhibit A, Englebrecht Decln 1063 , # 73 Exhibit E, Englebrecht Decln 1063 , # 74 Exhibit F, Englebrecht Decln 1063 , # 75 Declaration of MEDLIN Michelle, # 76 Exhibit 1, Medlin Decln (Redacted), # 77 Exhibit 1, Medlin Decln (Unredacted), # 78 Exhibit 2, Medlin Decln (Redacted), # 79 Exhibit 2, Medlin Decln (Unredacted), # 80 Exhibit 3, Medlin Decln (Redacted), # 81 Exhibit 3, Medlin Decln (Unredacted), # 82 Exhibit 4, Medlin Decln (Redacted), # 83 Exhibit 4, Medlin Decln (Unredacted), # 84 Exhibit 5, Medlin Decln (Redacted), # 85 Exhibit 5, Medlin Decln (Unredacted), # 86 Exhibit 6, Medlin Decln (Redacted), # 87 Exhibit 6, Medlin Decln (Unredacted), # 88 Exhibit 7, Medlin Decln (Redacted), # 89 Exhibit 7, Medlin Decln (Unredacted), # 90 Declaration of RILEY Lisa (Redacted), # 91 Declaration of RILEY Lisa (Unredacted), # 92 Exhibit K, Riley Decln (Redacted), # 93 Exhibit K, Riley Decln (Unredacted), # 94 Exhibit S, Riley Decln, # 95 Exhibit X, Riley Decln, # 96 Exhibit Z, Riley Decln, # 97 Exhibit DD, Riley Decln, # 98 Exhibit FF, Riley Decln, # 99 Declaration of VACCARO Paula (Redacted), # 100 Declaration of VACCARO Paula (Unredacted), # 101 Exhibit 2, Vaccaro Decln)(Related document(s) 1070 , 1122 , 1067 ) (Brass, Rachel) (Filed on 6/17/2015) (Entered: 06/17/2015)

06/17/2015

1140

EXHIBITS re 1122 Administrative Motion to File Under Seal , 1067 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motions for Partial Summary Judgment and supporting documents, 1070 Administrative Motion to File Under Seal Wal−Mart Stores, Inc. Motion for Partial Summary Judgment Against Surgeson, Arana, and Gunter and supporting documents ; DECLARATION OF JENNA YOTT IN RESPONSE TO ORDER REGARDING ADMINISTRATIVE MOTIONS TO SEAL (ECF NO. 1129) filed byWal−Mart Stores, Inc.. (Attachments: # 1 Declaration of Brandyn Zobel In Support of Wal−Marts Response to 1129 Order Regarding Administrative Motions to File Under Seal, # 2 Wal−Mart Stores, Inc.'s Reply in Support of Motion for Partial Summary Judgement Against Plaintiff Betty Dukes (Redacte), # 3 Wal−Mart Stores, Inc.'s Reply in Support of Motion for Partial Summary Judgement Against Plaintiff Betty Dukes (Unredacted), # 4 Wal−Mart Stores, Inc.'s Reply in Support of Motion for Partial Summary Judgement Against Plaintiff Christine Kwapnoski (Redacted), # 5 Wal−Mart Stores, Inc.'s Reply in Support of Motion for Partial Summary Judgement Against Plaintiff Christine Kwapnoski (Unredacted), # 6 Wal−Mart Stores, Inc.'s Reply in Support of Motion for Partial Summary Judgement Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter (Redacted), # 7 Wal−Mart Stores, Inc.'s Reply in Support of Motion for Partial Summary Judgement Against Plaintiffs Patricia Surgeson, Edith Arana, and Deborah Gunter (Unredacted), # 8 Exhibit 5, Perry Decln 1121 (Redacted), # 9 Exhibit 5, Perry Decln 1121 (Unredacted), # 10 Exhibit 7, Perry Decln (Redacted), # 11 Exhibit 7, Perry Decln (Unredacted), # 12 Exhibit 8, Perry Decln (Redacted), # 13 Exhibit 8, Perry Decln (Unredacted), # 14 Exhibit 13, Perry Decln (Redacted), # 15 Exhibit 13, Perry Decln (Unredacted), # 16 Declaration of Brandyn Zobel In Support of Wal−Marts Reply (Redacted), # 17 Declaration of Brandyn Zobel In Support of Wal−Marts (Unredacted), # 18 Exhibit B, Zobel Decln In Support of Reply (Redacted), # 19 Exhibit B, Zobel Decln In Support of Reply (Unredacted), # 20 Exhibit C, Zobel Decln In Support of Reply (Redacted), # 21 Exhibit C, Zobel Decln In Support of Reply (Unredacted))(Related document(s) 1122 , 1067 , 1070 ) (Brass, Rachel) (Filed on 6/17/2015) (Entered: 06/17/2015)

06/19/2015

1141

*** DOCUMENTS 5, 13 LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** EXHIBITS re 1085 Administrative Motion to File Under Seal filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Unredacted version of PLAINTIFFS MOTION AND MEMORANDUM IN SUPPORT OF CLASS CERTIFICATION, # 2 Exhibit Unredacted version of Exh. 2, # 3 Exhibit Redacted version of Exh. 2, # 4 Exhibit Exh. 6, # 5 Exhibit Exh. 7, # 6 Exhibit Exh. 8, # 7 Exhibit Exh. 9, # 8 Exhibit Exh. 10, # 9 Exhibit Unredacted version of Ex. 11, # 10 Exhibit Redacted version of Ex. 11, # 11 Exhibit Unredacted version of Ex. 12, # 12 Exhibit Redacted version of Exh. 12, # 13 Exhibit Exh. 13, # 14 Exhibit Unredacted version of Ex. 14, # 15 Exhibit Redacted version of Ex. 14, # 16 Exhibit Unredacted version of Exh. 15, # 17 Exhibit Redacted version of Ex. 15, # 18 Exhibit Unredacted version of Ex. 16, # 19 Exhibit Redacted version of Ex. 16, # 20 Exhibit Unredacted version of Ex. 17, # 21 Exhibit Redacted version of Ex. 17, # 22 Exhibit Unredacted version of Ex. 18, # 23 Exhibit Redacted version of Ex. 18, #

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 103 of 106

24 Exhibit Unredacted version of Ex. 19, # 25 Exhibit Redacted version of Ex. 19, # 26 Exhibit Unredacted version of Ex. 20, # 27 Exhibit Redacted version of Ex. 20)(Related document(s) 1085 ) (Renick, Randy) (Filed on 6/19/2015) Modified on 6/22/2015 (ewn, COURT STAFF). (Entered: 06/19/2015)

06/19/2015

1142

*** DOCUMENTS 11, 13, 15, 17, 19, 21, 23, 26, 28, 30, 32, 34, 36, 38, 40, 42, 44, 46, 47, 53, 55, 57 LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** EXHIBITS re 1085 Administrative Motion to File Under Seal filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Unredacted version of Ex. 21, # 2 Exhibit Unredacted version of Ex. 22, # 3 Exhibit Redacted version of Ex. 22, # 4 Exhibit Unredacted version of Ex. 23, # 5 Exhibit Unredacted version of Ex. 23, # 6 Exhibit Unredacted version of Ex. 24, # 7 Exhibit Redacted version of Ex. 24, # 8 Exhibit Unredacted version of Ex. 25, # 9 Exhibit Redacted version of Ex. 25, # 10 Exhibit Unredacted version of Ex. 26, # 11 Exhibit Redacted version of Ex. 26, # 12 Exhibit Unredacted version of Ex. 27, # 13 Exhibit Redacted version of Ex. 27, # 14 Exhibit Unredacted version of Ex. 28, # 15 Exhibit Redacted version of Ex. 28, # 16 Exhibit Unredacted version of Ex. 29, # 17 Exhibit Redacted version of Ex. 29, # 18 Exhibit Unredacted version of Ex. 30, # 19 Exhibit Redacted version of Ex. 30, # 20 Exhibit Unredacted version of Ex. 32, # 21 Exhibit Redacted version of Ex. 32, # 22 Exhibit Unredacted version of Ex. 33, # 23 Exhibit Redacted version of Ex. 34, # 24 Exhibit Unredacted version of Ex. 34, # 25 Exhibit Unredacted version of Ex. 35, # 26 Exhibit Redacted version of Ex. 35, # 27 Exhibit Unredacted version of Ex. 36, # 28 Exhibit Redacted version of Ex. 36, # 29 Exhibit Unredacted version of Ex. 37, # 30 Exhibit Redacted version of Ex. 37, # 31 Exhibit Unredacted version of Ex. 38, # 32 Exhibit Redacted version of Ex. 38, # 33 Exhibit Unredacted version of Ex. 39, # 34 Exhibit Redacted version of Ex. 39, # 35 Exhibit Unredacted version of Ex. 40, # 36 Exhibit Redacted version of Ex. 40, # 37 Exhibit Unredacted version of Ex. 41, # 38 Exhibit Redacted version of Ex. 41, # 39 Exhibit Unredacted version of Ex. 42, # 40 Exhibit Redacted version of Ex. 42, # 41 Exhibit Unredacted version of Ex. 43, # 42 Exhibit Redacted version of Ex. 43, # 43 Exhibit Unredacted version of Ex. 44, # 44 Exhibit Redacted version of Ex. 44, # 45 Exhibit Unredacted version of Ex. 45, # 46 Exhibit Redacted version of Ex. 45, # 47 Exhibit Ex. 46, # 48 Exhibit Unredacted version of Ex. 47, # 49 Exhibit Redacted version of Ex. 47, # 50 Exhibit Unredacted version of Ex. 48, # 51 Exhibit Unredacted version of Ex. 48, # 52 Exhibit Unredacted version of Ex. 49, # 53 Exhibit Redacted version of Ex. 49, # 54 Exhibit Unredacted version of Ex. 50, # 55 Exhibit Unredacted version of Ex. 50, # 56 Exhibit Unredacted version of Ex. 51, # 57 Exhibit Redacted version of Ex. 51)(Related document(s) 1085 ) (Renick, Randy) (Filed on 6/19/2015) Modified on 6/22/2015 (ewn, COURT STAFF). (Entered: 06/19/2015)

06/19/2015

1143

*** DOCUMENTS 1−13 LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** EXHIBITS re 1085 Administrative Motion to File Under Seal filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Redacted Exh. 3−2, # 2 Exhibit Redacted Exh. 3−3, # 3 Exhibit Redacted Exh. 3−4, # 4 Exhibit Redacted Exh. 3−5, # 5 Exhibit Redacted Exh. 3−6, # 6 Exhibit Redacted Exh. 3−7, # 7 Exhibit Redacted Exh. 3−8, # 8 Exhibit Redacted Exh. 3−9, # 9 Exhibit Redacted Exh. 3−10, # 10 Exhibit Redacted Exh. 3−11, # 11 Exhibit Redacted Exh. 3−12, # 12 Exhibit Redacted Exh. 3−13, # 13 Exhibit Redacted Exh. 3−14, # 14 Exhibit Uredacted Exh. 3−1, # 15 Exhibit Uredacted Exh. 3−2, # 16 Exhibit Uredacted Exh. 3−3, # 17 Exhibit Uredacted Exh. 3−4, # 18 Exhibit Uredacted Exh. 3−5, # 19 Exhibit Uredacted Exh. 3−6, # 20 Exhibit Uredacted Exh. 3−7, # 21 Exhibit Uredacted Exh. 3−8, # 22 Exhibit Uredacted Exh. 3−9, # 23 Exhibit Uredacted Exh. 3−10)(Related document(s) 1085 ) (Renick, Randy) (Filed on 6/19/2015) Modified on 6/22/2015 (ewn, COURT STAFF). (Entered: 06/19/2015)

06/22/2015

1144

EXHIBITS re 1085 Administrative Motion to File Under Seal filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Unredacted version of Ex. 3 (Part 1 of 10), # 2 Exhibit Unredacted version of Ex. 3 (Part 2 of 10), # 3 Exhibit Unredacted version of Ex. 3 (Part 3 of 10), # 4 Exhibit Unredacted version of Ex. 3 (Part 4 of 10), # 5 Exhibit Unredacted version of Ex. 3 (Part 5 of 10), # 6 Exhibit Unredacted version of Ex. 3 (Part 6 of 10), # 7 Exhibit Unredacted version of Ex. 3 (Part 7 of 10), # 8 Exhibit Unredacted version of

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 104 of 106

Ex. 3 (Part 8 of 10), # 9 Exhibit Unredacted version of Ex. 3 (Part 9 of 10), # 10 Exhibit Unredacted version of Ex. 3 (Part 10 of 10), # 11 Exhibit Redacted version of Ex. 3 (Part 1 of 14), # 12 Exhibit Redacted version of Ex. 3 (Part 2 of 14), # 13 Exhibit Redacted version of Ex. 3 (Part 3 of 14), # 14 Exhibit Redacted version of Ex. 3 (Part 4 of 14), # 15 Exhibit Redacted version of Ex. 3 (Part 5 of 14), # 16 Exhibit Redacted version of Ex. 3 (Part 6 of 14), # 17 Exhibit Redacted version of Ex. 3 (Part 7 of 14), # 18 Exhibit Redacted version of Ex. 3 (Part 8 of 14), # 19 Exhibit Redacted version of Ex. 3 (Part 9 of 14), # 20 Exhibit Redacted version of Ex. 3 (Part 10 of 14), # 21 Exhibit Redacted version of Ex. 3 (Part 11 of 14), # 22 Exhibit Redacted version of Ex. 3 (Part 12 of 14), # 23 Exhibit Redacted version of Ex. 3 (Part 13 of 14), # 24 Exhibit Redacted version of Ex. 3 (Part 14 of 14))(Related document(s) 1085 ) (Renick, Randy) (Filed on 6/22/2015) (Entered: 06/22/2015)

06/22/2015

1145

EXHIBITS re 1085 Administrative Motion to File Under Seal filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit Unredacted version of Ex. 7, # 2 Exhibit Unredacted version of Ex. 13, # 3 Exhibit Unredacted version of Ex. 26, # 4 Exhibit Unredacted version of Ex. 27, # 5 Exhibit Unredacted version of Ex. 28, # 6 Exhibit Unredacted version of Ex. 29, # 7 Exhibit Unredacted version of Ex. 30, # 8 Exhibit Unredacted version of Ex. 32, # 9 Exhibit Unredacted version of Ex. 34, # 10 Exhibit Unredacted version of Ex. 35, # 11 Exhibit Unredacted version of Ex. 36, # 12 Exhibit Unredacted version of Ex. 37, # 13 Exhibit Unredacted version of Ex. 38, # 14 Exhibit Unredacted version of Ex. 39, # 15 Exhibit Unredacted version of Ex. 40, # 16 Exhibit Unredacted version of Ex. 41, # 17 Exhibit Unredacted version of Ex. 42, # 18 Exhibit Unredacted version of Ex. 43, # 19 Exhibit Unredacted version of Ex. 44, # 20 Exhibit Unredacted version of Ex. 45, # 21 Exhibit Unredacted version of Ex. 46, # 22 Exhibit Unredacted version of Ex. 49, # 23 Exhibit Unredacted version of Ex. 50, # 24 Exhibit Unredacted version of Ex. 51, # 25 Exhibit Redacted version of Ex. 7, # 26 Exhibit Redacted version of Ex.13, # 27 Exhibit Redacted version of Ex. 26, # 28 Exhibit Redacted version of Ex. 27, # 29 Exhibit Redacted version of Ex. 28, # 30 Exhibit Redacted version of Ex. 29, # 31 Exhibit Redacted version of Ex. 30, # 32 Exhibit Redacted version of Ex. 32, # 33 Exhibit Redacted version of Ex. 33, # 34 Exhibit Redacted version of Ex. 34, # 35 Exhibit Redacted version of Ex. 35, # 36 Exhibit Redacted version of Ex. 36, *** # 37 Exhibit Redacted version of Ex. 37 DOCUMENT LOCKED AT FILER'S REQUEST. DOCUMENT TO BE REFILED LATER. *** , # 38 Exhibit Redacted version of Ex. 38, # 39 Exhibit Redacted version of Ex. 39, # 40 Exhibit Redacted version of Ex. 40, # 41 Exhibit Redacted version of Ex. 41, # 42 Exhibit Redacted version of Ex. 42, # 43 Exhibit Redacted version of Ex. 43, # 44 Exhibit Redacted version of Ex. 44, # 45 Exhibit Redacted version of Ex. 45, # 46 Exhibit Redacted version of Ex. 46, # 47 Exhibit Redacted version of Ex. 49, # 48 Exhibit Redacted version of Ex. 50, # 49 Exhibit Redacted version of Ex. 51)(Related document(s) 1085 ) (Renick, Randy) (Filed on 6/22/2015) Modified on 6/26/2015 (ewn, COURT STAFF). (Entered: 06/22/2015)

06/22/2015

1146

MOTION to Remove Incorrectly Filed Document filed by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Declaration DECLARATION OF RANDY RENICK IN SUPPORT OF MOTION TO REMOVE INCORRECTLY E−FILED DOCUMENTS RE: DKT. NOS. 1141 TO 1143, # 2 Proposed Order [PROPOSED] ORDER GRANTING PLAINTIFFS MOTION TO REMOVE INCORRECTLY E−FILED DOCUMENTS RE: DKT. NOS. 1141 TO 1143)(Renick, Randy) (Filed on 6/22/2015) (Entered: 06/22/2015)

06/23/2015

1147

EXHIBITS re 1077 Administrative Motion to File Under Seal Exhibit A (redacted) CORRECTION OF DOCKET # [1137−2] filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit A (unredacted) to Lawrence Dec. CORRECTION OF DOCKET # [1137−3])(Related document(s) 1077 ) (Grossman−Swenson, Sarah) (Filed on 6/23/2015) (Entered: 06/23/2015)

06/23/2015

1148

EXHIBITS re 1113 Administrative Motion to File Under Seal Exhibit C (redacted) to SGS Dec. CORRECTION OF DOCKET # [1138−4] filed byEdith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson. (Attachments: # 1 Exhibit C (unredacted) to SGS Dec. CORRECTION OF DOCKET # [1138−5], # 2 Exhibit E (redacted) to SGS Dec. CORRECTION OF DOCKET # [1138−6], # 3 Exhibit E (unredacted) to SGS Dec. CORRECTION OF DOCKET # [1138−7], # 4

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 105 of 106

Exhibit K (redacted) to SGS Dec. CORRECTION OF DOCKET # [1138−12], # 5 Exhibit K (unredacted) to SGS Dec. CORRECTION OF DOCKET # [1138−13], # 6 Exhibit T (redacted) to SGS Dec. CORRECTION OF DOCKET # [1138−17], # 7 Exhibit T (unredacted) to SGS Dec. CORRECTION OF DOCKET # [1138−18], # 8 Exhibit U (redacted) to SGS Dec. CORRECTION OF DOCKET # [1138−19], # 9 Exhibit U (unredacted) to SGS Dec. CORRECTION OF DOCKET # [1138−20])(Related document(s) 1113 ) (Grossman−Swenson, Sarah) (Filed on 6/23/2015) (Entered: 06/23/2015)

07/16/2015 1149 CLERK'S NOTICE VACATING all trial dates and deadlines (pre trial 8/28/2015, trial 9/8/2015). text entry only, no document associated with this entry. (beS, COURT STAFF) (Filed on 7/16/2015) (Entered: 07/16/2015)

08/25/2015 1150 ORDER GRANTING IN PART AND DENYING IN PART ADMINISTRATIVE MOTIONS TO SEAL. Signed by Judge Charles R. Breyer on 08/25/2015. (crblc2, COURT STAFF) (Filed on 8/25/2015) (Entered: 08/25/2015)

08/25/2015 1151 ORDER TO PICK UP VOLUMINOUS EXHIBITS. Signed by Judge Charles R. Breyer on 08/25/2015. (crblc2, COURT STAFF) (Filed on 8/25/2015) (Entered: 08/25/2015)

08/27/2015 1152 ORDER by Judge Charles R. Breyer granting 1146 Motion to Remove Incorrectly Filed Documents re: dkt. nos. 1141 to 1143 (beS, COURT STAFF) (Filed on 8/27/2015) (Entered: 08/27/2015)

09/04/2015

1153

REDACTION to 1150 Order WAL−MART STORES, INC.S RE−FILING OF DOCUMENTS PURSUANT TO ORDER REGARDING ADMINISTRATIVE MOTIONS TO SEAL (DKT. 1150) by Wal−Mart Stores, Inc.. (Attachments: # 1 REDACTED Motion, Partial Summ Judgment − Dukes, # 2 REDACTED Motion, Partial Summ Judgment − Kwapnoski, # 3 REDACTED Motion, Partial Summ Judgment − P. Surgeson E. Arana D. Gunter, # 4 Declaration of Paula VACCARO (Redacted), # 5 Exhibit 1 (part 1) Vacarro Decl'n (Redacted), # 6 Exhibit 1 (part 2) Vacarro Decl'n (Redacted), # 7 Exhibit 5, Medlin Decl'n, # 8 Exhibit 6, Medlin Decl'n, # 9 Exhibit 7, Medlin Decl'n, # 10 Exhibit 15, Brass Decl'n (Redacted), # 11 Exhibit 34, Brass Decl'n (Redacted), # 12 REDACTED Reply, Partial Summ Judgment − Dukes, # 13 REDACTED Reply, Partial Summ Judgment − Kwapnoski, # 14 REDACTED Reply, Partial Summ Judgment − P. Surgeson E. Arana D. Gunter)(Maryott, Michele) (Filed on 9/4/2015) (Entered: 09/04/2015)

09/08/2015

1154

CLERK'S NOTICE continuing status conference. Status Report due by 11/6/2015. Status Conference reset for 11/13/2015 08:30 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 9/8/2015) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 09/08/2015)

11/05/2015

1155

CLERK'S NOTICE: Status Report due by 1/8/2016. Status Conference reset for 1/15/2016 08:30 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (be, COURT STAFF) (Filed on 11/5/2015) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 11/05/2015)

01/07/2016

1156

CLERK'S NOTICE Resetting Status Conference. Status Report due by 3/11/2016. Status Conference reset for 3/18/2016 08:30 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 1/7/2016) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 01/07/2016)

02/04/2016 1157 NOTICE of Change of Address by Elizabeth A. Lawrence (Lawrence, Elizabeth) (Filed on 2/4/2016) (Entered: 02/04/2016)

03/14/2016

1158

CLERK'S NOTICE Resetting Status Conference: Status Report due by 6/3/2016. Status Conference set for 6/10/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (This is a text−only entry generated by the court. There is no document associated with this entry.) (beS, COURT STAFF) (Filed on 3/14/2016) (Entered: 03/14/2016)

Case: 3:01-cv-2252 As of: 10/18/2018 08:32 AM PDT 106 of 106

06/03/2016

1159

CLERK'S NOTICE Status Report due by 7/1/2016. Status Conference set for 7/8/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 6/3/2016) (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 06/03/2016)

07/08/2016

1160

CLERK'S NOTICE: Status Report due by 8/12/2016. Status Conference reset for 8/19/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 7/8/2016 (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 07/08/2016)

07/14/2016

1161

MOTION to Intervene filed by Joyce Clark, Suzanne Hewey, Kristy Farias, Lucretia Johnson, Hilda Todd, and Kristin Marsh. Motion Hearing set for 8/19/2016 10:00 AM in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. Responses due by 7/28/2016. Replies due by 8/4/2016. (Attachments: # 1 Declaration of Christine Webber, # 2 Exhibit Proposed Complaint)(Sellers, Joseph) (Filed on 7/14/2016) Modified on 7/15/2016 (mclS, COURT STAFF). (Entered: 07/14/2016)

07/15/2016 1162 STIPULATION (JOINT) VOLUNTARILY DISMISSING PLAINTIFFS CLAIMS WITH PREJUDICE AND TERMINATING ACTION filed by Wal−Mart Stores, Inc.. (Conway, Catherine) (Filed on 7/15/2016) (Entered: 07/15/2016)

07/18/2016 1163 ORDER TO SHOW CAUSE RE MOTION TO INTERVENE by Judge Charles R. Breyer (crblc2, COURT STAFF) (Filed on 7/18/2016). (Entered: 07/18/2016)

07/25/2016 1164 RESPONSE TO 1163 ORDER TO SHOW CAUSE by Wal−Mart Stores, Inc. . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Boutrous, Theodore) (Filed on 7/25/2016) Modified on 7/26/2016 (mclS, COURT STAFF). (Entered: 07/25/2016)

08/01/2016 1165 RESPONSE TO 1163 ORDER TO SHOW CAUSE by Edith Arana, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson . (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Sellers, Joseph) (Filed on 8/1/2016) Modified on 8/1/2016 (mclS, COURT STAFF). (Entered: 08/01/2016)

08/15/2016

1166

CLERK'S NOTICE resetting the TIME ONLY: Status Conference set for 02:00 PM on 8/19/2016 in Courtroom 6, 17th Floor, San Francisco before Hon. Charles R. Breyer. (beS, COURT STAFF) (Filed on 8/15/2016). (This is a text−only entry generated by the court. There is no document associated with this entry.) (Entered: 08/15/2016)

08/15/2016 1167 ORDER by Judge Charles R. Breyer denying as moot 1161 Motion to Intervene. (beS, COURT STAFF) (Filed on 8/15/2016) (Entered: 08/15/2016)

08/16/2016

1168

NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Joyce Clark, Suzanne Hewey, Kristy Farias, Lucretia Johnson, Hilda Todd and Kristin Marsh. Appeal of Order on Motion to Intervene 1167 , Order on Motion to Certify Class, Order on Motion for Miscellaneous Relief, Order on Motion to Strike,, 991 , Stipulation 1162 (Appeal fee of $505 receipt number 0971−10693694 paid.) (Sellers, Joseph) (Filed on 8/16/2016) Modified on 8/18/2016 (mclS, COURT STAFF). (Entered: 08/16/2016)

08/22/2016 1169 USCA Case Number 16−16451 for 1168 Notice of Appeal, filed by Joyce Clark, Suzanne Hewey, Kristy Farias, Lucretia Johnson, Hilda Todd and Kristin Marsh. (mclS, COURT STAFF) (Entered: 08/22/2016)

09/13/2016 1170 Transcript Designation Form for proceedings held on 08/28/2013 before Judge Breyer, re 1169 USCA Case Number 16−16451 Transcript due by 9/15/2016. (Webber, Christine) (Filed on 9/13/2016) (Entered: 09/13/2016)

11/16/2016 1171 ORDER of USCA as to 1168 Notice of Appeal, filed by Edith Arana, Christine Kwapnoski, Betty Dukes, Patricia Surgeson, Deborah Gunter. The motion filed by the appellants on 10/26/16 for voluntary dismissal of this appeal is granted. (mclS, COURT STAFF) (Filed on 11/16/2016) (Entered: 11/16/2016)

11/16/2016 1172 CLERK'S Letter Spreading Mandate to Counsel re 1171 . (mclS, COURT STAFF) (Filed on 11/16/2016) (Entered: 11/16/2016)

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 04-80057
Wal-Mart Stores, Inc, et al v. Dukes
Appeal From: U.S. District Court for Northern California, San Francisco Fee Status: -

Docketed: 07/07/2004 Termed: 08/13/2004

Case Type Information: 1) 1292(b) petition 2) private 3) null

Originating Court Information: District: 0971-3 : CV-01-02252-MJJ Trial Judge: Martin J. Jenkins, U.S. District Judge Date Filed: 06/08/2001 Date Order/Judgment: 06/21/2004

07/19/2004 9 07/26/2004 5 08/13/2004 6

Filed Respondent Betty Dukes, Respondent Patricia Surgeson, Respondent Cleo Page, Respondent Deborah Gunter, Respondent Karen Williamson, Respondent Christine Kwapnoski, Respondent Edith Arana response in opposition to the petition for permission to apepal; served on 7/19/04[04-80057] (FT)
Filed Petitioner Wal-Mart Stores, Inc's motion for leave to file reply and reply in support of petition for permission to appeal from order granting class certification; [04-80057] served on 7/26/04 [5129800] (MOATT) [04-80057] (FT)
Order filed: The clerk shall file the letter brief of amicus curiae EEAC rec'd 7/7/04. The motion of Chamber of Commerce of the U.S. for leave to file an amicus curiae brief is granted. The Clerk shall file the amicus curiae brief rec'd 7/14/04. The Clerk shall file respondent's opposition to the petition for permission to appeal rec'd 7/19/04. Petitioners motion for leave to file a reply ro respondents' opposition is granted. The court, in its discretion, grants the petition for permission to appeal the dc's 6/22/04, order granting class action certification. Within 10 days of this order, petitioner shall perfect the appeal in accordance with FRAP 5(d). After the appeal is perfected, the Clerk is directed to expedite the briefing and hearing of the appeal. The provisions of Ninth Circuit Rule 31-2.2(a) shall not apply to this briefing schedule. ( Terminated on the Merits after Submission

Without Oral Hearing; Other; Written, Unsigned Without Comment, Mary M. SCHROEDER, CONSUELO M. CALLAHAN ) [0480057] (Phoned and faxed; 12:10) (FT)
08/31/2004 10 Filed MOATT order ( Mary M. SCHROEDER, CONSUELO M. CALLAHAN, ): The crt, in its discretion, grants the cross petition for permission to appeal the dc's 6/22/04, class action order. Within 10 days of this order, aples/respondents shall perfect the x-appeal in accordance with FRAP 5(d). After the x-appeal is perfected, the clk is directed to expedite the briefing & hearing of the x-appeal in accordance with appeal 04-16688. The provisios of 9th Cir. 31-2.2(a) shall not apply to this briefing schedule. [04-16688, 04-80057] (MF)
08/07/2006 11 Received John Price letter dated 8/3/06 re: Application of the correlation caveat. (PANEL) [04-80057] (FT)
09/16/2008 12 Mail returned on 09/15/2008 addressed to Terri L. Ross, Esquire for The Retail Industry Leaders Association in 04-16688, re: September 8th order. Resending to: casefiles-not lead counsel. [04-16688, 0416720, 04-80057] (HC)
03/09/2009 13 Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae AARP in 04-16688. Date of service: 03/09/2009. [6837944] [04-16688, 02-80008, 04-16720, 04-80057] (DBK)
03/09/2009 14 Filed clerk order: Electronically-filed document [13] Brief Submitted for Review (ECF Filing) is stricken because there is an error in the document. Please re-file document in pertaining case only. File document in lead appeal #04-16688 and only check box for crossappeal #04-16720. [04-16688, 02-80008, 04-16720, 04-80057] (LC)
03/10/2009 15 Filed (ECF) notice of appearance of Pamela Coukos for Amicus Curiae NELA in 04-16688, 04-16720. Date of service: 03/10/2009. [6839890] [04-16688, 04-16720, 04-80057] (PC)
03/10/2009 16 Filed clerk order: Electronically-filed document [15] Notice of Appearance (ECF Filing) is stricken because there is an error in the document. Appeal # 04-80057 closed 8/13/04. Please re-file doucment in lead appeal #04-16688 and cross appeal #04-16720 only. [04-16688, 04-16720, 04-80057] (LC)

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 02-80008
Dukes, et al v. Wal-Mart
Appeal From: U.S. District Court for Northern California, San Francisco Fee Status: -

Docketed: 01/23/2002 Termed: 03/18/2002

Case Type Information: 1) 1292(b) petition 2) private 3) null

Originating Court Information: District: 0971-3 : CV-01-02252-MJJ Trial Judge: Martin J. Jenkins, U.S. District Judge Date Filed: 01/20/2001 Date Order/Judgment: 12/02/2001

01/18/2002 1 FILED ON 1/18/02 ORIGINAL AND 4 PETITIONS FOR PERMISSION TO APPEAL PURSUANT TO RULE 1292(b); served on 1/18/02 (MOATT) (WP)
01/25/2002 2 Received Petitioner Betty Dukes answer to petition of Betty Dukes, et al. for petition for permission to appeal (1292(b)) (MOATT) (WP)
01/29/2002 3 Petitioner's csl telephone call, will be filing a reply to answer to be filed with/ct on Friday, Feb. 1, 2002. [02-80008] (JC)
01/29/2002 4 Received Respondent Wal-Mart, Inc.'s amended Proof of service to the answer to the petition for permission to appeal, served on 1/28/02 [02-80008] (WP)
02/01/2002 5 Filed Petitioner Betty Dukes reply petition for permission to appeal. (MOATT) [1] served on 2/1/02 [02-80008] (WP)
02/04/2002 6 Received Steven T. Catlett's for Respondent Wal-Mart, Inc., Respondent Wal-Mart, Inc. letter dated 1/29/02 re: Counsel's correct address. [02-80008] (WP)
03/18/2002 10 Order filed The petition for permission to appeal pursuant to 28 U.S.C. 1292 is denied. ( Terminated on the Merits after Submission Without Oral Hearing; Dismissed/Frivolous; Written, Unsigned, Unpublished. William C. CANBY, Robert R. BEEZER ) [02-80008] (WP)

03/09/2009 11 Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae AARP in 04-16688. Date of service: 03/09/2009. [6837944] [04-16688, 02-80008, 04-16720, 04-80057] (DBK)
03/09/2009 12 Filed clerk order: Electronically-filed document [11] Brief Submitted for Review (ECF Filing) is stricken because there is an error in the document. Please re-file document in pertaining case only. File document in lead appeal #04-16688 and only check box for crossappeal #04-16720. [04-16688, 02-80008, 04-16720, 04-80057] (LC)

 
 General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 04-16688
Nature of Suit: 3442 Jobs
Dukes, et al v. Wal-Mart Stores Appeal From: U.S. District Court for Northern California, San Francisco Fee Status: Paid

Docketed: 08/30/2004 Termed: 04/26/2010

Case Type Information: 1) civil 2) private 3) null

Originating Court Information:

District: 0971-3 : CV-01-02252-MJJ

Trial Judge: Martin J. Jenkins, U.S. District Judge

Date Filed: 06/08/2001

Date Order/Judgment:

Date NOA Filed:

06/21/2004

08/13/2004

01/20/2010 292 Terminated Debra Smith for appellant/ cross-appellees Dukes, et al [7201474] [04-16688, 04-16720] (LC)
02/09/2010 293 Filed (ECF) notice of appearance of Arcelia Leticia Hurtado for Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688, Appellants Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16720. Date of service: 02/09/2010. [7225124] [04-16688, 04-16720] (AH)
02/10/2010 294 Added attorney Arcelia Hurtado for Dukes, et al. [7227829] [0416688, 04-16720] (LC)
02/10/2010 295 Terminated Irma Dolores Herrera for Betty Dukes, et al. [7227836] [04-16688, 04-16720] (LC)
02/23/2010 296 Filed (ECF) notice of appearance of for Amicus Curiae CELC in 04-16688, 04-16720. Date of service: 02/23/2010. [7241840] [0416688, 04-16720] (JH)
02/23/2010 297 Added attorney Jane Howard-Martin for Amicus Curiae CELC [7241945] [04-16688, 04-16720] (LC)
02/23/2010 298 Terminated Maureen K. Bogue for CELC [7241948] [04-16688, 04-

16720] (LC)
04/07/2010 299 Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 04/07/2010. [7293579] [04-16688, 04-16720] (TJB)
04/12/2010 300 Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 04/12/2010. [7298120] [04-16688, 04-16720] (JDL)
04/26/2010 301 FILED OPINION (ALEX KOZINSKI, STEPHEN R. REINHARDT, PAMELA ANN RYMER, MICHAEL DALY HAWKINS, BARRY G. SILVERMAN, SUSAN P. GRABER, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, CARLOS T. BEA and SANDRA S. IKUTA) AFFIRMED IN PART; REMANDED IN PART. Each party shall bear its own costs on appeal. Judge: AK Dissenting, Judge: MDH Authoring, Judge: SPG Concurring, Judge: SSI Dissenting. FILED AND ENTERED JUDGMENT. [7313593] [04-16688, 04-16720] (RP)

 
 04-16720 Docket

General Docket United States Court of Appeals for the Ninth Circuit

Court of Appeals Docket #: 04-16720 Nature of Suit: 3442 Jobs Wal-Mart Stores Inc., et al v. Dukes
Appeal From: U.S. District Court for Northern California, San Francisco Fee Status: Paid

Case Type Information:       1) civil       2) private       3) null

Originating Court Information:       District: 0971-3 : CV-01-02252-MJJ       Trial Judge: Martin J. Jenkins, District Judge       Date Filed: 06/08/2001       Date Order/Judgment:       06/21/2004

      Date NOA Filed:       08/31/2004

Prior Cases:       None

Current Cases:       Cross-Appeal

Lead 04-16688

Member 04-16720

Start

End

09/01/2004

Docketed: 09/01/2004 Termed: 04/26/2010

BETTY DUKES                       Plaintiff - Appellant,

Debra Gardner Direct: 410-625-9409 [COR LD NTC Retained] PUBLIC JUSTICE CENTER Suite 200 One North Charles St. Baltimore, MD 21201
Jocelyn Dion Larkin, Attorney Direct: 510-845-3473 [COR LD Retained] THE IMPACT FUND Suite 102 125 University Avenue Berkeley, CA 94710
Shauna I. Marshall, Esquire, Attorney Direct: 415-565-4682 [COR LD NTC Retained] Hastings College of the Law University of California Firm: 565-4719 200 McAllister Street San Francisco, CA 94102
Brad Seligman Direct: 510-845-3473 [COR LD NTC Retained] THE IMPACT FUND Suite 102 125 University Avenue

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Berkeley, CA 94710
Joseph Sellers, Attorney Direct: 202-408-4600 [COR LD NTC Retained] COHEN MILSTEIN SELLERS & TOLL, PLLC West Tower Suite 500 Firm: 202-408-4600 1100 New York Avenue, N.W. Washington, DC 20005
Steven Louis Stemerman, Esquire, Attorney Direct: 415-597-7200 [COR LD NTC Retained] DAVIS COWELL & BOWE, LLP Suite 1400 595 Market Street San Francisco, CA 94105
Stephen E. Tinkler, Esquire, Attorney Direct: 505-982-8533 [COR LD NTC Retained] TINKER & BENNETT 309 Johnson St. Santa Fe, NM 87501
Christine E. Webber, Partner [COR LD NTC Retained] COHEN MILSTEIN SELLERS & TOLL, PLLC West Tower Suite 500 Firm: 202-408-4600 1100 New York Avenue, N.W. Washington, DC 20005
Merit Bennett Direct: 505-983-9834 [COR Retained] The Bennett Firm Suite 703 460 St. Michael's Drive Sante Fe, NM 87505
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR NTC Retained] Equal Rights Advocates Suite 250 180 Howard Street Suite 300 San Francisco, CA 94105
Arcelia Hurtado, Attorney Direct: 415-621-0672 [COR NTC Retained] Equal Rights Advocates 180 Howard Street Suite 300 San Francisco, CA 94105

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04-16720 Docket
PATRICIA SURGESON                       Plaintiff - Appellant,
EDITH ARANA                       Plaintiff - Appellant,
KAREN WILLIAMSON                       Plaintiff - Appellant,
DEBORAH GUNTER                       Plaintiff - Appellant,
CHRISTINE KWAPNOSKI                       Plaintiff - Appellant,
PAGE CLEO                       Plaintiff - Appellant,

Elizabeth Ann Lawrence, Esquire, Attorney Direct: 415-597-7200 [COR Retained] DAVIS COWELL & BOWE, LLP Suite 1400 595 Market Street San Francisco, CA 94105
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Arcelia Hurtado, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Arcelia Hurtado, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Arcelia Hurtado, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Arcelia Hurtado, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Arcelia Hurtado, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Noreen Ann Farrell, Esquire, Attorney Direct: 415-621-0672 [COR NTC Retained]

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04-16720 Docket
   v. WAL-MART, INC.                       Defendant - Appellee,

(see above)
Arcelia Hurtado, Attorney Direct: 415-621-0672 [COR NTC Retained] (see above)
Nancy Lula Abell, Esquire, Attorney Direct: 213-683-6000 [COR LD NTC Retained] PAUL HASTINGS JANOFSKY & WALKER LLP 25th Floor 515 South Flower Street Los Angeles, CA 90071-2228
Theodore J. Boutrous, Jr., Esquire, Attorney Direct: 213-229-7804 [COR LD NTC Retained] GIBSON DUNN & CRUTCHER, LLP 333 South Grand Avenue Los Angeles, CA 90071-3197
Paul Grossman, Esquire, Attorney Direct: 213-683-6203 [COR LD NTC Retained] PAUL HASTINGS JANOFSKY & WALKER LLP 25th Floor 515 South Flower Street Los Angeles, CA 90071-2228
Barbara L. Johnson Direct: 202-551-1700 [COR LD NTC] PAUL HASTINGS JANOFSKY & WALKER, LLP 875 - 15th St., NW Washington, DC 20005
Katherine Consuelo Huibonhoa, Attorney Direct: 415-856-7000 [COR Retained] PAUL HASTINGS JANOFSKY & WALKER, LLP 24th Floor 55 Second Street San Francisco, CA 94105-3491
Gail Ellen Lees, Attorney Direct: 213-229-7163 [COR Retained] GIBSON DUNN & CRUTCHER, LLP Suite 5000 333 South Grand Avenue Los Angeles, CA 90071-3197
Neal Mollen Direct: 202-551-1700 [COR Retained] PAUL HASTINGS JANOFSKY & WALKER, LLP 875 - 15th St., NW Washington, DC 20005

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-----------------------------THE EMPLOYERS GROUP                       Amicus Curiae,
EQUAL EMPLOYMENT ADVISORY COUNCIL                       Amicus Curiae, CHAMBER OF COMMERCE OF THE UNITED STATES                       Amicus Curiae,
WASHINGTON LEGAL FOUNDATION                       Amicus Curiae, THE RETAIL INDUSTRY LEADERS ASSOCIATION                       Amicus Curiae,
AMERICAN ASSOCIATION OF RETIRED PERSONS

Mark Andrew Perry, Counsel Direct: 415-393-8200 [COR NTC Retained] GIBSON, DUNN & CRUTCHER LLP Suite 3000 555 Mission Street San Francisco, CA 94105-2933
Jeffrey A. Berman [COR LD NTC Retained] Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013
Joel E. Krischer, Attorney Direct: 213-891-7939 [COR LD NTC Retained] LATHAM & WATKINS, LLP Firm: 213-485-1234 355 South Grand Avenue Los Angeles, CA 90071-1560
Rae T. Vann, General Counsel [COR LD NTC Retained] Norris, Tysse, Lampley & Lakis, LLP 1501 M Street, N.W. Washington, DC 20005
Evelyn Lisa Becker, Attorney Direct: 202-383-5378 [COR LD NTC Retained] O'Melveny & Myers LLP 1625 Eye Street, N.W. Washington, DC 20006
John Beisner, Attorney Direct: 202-371-7410 [COR LD NTC Retained] SKADDEN ARPS SLATE MEAGHER & FLOM, LLP 1440 New York Ave., NW Washington, DC 20005-2111
Richard Abbott Samp, Chief Counsel Direct: 202-588-0302 [COR LD NTC Retained] Washington Legal Foundation 2009 Massachusetts Avenue, NW Washington, DC 20036
Raymond Charles Fay, Esquire, Attorney Direct: 202-204-3507 [COR LD NTC Retained] CONSTANTINE CANNON LLP 1000 1301 K Street NW Washington, DC 20005
Daniel Benjamin Kohrman, Senior Attorney

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04-16720 Docket                       Amicus Curiae,
CENTER FOR CONSTITUTIONAL RIGHTS                       Amicus Curiae,
LAWYERS' COMMITTEE FOR CIVIL RIGHTS UNDER LAW                       Amicus Curiae,
CALIFORNIA EMPLOYMENT LAW COUNCIL                       Amicus Curiae,
PRODUCT LIABILITY ADVISORY COUNCIL                       Amicus Curiae,
US WOMEN'S CHAMBER OF COMMERCE                       Amicus Curiae,
PUBLIC JUSTICE, P.C.                       Amicus Curiae,

Direct: 202-434-2064 [COR LD NTC Retained] AARP - AMERICAN ASSOCIATION OF RETIRED PERSONS Foundation Litigation Room A4-240 601 E Street, NW Washington, DC 20049
Bill Lann Lee, Esquire, Attorney Direct: 510-839-6824 [COR LD NTC Retained] LEWIS FEINBERG LEE RENAKER & JACKSON, PC 476 9th Street Oakland, CA 94607-4048
Audrey Jordan Wiggins, Esquire Direct: 202-662-8326 [NTC] LAWYERS' COMMITTEE FOR CIVIL RIGHTS Suite 400 1401 New York Avenue N.W., Washington, DC 20005-2124
David Ray Bruce, Esquire, Attorney Direct: 707-577-2151 [COR LD NTC Retained] Agilent Legal Department MS: 1USD 1400 Fountaingrove Parkway Santa Rosa, CA 95403
Jane Howard-Martin, Esquire Direct: 310-468-2264 [COR LD NTC Retained] Toyota Motor Sales, USA, Inc. Firm: 310-468-2264 19001 S. Western Avenue, MS HQ 12 MS HQ 12 Torrance, CA 90501
James M. Beck, Esquire, Counsel Direct: 215-994-2970 [NTC] DECHERT LLP Cira Centre 2929 Arch Street Philadelphia, PA 19104-2808
Mark Etheredge Burton, Jr., Esquire, Attorney Direct: 415-441-5544 [COR LD NTC] HERSH & HERSH LLP Suite 2080 601 Van Ness Avenue San Francisco, CA 94102
Joe R. Whatley, Jr., Attorney Direct: 212-447-7070 [NTC] WHATLEY DRAKE & KALLAS LLC 37th Floor

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION                       Amicus - Amicus Curiae,

1540 Broadway New York, NY 10036
Barbara L. Sloan Direct: 202-663-4721 [NTC] EEOC - U.S. Equal Employment Opportunity Commission 5th Floor Firm: 202-663-4900 131 M Street, NE Washington, DC 20507

BETTY DUKES; PATRICIA SURGESON; EDITH ARANA; KAREN WILLIAMSON; DEBORAH GUNTER; CHRISTINE KWAPNOSKI; PAGE CLEO,                      Plaintiffs - Appellants,    v. WAL-MART, INC.,                      Defendant - Appellee.

09/01/2004

1

09/01/2004

2

09/10/2004

3

09/14/2004

4

09/23/2004

7

10/07/2004

8

11/29/2004

9

12/08/2004

11

12/08/2004

12

Case No. 04-16688 and 04-80057. Order filed. Before SCHROEDER, Chief Judge, and CALLAHAN, Circuit Judge. The court, in its discretion, grants the cross-petition for permission to appeal the district court's 6/22/04, class action certification order. See FRCP 23(f). Within 10 days of this order, aples/res shall perfect the cross-appeal in accordance with FRAP 5(d). After the cross-appeal is perfrected, the clerk is directed to expedite the briefing and hearing of the cross appeal in accordance with appeal no. 04-16688. The provisions of 9th Cir. Rule 31-2.2 (as) shall not apply to this briefing schedule. [0416720] (KKW)
DOCKETED CAUSE AND ENTERED APPEARANCES OF COUNSEL. CADS SENT (Y/N): y. setting cross appeal briefing schedule as follows: CADS is past due; CADS must be filed no later than 9/8/04; first cross-appeal brief is due 11/29/04 ; second cross-appeal brief is due 12/29/04 ; third cross-appeal brief is due 1/28/04 ; optional cross-appeal reply brief is due 2/11/04 [04-16720, 0416688] (KKW)
Filed Christine E. Webber for Appellant Betty Dukes in 04-16720 Civil Appeals Docketing Statement served on 9/9/04 (to CONFATT) [04-16720] [04-16720] (JI)
Check Number 045158 in the amount of 255.00 forwarded to district court. (See Case File) [04-16720] (RR)
Filed order CONFATT (vls) Based on a review of the Civil Appeals Docketing Statement, this case is not selected for inclusion in the Mediation Program. The existing briefing schedule remains in effect. Counsel for any party interested in obtaining assistance from the court in pursuing settlement of the case on appeal or learing more about the Mediation Program is encouraged to contact Roxane G. Ashe, Circuit Mediator, by fax (415) 556-9725. The communication will be kept confidential, if requested, from the other parties in the cases. Counsel are requested to send copies of this order to their clients. [04-16688, 04-16720] (RT)
Case rejected from Circuit Mediation Program. (LW)
Filed original and 15 copies Appellant Cross Appellee Wal-Mart, Inc.'s first brief on cross-appeal, (Informal: No ) of 61 pages; 5 vols. of EOR; served on 11/29/04 [04-16688, 04-16720] (RT)
Filed original and 15 copies amicus curiae brief of The Employers Group in support of appellants cross appellees Wal Mart Stores, Inc. and in support of reversal of 31 pages; served on 12/7/04 [0416688, 04-16720] (RT)
Filed original and 15 copies amicus curiae brief of EEAC (Equal Employment Advisory Council) in support of appellant cross appellee Wal Mart Stores, Inc. and in support of reversal of 29 pages;

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12/08/2004

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12/09/2004

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12/10/2004

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01/03/2005

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01/10/2005

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01/10/2005

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01/10/2005

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01/13/2005

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01/28/2005

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02/14/2005

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03/17/2005

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03/21/2005

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04/15/2005

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04/25/2005

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06/02/2005

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06/13/2005

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06/16/2005

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07/18/2005

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07/22/2005

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08/08/2005

34

01/27/2006

37

02/01/2006

38

served on 12/6/04 [04-16688, 04-16720] (RT)
Filed original and 15 copies amicus curiae brief of The Retail Industry Leaders Association in support of appellant cross appellee Wal Mart Stores, Inc. of 29 pages; served on 12/7/04 [04-16688, 0416720] (RT)
Filed original and 15 copies amicus curiae brief of The Chamber of Commerce the United States in support of appellant cross appellee Wal Mart Stores, Inc. of 16 pages; served on 12/8/04 [04-16688, 04-16720] (RT)
Filed original and 15 copies amicus curiae brief of Washington Legal Foundation (WLF) in support of appellant cross appellee Wal Mart Stores, Inc. and seeking reversal of the order below of 16 pages; served on 12/7/04 [04-16688, 04-16720] (RT)
Filed original and 15 copies Appellees Cross Appellants Betty Dukes et al. second brief on crossappeal (Informal: No ) of 61 pages; 3 vols. of Supp EOR; served on 12/29/04 [04-16688, 04-16720] (RT)
Filed original and 15 copies amici curiae brief of The National Employment Lawyers Association et al.'s of 31 pages in support of appellees cross appellants Dukes, et al.; served on 1/10/05 [04-16688, 04-16720] (RT)
Filed original and 15 copies amici curiae brief of AARP et al. of 19 pages in support of appellees cross appellants Dukes, et al.; served on 1/7/05 [04-16688, 04-16720] (RT)
Filed original and 15 copies amici curiae brief of Center for Constitutional Rights et al. of 15 pages in support of appellees cross appellants Dukes, et al.; served on 1/10/05 [04-16688, 04-16720] (RT)
Filed original and 15 copies amici curiae brief of Lawyers' Committee for Civil Rights Under Law et al. of 29 pages in support of appellees cross appellants Dukes, et al.; served on 1/7/05 [04-16688, 0416720] (RT)
Filed original and 15 copies Appellant Cross Appellee Wal-Mart, Inc.'s third brief on cross-appeal (Informal: No ) of 59 pages; 1 vol. of Supp EOR; served on 1/28/05 [04-16688, 04-16720] (RT)
Filed original and 15 copies Appellees Cross Appellants Betty Dukes et al. cross appeal reply brief, (Informal: No ) of 32 pages; 1 vol. of Supp EOR; served on 2/11/05 [04-16688, 04-16720] (RT)
Filed Appellant Cross Appellee Wal-Mart Stores, Inc. additional citations, FRAP 28(j) letter, served on 3/16/05 (RECORDS for MERITS PANEL) [04-16688, 04-16720] (RT)
Filed plfts Dukes, et al's in response to dfdts' 3/15/05 citations; served on 3/21/05 (RECORDS) [0416688, 04-16720] (MF)
Filed Appellees Cross Appellants Betty Dukes et al. additional citations, FRAP 28(j) letter, served on 4/15/05 (RECORDS for MERITS PANEL) [04-16688, 04-16720] (RT)
Filed Appellant Cross Appellee Wal-Mart Stores, Inc. additional citations, FRAP 28(j) letter, served on 4/22/05 (RECORDS for MERITS PANEL) [04-16688, 04-16720] (RT)
Calendar check performed [04-16688, 04-16720] (MW)
Calendar materials being prepared. [04-16688, 04-16720] [04-16688, 04-16720] (MW)
CALENDARED: San Francisco August 8, 2005 1:30 pm Courtroom 1 [04-16688, 04-16720] (MW)
Filed Appellees Cross Appellants Betty Dukes et al. additional citations, FRAP 28(j) letter, served on 7/16/05 (PANEL) [04-16688, 04-16720] (RT)
Filed defendant Wal-Mart, Inc's additional citations; served on 7/22/05 (PANEL by FAX) [04-16688, 04-16720] (MF)
ARGUED AND SUBMITTED TO Harry PREGERSON, Andrew J. KLEINFELD, Michael D. HAWKINS. [04-16688, 04-16720] (EL)
Filed Appellant x-appellee Wal-Mart Stores, Inc.'s additional citations, FRAP 28(j) letter, served on 1/27/06 (PANEL) [04-16688, 04-16720] (RT)
Filed Appellees x-appellants Dukes additional citations, FRAP 28(j) letter, served on 1/30/06 (PANEL)

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03/14/2006

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03/20/2006

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04/06/2006

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04/27/2006

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05/26/2006

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05/26/2006

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05/31/2006

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06/22/2006

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06/30/2006

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07/11/2006

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12/06/2006

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02/20/2007

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02/23/2007

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02/26/2007

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02/26/2007

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02/26/2007

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02/27/2007

58

[04-16688, 04-16720] (RT)
Filed Wal-Mart, Inc. additional citations, served on 3/14/06 (PANEL) [04-16688, 04-16720] (MF)
Filed Appellee Betty Dukes's response in opposition to aplt's additional cites; served on 3/17/06 (PANEL) [04-16688, 04-16720] (MF)
Filed Appellant x-appellee Wal-Mart, Inc.'s additional citations, FRAP 28(j) letter, served on 4/6/06 (PANEL) [04-16688, 04-16720] (RT)
Filed Appellees x-appellants' Dukes et al. additional citations, FRAP 28(j) letter, served on 4/26/06 (PANEL) [04-16688, 04-16720] (RT)
Received original and 15 copies Appellant x-appellee Wal-Mart, Stores Inc.'s supplemental brief of 12 pages, served on 5/26/06; deficient: not requested by court. Notified counsel: - no, submitted w/motion to allow filing. (PANEL) [04-16688, 04-16720] (RT)
Filed Appellant x-appellee Wal-Mart Stores, Inc.'s motion for leave to file supplemental brief; served on 5/26/06 (PANEL w/proposed brief) [04-16688, 04-16720] (RT)
Filed Appellees x-appellants Betty Dukes et al. opposition to Appellant x-appellee Wal Mart Stores, Inc.'s motion to file supplemental brief [44] served on 5/31/06 (PANEL) [04-16688, 04-16720] (RT)
Filed order ( Harry PREGERSON, Andrew J. KLEINFELD, Michael D. HAWKINS, Circuit Judges): Defendant Appellant Cross Appellee's Motion for Leave to File Supplemental Brief is denied. [0416688, 04-16720] (RT)
Filed Wal-Mart, Inc. additional citations, served on 6/30/06 (Faxed to PANEL) [04-16688, 04-16720] (MF)
Received letter dated 7/7/06 re: Aples' response to Aplt's 6/30/06 letter br (faxed to PANEL) [0416688, 04-16720] (GV)
Filed Appellant x-appellee Wal-Mart, Inc.'s additional citations, FRAP 28(j) letter, served on 12/6/06 (PANEL) [04-16688, 04-16720] (RT)
Filed aples/x-aplts Betty Dukes, et al. motion for exemption from Cir.R 46-5 and declaration of Julia Campins in support of motion; served on 12/7/06 (faxed to PANEL) [04-16688, 04-16720]
Filed Plaintiffs Patricia Surgeson, et al's additional citations, served on 12/11/06 (PANEL) [04-16688, 04-16720] (MF)
FILED OPINION: AFFIRMED ( Terminated on the Merits after Oral Hearing; Affirmed; Written, Signed, Published. Harry PREGERSON, author; Andrew J. KLEINFELD, dissenting; Michael D. HAWKINS. ) FILED AND ENTERED JUDGMENT. [04-16688, 04-16720] (GV)
[6094962] Filed original & 50 copies Appellant Wal-Mart, Inc.'s petition for rehearing en banc of 18 pages [4,199 words]; served on 2/20/07 (PANEL AND ALL ACTIVE JUDGES AND ALL INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (GV)
Filed order ( Harry PREGERSON, Andrew J. KLEINFELD, Michael D. HAWKINS, ): Plaintfiff appellees are directed to file a response to appellant's peition for rehearing en banc. Said response shall be filed with the Court within twenty one (21) days of the date of filing of this order. (phoned counsel for parties: 4:10 pm) [04-16720, 04-16688] (RT)
Received EEAC (Equal Employment Advisory Council) amicus curiae letter in support of Appellant xappellee Wal-Mart's petition for rehearing en banc in 50 copies of 6 pages; served on 2/23/07. (rec'd only - per phone call from counsel for same letter contains citation errors and corrected version sent) [04-16688, 04-16720] (RT)
Received CELC (California Employment Law Council's) proposed amicus curiae brief in 50 copies of 12 pages in support of Appellant x-appellee Wal Mart's petition for rehearing en banc; served on 2/26/07. (rec'd only - submitted w/motion for leave to file) [04-16688, 04-16720] (RT)
Filed CELC motion for leave to file amicus curiae brief in support of Appellant x-appelee's peition for rehearing en banc; [04-16688, 04-16720] served on 2/26/07 (PANEL w/copy of brief) (RT)
Filed original and 50 copies EEAC (Equal Employment Advisory Council) amicus curiae letter brief of 8 pages in support of Appellant x-appellee Wal-Mart's petition for rehearing en banc; served on 2/26/07

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(PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed original and 50 copies Chamber of Commerce of USA's amicus curiae brief (brief states all parties consent to filing) of 10 pages in support of Appellant x-appellee Wal-Mart's petition for rehearing en banc; served on 3/1/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [0416688, 04-16720] (RT)
Filed original and 50 copies Product Liability Advisory Council's amicus curiae brief (states all parties consent to the filing) of 10 pages in support of Appellants x-appellees Wal-Mart's petition for rehearing en banc; served on 2/28/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed original and 50 copies Retail Industry Leaders Association's amicus curiae brief (brief states all parties consent to the filing) of 11 pages in support of Appellant x-appellee Wal-Mart's peititon for rehearing en banc; served on 2/28/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed amicus curiae Retail Industry Leaders Association's motion for leave to file a brief in support of Appellant x-appellee's petition for rehearing en banc; served on 2/8/07 (motion may be moot submitted brief states all parties consent to filing) (PANEL) [6105978] [04-16688, 04-16720] (RT)
Received WLF's (Washington Legal Foundation) amicus curiae brief in 50 copies (brief does not contain a consent statement) of 10 pages in support of Appellant x-appelle Wal-Mart's petition for rehearing en banc ;served on 2/28/07. (submitted with motion for leave to file) [04-16688, 04-16720] (RT)
Filed WLF's (Washington Legal Foundation) motion for leave to file amicus curiae brief in support of Appellant x-appellee's Wal-Mart's petition for rehearing en banc; served on 2/28/07 (PANEL w/copy of brief) [04-16688, 04-16720] (RT)
Filed original and 50 copies The Employers Group's amicus curiae brief (states parties consent to its filing) of 10 pages in support of Appellant x-appellee Wal-Mart's petition for rehearing en banc; served on 3/1/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Received attorney Brad Seligman for Appellee x-appellant Betty Dukes letter dated 2/27/07 re: addressed to West Publishing Company - amendment of counsel listing for atty Merrit Bennett. (CASEFILE) [04-16688, 04-16720] (RT)
Filed Appellees x-appellants Betty Dukes et al.'s opposition to appellant x-appellee's petition for rehearing en banc; served on 3/15/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed original and 50 copies Lawyers' Committee for Civil Rights Under Law et al.'s amici curiae brief (states all parties consent to its filing) of 10 pages in support of Appellees x-appellants Dukes opposition to petition for rehearing en banc; served on 3/26/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Lawyers' Committee for Civil Rights Under Law et al.'s motion for leave to file amici curiae brief in support of Appellees x-appellants Dukes in opposition to petition for rehearing en banc; served on 3/26/07 (motion may be moot - brief states all parties consent to the filing) (PANEL) [04-16688, 0416720] (RT)
Received US Women's Chamber of Commerce's amicus curiae letter brief in support of Plaintiff's opposition to the petition for rehearing en banc of 3 pages in original and 50 copies; served on 3/27/07 (PANEL AND ALL ACTIVE JUDGES AND ALL INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (GV)
Filed original and 50 copies The National Employment Lawyers Association et al.'s amici curiae brief (FRAP 29(a) compliance statement) of 10 pages in support Appellees x-appellants Dukes opposition to petition for rehearing en banc; served on 3/27/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Received Consumers Union's et al.'s (proposed) amici curiae brief in 50 copies of 8 pages in opposition to petition for rehearing en banc; served on 3/27/07; deficient: brief lacks a FRAP 29(a) statement; motion for leave required. Notified counsel: yes. [04-16688, 04-16720] (RT)
Received from US Women's Chamber of Commerce, proof of service to letter brief, served on 3/27/07.

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03/30/2007

78

03/30/2007

79

04/03/2007

80

04/10/2007

81

04/25/2007

82

04/27/2007

83

05/18/2007

84

06/01/2007

85

06/01/2007

86

06/06/2007

87

06/11/2007

88

06/19/2007

89

07/20/2007

90

12/11/2007

92

(CASEFILE) (RT)
Filed original and 50 copies AARP's amicus curiae brief of 9 pages (submitted with separate letter from atty Daniel B. Korman stating all parties have consented to the filing of the brief) in support of Appellees x-appellants Dukes opposition to petition for rehearing en banc; served on 3/22/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Consumers Union's et al. motion for leave to file amicus brief; served on 3/30/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES - with proposed amicus brief) (RT)
Received Amicus PUBLIC JUSTICE PC in 04-16688's brief in opposition to aplt Wal-Mart Stores' pet for rhrg en banc in 50 copies of 11 pages; served on 4/2/07 deficient: (Need mtn to file); Notified counsel. (PANEL & ALL ACTIVE JUDGES & ANY INTERESTED SENIOR JUDGE) [04-16688, 0416720] (MF)
Filed Public Justice, P.C.'s rquest leave to file an amicus curiae brief in opposition to Def/Aplt WalMart Stores, Inc's petition for rehearing en banc; served on 4/9/07 (PANEL AND ALL ACTIVE JUDGES AND ALL INTERESTED SENIOR JUDGES) [6142669] [04-16688, 04-16720] (GV)
Filed Appellant x-appellee Wal-Mart, Inc.'s additional citations, FRAP 28(j) letter, served on 4/25/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Appellee x-appellant Betty Dukes et al.'s additional citations, FRAP 28(j) letter, served on 4/26/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Appellant x-appellee Wal-Mart, Inc.'s additional citations, FRAP 28(j) letter, served on 5/18/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Appellee x-appellants Betty Dukes et al.'s additional citiations, FRAP 28(j) letter, served on 5/31/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Appellant x-appellee Wal-Mart, Inc.'s additional citations, FRAP 28(j) letter, served on 6/1/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Appellees x-appellants Dukes additional citations, FRAP 28(j) letter, served on 6/5/07 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Appellant x-appellee Wal-Mart, Inc.'s unopposed motion for exemption from Circuit Rule 45-5; served on 6/8/07 (PANEL) [04-16688, 04-16720] [04-16688, 04-16720] (RT)
Rec'd notice of change of address from attorney Debra Gardner for Appellee x-appellant Dukes: Debra Gardner, Public Justice Center, One N Charles St, Ste 200, Baltimore, MD 21201-3710. (CASEFILE) [04-16688, 04-16720] (RT)
Filed order ( Harry PREGERSON, Andrew J. KLEINFELD, Michael D. HAWKINS, Circuit Judges): The motions for exemption from Circuit Rule 45-5 filed on behalf of Julia Campins and Jaime Byrnes are GRANTED. Motions for leave to file following documents are GRANTED: California Employment Law Council's proposed amicus curiae brief in support of Wal-Mart's petition for rehearing; Equal Employment Advisory Council's amicus curiae letter brief in support of Wal Mart's petition for rehearing en banc; Chamber of Commerce of USA' amicus curiae brief in support of Wal Mart's petition for rehearing en banc; Product Liability Advisory Council's amicus curiae brief in support of Wal Mart's petition for rehearing en banc; Retail Industry Leaders Association's amicus curiae brief in support of Wal Mart's petition for rehearing en banc; Washington Legal Foundation's amicus curiae brief in support of Wal Mart's petition for rehearing en banc; The Employer's Group's amicus curiae brief in support of Wal Mart's petition for rehearing en banc; Lawyers' Committee for Civil Rights Under Law et al.'s amici curiae brief in support of Duke's opposition to the petition for rehearing en banc; Wal Mart, Inc.'s reply brief in support of its petition for rehearing en banc; US Women's Chamber of Commerece's amicus curiae letter brief in support of Dukes's opposition to the petition for rehearing en banc; The National Employment Lawyers Association et al.'s amici curiae brief in support of Dukes's opposition to the petition for rehearing en banc; Consumers Union's et al.'s proposed amici curiae brief in opposition to Wal Mart's petition for rehearing en banc; American Association of Retired Person's amici curiae brief in support of Duke's opposition to the petition for rehearing en banc; Public Justice's amicus brief in opposition to Wal Mart's petition for rehearing en banc. [04-16688, 04-16720] (RT)
FILED ORDER AND OPINION: vacating opinion AFFIRMED [53] in 04-16688, 04-16720, denying petition for enbanc rehearing [55] AFFIRMED. (Terminated on the Merits after Oral Hearing; Affirmed;

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12/14/2007

93

12/19/2007

94

12/21/2007

95

12/21/2007

96

01/08/2008

97

01/08/2008

98

01/09/2008

99

01/16/2008

100

01/17/2008

101

01/18/2008

102

01/18/2008

103

01/18/2008

104

01/18/2008

105

01/18/2008

106

01/22/2008

108

Written, Signed, Published. Harry PREGERSON, author; Andrew J. KLEINFELD, dissenting; Michael D. HAWKINS). FILED AND ENTERED JUDGMENT. [04-16688, 04-16720] (GV)
Filed Appellant x-appellee Wal-Mart, Inc.'s motion to extend time to file petition for rehearing until January 9, 2008; served on 12/14/07 (PANEL) [04-16688, 04-16720] (RT)
Filed Appellees x-appellants Dukes motion to extend time to file petition for rehearing until January 9, 2008; served on 12/18/07 (PANEL) [04-16688, 04-16720] (RT)
Received attorney Theodore J. Boutrous for Appellant x-appellee Wal-Mart, Inc.'s letter dated 12/21/07 re: motions for extensions of time to file petitions for rehearing. (PANEL by fax) [04-16688, 04-16720] (RT)
Filed order ( Harry PREGERSON, Andrew J. KLEINFELD, Michael D. HAWKINS, Circuit Judges): The Court issued its revised opinion on December 11, 2007. Pursuant to Federal Rule of Appellate Procedure 26(b), both parties filed unopposed motions for extensions of time to file their petitions for rehearing en banc. Those motions are GRANTED. The deadline for filing is hereby extended to and including January 9, 2008. (phoned/faxed counsel for parties: 4:10 pm) [04-16688, 04-16720] (RT)
Filed original and 50 copies Appellant Wal-Mart, Inc. in 04-16688 petition for panel rehearing and petition for rehearing en banc. p.pages, served on 1/8/08 (PANEL AND ALL ACTIVE JUDGES AND ANY INTERESTED SENIIOR JUDGES) [04-16688, 04-16720] (JE)
Filed Appellant Wal-Mart, Inc. in 04-16688's motion to take judicial notice. [04-16688, 04-16720] served on 1/8/08 [6392623] FEDEX TO PANEL [04-16688, 04-16720] (JE)
Filed original and 3 copies Appellees Betty Dukes, Patricia Surgeson, Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski, Page Cleo in 04-16688, cross-Appellants Betty Dukes, Patricia Surgeson, Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski, Page Cleo in 0416720 petition for rehearing, 13 p.pages, served on 1/8/08 (FEDEX TO PANEL) [04-16688, 04-16720] (LA)
Filed original and 50 copies Retail Industry Leaders Association's amicus curiae brief in support of Appellant x-appellee Wal Mart Stores, Inc.'s petition for rehearing en banc of 11 pages; served on 1/15/08 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed original and 50 copies The Employers Group amicus curiae brief in support of Appellant xappellee Wal Mart Stores, Inc.'s petition for rehearing en banc of 12 pages; served on 1/17/08 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed original and 50 copies Product Liability Advisory Council, Inc.'s amicus curiae brief (brief states all parties consent to its filing) of 50 pages in support of Appellant x-appellee Wal Mart Stores, Inc's petition for rehearing en banc; served on 1/18/08 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed original and 50 copies Washington Legal Foundation's amicus curiae brief of 15 pages (brief states all parties consent to its filing) in support of Appellant x-appellee Wal Mart Stores, Inc.'s petition for rehearing en banc; served on 1/17/08 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed original and 50 copies Equal Employment Advisory Council's (EEAC) amicus curiae letter brief (states all parties consent to its filing) of 10 pages in support of Appellant x-appellee Wal Mart Stores, Inc.'s petition for rehearing en banc; served on 1/17/08 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Received California Employment Law Council's (proposed) amicus curiae brief in 50 copies of 15 pages in support of Appellant x-appellee Wal Mart Stores, Inc.'s petition for rehearing en banc; served on 1/17/08; deficient: submitted with motion for leave to file brief. (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed California Employment Law Council's motion (application) for leave to file amicus curiae brief in support of petition for rehearing en banc; served on 1/17/08 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) (RT)
Filed original and 4 copies NAACP Legal Defense & Education Fund, et al.'s amici curiae brief (states all parties consent to its filing) of 21 pages in support of Appellees x-appellants Dukes petition for rehearing; served on 1/18/08 (PANEL) [04-16688, 04-16720] (RT)

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04/08/2008

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04/18/2008

110

05/15/2008

111

06/16/2008

112

06/23/2008

113

2 pg, 28.02 KB

07/14/2008

114

07/14/2008

115

07/24/2008

116

07/24/2008

118

07/24/2008

117

07/28/2008

119

07/28/2008

120

08/11/2008

121

09/08/2008

122

2 pg, 23.04 KB

Filed original and 50 copies Chamber of Commerce of USA's amicus curiae brief of 13 pages (states all parties consent to its filing) in support of Appellant x-appellee Wal Mart Stores, Inc.'s petition for rehearing en banc; served on 1/18/08 (PANEL & ALL ACTIVE & INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (RT)
Filed Appellant Wal-Mart, Inc.'s additional citations, 28(j) letter. Served on 04/08/2008. ( fed-ex panel) [04-16688, 04-16720] (LC)
Filed Appellees' response to aplt's additional citations. Served on 04/18/2008. (panel) [04-16688, 0416720] (JE)
Received notice of change of address dated 05/12/2008 from Ann Elizabeth Reesman, Esq. and Rae T. Vann, Esq. counsel for EEAC in 04-16688, 04-16720, 07-15838, 04-17295, and 06-16864. Current new address: NORRIS TYSSE LAMPLEY & LAKIS, LLP, 1501 M Street, NW., Suite 400, Washington, DC 20005. [04-16688, 04-16720] (EU)
Received notice of change of address dated 06/13/2008 from Joel E. Krischer, Esq. for The Employers Group in 04-16688. Current new address: LATHAM & WATKINS LLP, 355 South Grand Avenue, Los Angeles, Ca, 90071. [04-16688, 04-16720] (SK)
Filed order (HARRY PREGERSON, ANDREW J. KLEINFELD and MICHAEL DALY HAWKINS): Plaintiffs are hereby ordered to file a response to Defendant’s Petition for Panel Rehearing and Petition for Rehearing En Banc. Defendant is hereby ordered to file a response to Plaintiffs’ Petition for Panel Rehearing. See FED. R. APP. P. 35(e) and 40(a)(3); Circuit Rule 40-1(a). Responses must be received within 21 days of the date of this order. [04-16688, 04-16720] (AF)
Filed original and 3 copies of Appellant/ Cross-Appellee Wal-Mart, Inc.'s response to Appellee/ CrossAppellant's petition for panel rehearing, 17 pages; served on 07/14/2008. (PANEL) PLEASE NOTE: THE ATTACHED DOCUMENT IS A DOCUMENT INTERNAL TO THE COURT AND IS NOT ACCESSIBLE ON PACER OR ECF. [04-16688, 04-16720] (LC)
Filed original and 50 copies of Appellee/ Cross-Appellant' Betty Dukes, et al's opposition to Appellant/ Cross-Appellee's petition for rehearing en banc; 18 pages; served on 06/11/2008. (PANEL-ACTIVE JUDGES-ANY INTERESTED SENIOR JUDGES) PLEASE NOTE: THE ATTACHED DOCUMENT IS A DOCUMENT INTERNAL TO THE COURT AND IS NOT ACCESSIBLE ON PACER OR ECF. [0416688, 04-16720] (LC)
Filed original and 50 copies of Amicus Center for Constitutional Rights, Consumers Union, amd Nation Consumer Law Center's amicus brief in opposition to petition for rehearing en banc, 11 pages. Served on 07/24/2008 [04-16688, 04-16720] (PANEL - ALL ACTIVE JUDGES - ANY INTERESTED SENOIOR JUDGES) (LC)
Filed original and 50 copies of Nation Employment Lowyers Association and The Legal Aid SocietyEmployment Law Center amicus brief in opposition to petition for rehearing en banc, 15 pages; served on 07/23/2008 [04-16688, 04-16720] (PANEL - ALL ACTIVE JUGES - AND ANY INTERESTED SENIOR JUDGES) (LC)
ENTRY UPDATE: Received Amicus Center for Constitutional Rights, Consumers Union, amd Nation Consumer Law Center's motion to file amicus brief in opposition to petition for rehearing en banc; served on 7/24/08 [04-16688, 04-16720] (casefile - parties already granted amicus curaie)--[Edited 07/25/2008 by LC] (LC)
Filed Appellant Wal-Mart, Inc.'s motion to file reply in support of petition for rehearng en banc. Served on 07/28/2008. [04-16688, 04-16720] (fed-ex PANEL) (LC)
Received Appellant Wal-Mart, Inc.'s reply brief in support of petition for rehearing en banc. Served on 07/28/2008 [04-16688, 04-16720] (motion pending w/ PANEL) (fed-ex PANEL) (LC)
Received Impact Fund's 28 (j) letter, dated 08/11/2008, in support appellee/ cross-appellant's opposition to petition for rehearing en banc. (PANEL - ALL ACTIVE JUDGES - ANY INTERESTED SENIOR JUDGES). [04-16688, 04-16720] (LC)
Filed order (HARRY PREGERSON, ANDREW J. KLEINFELD and MICHAEL DALY HAWKINS)Defendant’s Motion for Leave to File Reply Brief in Support of Petition for Rehearing En Banc is hereby GRANTED. Defendant’s Reply Brief, received on July 28, 2008, is hereby ordered FILED. [04-16688, 04-16720] (KKW)

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09/09/2008

123

09/16/2008

124

09/24/2008

125

10/02/2008

126

12/01/2008

127

01/05/2009

128

60 pg, 2.22 MB

01/05/2009

129

60 pg, 2.13 MB

01/08/2009

130

2 pg, 30.77 KB

01/15/2009

131

2 pg, 26.84 KB

02/04/2009

152

21 pg, 720.88 KB

02/13/2009

133

2 pg, 11.16 KB

02/17/2009

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2 pg, 30.39 KB

02/18/2009

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02/23/2009

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2 pg, 27.91 KB

02/24/2009

153

21 pg, 720.88 KB

02/26/2009

137

02/26/2009

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02/26/2009

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Filed original and 50 copies of Appellant Wal-Mart, Inc.'s reply brief in support of petition for rehearing en banc, 9 pages; Served on 07/28/2008. (PANEL - ALL ACTIVE JUDGES - ANY INTERESTED SENIOR JUDGES) [04-16688, 04-16720] (LC)
Mail returned on 09/15/2008 addressed to Terri L. Ross, Esquire for The Retail Industry Leaders Association in 04-16688, re: September 8th order. Resending to: casefiles-not lead counsel. [0416688, 04-16720, 04-80057] (HC)
Mail returned on 09/16/2008 addressed to Barbara A. Johnson, Esquire for Wal-Mart, Inc. in 0416688, re: September 8th order. Resending to: casefiles-not lead counsel. [04-16688, 04-16720] (HC)
Filed motion Dukes, et al's motion for exemption from Circuit Rule 46-5 and declaration of Jason H. Tarricone in support of motion; served on 09/30/2008. (faxed PANEL) [04-16688, 04-16720] (LC)
Received notice of change of address dated 12/01/2008 from Mr. Mark Andrew Perry for Wal-Mart, Inc. in 04-16688. Current new address: GIBSON DUNN & CRUTCHER LLP, 555 Mission Street, Suite 3000, San Francisco, Ca, 94105. [04-16688, 04-16720] (SK)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 01/05/2009. [6756943] [04-16688, 04-16720] (TJB)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 01/05/2009. [6757135] [04-16688, 04-16720] (TJB)
Electronically-filed document [129] Additional Citations 28j Filed (ECF Filing) is stricken because there is an error in the document. Documnt filed twice. [04-16688, 04-16720] (LC)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688, Appellants Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16720 Correspondence: Response to 28(j) letter. Date of service: 01/15/2009 [6771869] [04-16688, 0416720] (JS)
Received 30 add'l copies, Brief of Amicus Curiae Product Liability Advisory Council, Inc. in support of Wal-Mart Stores, Inc's petition for rehearing en banc, 11-pgs; original filed on 01/18/08. (EN BANC COURT) (per ct's order filed 02/17/09) [04-16688, 04-16720] (RR)
Filed En Banc Order for PUBLICATION KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 353. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit. Judges McKeown, Rawlinson and Bybee did not participate in the deliberations or vote in this case. [04-16688, 04-16720] (PH)
Filed order (ALEX KOZINSKI): En banc oral argument will take place during the week of March 23, 2009, in San Francisco, California. The date and time will be determined by separate order. Within seven days from the date of this order, the parties shall forward to the Clerk of Court thirty additional copies of the original briefs and excerpts of record. [04-16688, 04-16720] (AF)
CALENDARED: week of 03/23/2009 San Francisco, CA Courtroom 1 - exact date & time to be determined by further order [04-16688, 04-16720] (AW)
Filed order (ALEX KOZINSKI)Appellees’ motion for an exemption from Circuit Rule 46-5 is granted. [04-16688, 04-16720] (KKW)
Received 30 add'l copies, Brief of Amicus Curiae Product Liability Advisory Council, Inc. in support of Wal-Mart Stores, Inc's petition for rehearing en banc; 11-pgs; original filed on 01/18/08. (EN BANC COURT) [04-16688, 04-16720] (RR)
Received 30 copies of Appellee/ Cross-Appellant's Betty Dukes, et al's second/opening brief on crossappeal filed 1/3/05 with 3 vols of Supp EOR. [04-16688, 04-16720] (LC)
Received 30 copies of Appellee/ Cross-Appellant's Betty Dukes, et al's reply brief in support of crossappeal filed 2/14/05 with 1 vol. of Supp EOR. [04-16688, 04-16720] (LC)
Received 30 copies of Amicus The National employment Lawyers Association, et al's brief filed 1/10/05. [04-16688, 04-16720] (LC)

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2 pg, 28.78 KB

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4 pg, 121.73 KB

03/05/2009

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48 pg, 125.6 KB

03/06/2009

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12 pg, 77.69 KB

03/06/2009

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30 pg, 1.09 MB

03/09/2009

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28 pg, 55.27 KB

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2 pg, 32.35 KB

03/10/2009

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1 pg, 475.97 KB

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2 pg, 32.22 KB

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4 pg, 34.78 KB

03/11/2009

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Received 30 copies of Amicus The Lawyers Committee for Civil Rights under the law, et al's brief filed 1/13/05. [04-16688, 04-16720] (LC)
Received 30 copies of Amicus Center for Constitutional Rights, et al's brief filed 1/10/05. [04-16688, 04-16720] (LC)
Received 30 copies of Amicus AARP, et al's brief filed 1/10/05. [04-16688, 04-16720] (LC)
Received 30 copies of Amicus The Retailer Industry Leaders Association brief filed on 12/08/2004 [0416688, 04-16720] (TB)
Received 30 copies of Amicus The Chamber of Commerce of the United States brief filed on 12/09/2004 [04-16688, 04-16720] (TB)
Received 30 copies Appellant Cross Appellee Wal-Mart, Inc.'s first brief on cross-appeal, (Informal: No) of 61 pages; 5 vol. of EOR; filed on 11/29/2004. [04-16688, 04-16720] (TB)
Received 30 copies Appellant Cross Appellee Wal-Mart, Inc.'s third brief on cross-appeal (Informal: No) of 59 pages; 1 vol. of Supp EOR; filed on 01/28/2005. [04-16688, 04-16720] (TB)
Received 30 copies Amicus Curiae Brief of EEAC (Equal Employment Advisory Council) in support of Appellant Cross Appellee Wal Mart Stores, Inc and in support of reversal of 29 pages; filed on 12/08/2004. [04-16688, 04-16720] (TB)
Filed order (ALEX KOZINSKI) calendar case in. [04-16688, 04-16720] (KKW)
incorrect docket entry deleted.--[Edited 03/03/2009 by AM] (AM)
UPDATED CASE CALENDARED: 03/24/2009 2:00 PM San Francisco, CA Courtroom 1 [04-16688, 04-16720] (AM)
Notice of Oral Argument on MARCH 24, 2009 Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Open attached documents to view details about your case. [04-16688, 04-16720] (AM)
Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Pacific Legal Foundation. Date of service: 03/05/2009. [6833991] [04-16688, 04-16720] (TS)
Submitted (ECF) Letter brief for review. Submitted by Amicus Curiae EEAC in 04-16688. Date of service: 03/06/2009. [6836098] [04-16688, 04-16720] (RTV)
Filed original and 30 copies of Chamber of Commerce of the United States in 04-16688 amicus brief of 20 pages. Served on 03/06/2009. (EN BANC PANEL)[04-16688, 04-16720] (LC)
Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae AARP in 04-16688. Date of service: 03/09/2009. [6837944] [04-16688, 02-80008, 04-16720, 04-80057] (DBK)
Filed clerk order: Electronically-filed document [156] Brief Submitted for Review (ECF Filing) is stricken because there is an error in the document. Please re-file document in pertaining case only. File document in lead appeal #04-16688 and only check box for cross- appeal #04-16720. [04-16688, 02-80008, 04-16720, 04-80057] (LC)
Filed (ECF) notice of appearance of Pamela Coukos for Amicus Curiae NELA in 04-16688, 04-16720. Date of service: 03/10/2009. [6839890] [04-16688, 04-16720, 04-80057] (PC)
Filed clerk order: Electronically-filed document [158] Notice of Appearance (ECF Filing) is stricken because there is an error in the document. Appeal # 04-80057 closed 8/13/04. Please re-file doucment in lead appeal #04-16688 and cross appeal #04-16720 only. [04-16688, 04-16720, 0480057] (LC)
corrected Notice of Oral Argument on MARCH 24 2009 Calendar in SF. Please open attached documents to view details about your case. note argument time allotment [04-16688, 04-16720] (AW)
Filed (ECF) notice of appearance of Pamela Coukos for Amicus Curiae NELA in 04-16688, 04-16720. Date of service: 03/11/2009. [6841268] [04-16688, 04-16720] (PC)
Added attorney Pamela Coukos for NELA. [04-16688, 04-16720] (LC)

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Terminated Sandi Farrell for NELA. [04-16688, 04-16720] (LC)
Filed (ECF) notice of appearance of Matthew Colangelo for Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. in 04-16688. Date of service: 03/12/2009. [6842212] [04-16688, 04-16720] (MC)
Added attorney Matthew Colangelo for NAACP Legal Defense and Educational Fund, Inc. [04-16688, 04-16720] (LC)
Terminated Robert H. Stroup for NAACP Legal Defense and Educational Fund, Inc. [04-16688, 0416720] (LC)
Filed clerk order: [155] EEAC's letter brief submitted 3/6/09 is ordered filed. [04-16688, 04-16720] (LC)
Filed (ECF) Brief Amici Curiae of AARP and California Women's Law Center Motion to become amicus curiae. Date of service: 03/12/2009. [6843107] [04-16688, 04-16720] (DBK)
Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae NELA in 04-16688. Date of service: 03/10/2009. [6843144] [04-16688, 04-16720] (PC)
Filed clerk order: Electronically-filed document [168] Motion (ECF Filing) , [168] motion to become amicus is stricken because there is an error in the document: wrong event used on appellate ecf. No motion attached, only brief. Please re-submitted your brief under the category for amicus brief for review only. [04-16688, 04-16720] (LC)
Filed clerk order: Amicus Brief [169] submitted by NELA is ordered filed. [04-16688, 04-16720] (LC)
ENTRY UPDATE: Disregard order striking document as it was issued in error. Filed clerk order: Electronically-filed document [169] Brief Submitted for Review (ECF Filing) is stricken because there is an error in the document. [04-16688, 04-16720] See Order. (MT)
Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae AARP in 04-16688. Date of service: 03/13/2009. [6844323] [04-16688, 04-16720] (DBK)
Filed clerk order: Amicus Brief [172] submitted by AARP is ordered filed. [04-16688, 04-16720] (LC)
Deleted Incorrect Docket Entry (PK)
Submitted (ECF) Amicus brief for review. Submitted by Amici Curiae Center for Constitutional Rights and Consumers Union in 04-16688. Date of service: 03/13/2009. [6844508] [04-16688, 04-16720] (BLL)
Filed clerk order: Amicus Brief [174] filed by amicus curiae Consumers Union and Center for Constitutional Rights is ordered filed. [04-16688, 04-16720] (LC)
Submitted (ECF) Amicus brief for review. Submitted by - Public Justice, P.C. in 04-16688, 04-16720. Date of service: 03/13/2009. [6845353] [04-16688, 04-16720] (JRW)
Terminated Sheila Thomas for Betty Dukes in 04-16688 and Betty Dukes in 04-16720 [04-16688, 0416720] (LN)
Filed clerk order: Electronically-filed document [175] Brief Submitted for Review (ECF Filing) is stricken because there is an error in the document. Wrong event used. Filer has submitted a motion to become amicus and amicus brief. If all parties consent, a motion to become amicus is not necessary, but non-opposition should be noted in the brief. To submit a motion & brief, please use the motions category. If you would like to submit just the brief, with consent noted, please use the brief category. [04-16688, 04-16720] (LC)
Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae NAACP Legal Defense and Educational Fund, Inc. in 04-16688. Date of service: 03/13/2009. [6845475] [04-16688, 04-16720] (MC)
Filed clerk order: Amicus Brief [178] filed by amicus curiae' NAACP Legal Defense and Educational

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03/13/2009

180

21 pg, 750.47 KB

03/13/2009

1 pg, 26.69 KB

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181

4 pg, 157.4 KB

03/16/2009

182

2 pg, 31.66 KB

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1 pg, 27.54 KB

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184

117 pg, 2.72 MB

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1 pg, 27.2 KB

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6 pg, 196.13 KB

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25 pg, 324.34 KB

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18 pg, 66.5 KB

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41 pg, 149.01 KB

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2 pg, 35.55 KB

Fund, et al. on 3/13/09 is ordered filed. [04-16688, 04-16720] (LC)
Mail returned on 02/27/2009 addressed to Barbara A. Johnson, Esquire for Wal-Mart, Inc. in 0416688, 04-16720, re: Febrauary 17, 2009 Order. Resending to: casefile- unable to reach attoryney but Appellant has co-counsel.. [04-16688, 04-16720] (MT)
Submitted (ECF) Amicus brief for review. Submitted by - Public Justice, P.C. in 04-16688, 04-16720. Date of service: 03/13/2009. [6845670] [04-16688, 04-16720] (JRW)
Filed clerk order: Amicus Brief [180] filed by Public Justice, P.C. is ordered filed. [04-16688, 04-16720] (LC)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 03/16/2009. [6846827] [04-16688, 04-16720] (TJB)
Filed order (ALEX KOZINSKI)Leave is granted to file the amicus briefs submitted by the AARP, Consumers Union, NAACP Legal Defense and Educational Fund and the Pacific Legal Foundation. The amicus letter brief submitted by the Equal Employment Advisory Council shall not be filed because it is not a “short letter” intended only “to join in the arguments or factual statements of a party or other amici.” Cir. Advisory Comm. Note to 9th Cir. R. 29-1. Nor does it meet the requirements of an amicus brief. See Fed. R. App. P. 29. Any further amicus briefs must be filed by March 19, 2009. Briefs submitted after that date will not be considered. [04-16688, 04-16720]--[Edited 03/18/2009 by BY]--[Edited 03/18/2009 by BY] (KKW)
Filed clerk order: Electronically-filed document [181] Additional Citations 28j Filed (ECF Filing) is stricken per counsel request. . [04-16688, 04-16720] (LC)
Filed (ECF) Appellee Wal-Mart, Inc. in 04-16720 citation of supplemental authorities. Date of service: 03/16/2009. [6847404] [04-16688, 04-16720] (TJB)
Terminated Charles V. Firth for Karen Williamson, Patricia Surgeson, Christine Kwapnoski, Deborah Gunter, Betty Dukes, Page Cleo and Edith Arana in 04-16688 [04-16688, 04-16720] (LN)
Terminated Charles V. Firth for Karen Williamson, Patricia Surgeson, Christine Kwapnoski, Deborah Gunter, Betty Dukes, Page Cleo and Edith Arana in 04-16720, Jonathan Smith for Betty Dukes in 0416688 and Betty Dukes in 04-16720 [04-16688, 04-16720] (LN)
Terminated Ann Elizabeth Reesman for EEAC in 04-16688 and EEAC in 04-16720 [04-16688, 0416720] (LN)
Terminated Deborah J. Vagins for Betty Dukes in 04-16688 and Betty Dukes in 04-16720 [04-16688, 04-16720] (LN)
Filed clerk order: Amicus Brief [154] , [154]. submitted by amicus curiae Pacific Legal Foundation on 3/5/09 is ordered filed per 3/16/09 order. [04-16688, 04-16720] (LC)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 03/18/2009. [6850755] [04-16688, 04-16720] (JDL)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 03/19/2009. [6851671] [04-16688, 04-16720] (JDL)
Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae EEAC in 04-16688. Date of service: 03/19/2009. [6851672] [04-16688, 04-16720] (RTV)
Submitted (ECF) Amicus brief for review and filed Motion to become amicus curiae. Submitted by Equal Employment Opportunity Commission. Date of service: 03/19/2009. [6851822] [04-16688, 0416720] (BLS)
ENTRY UPDATED: Filed clerk order: Electronically-filed document [192] Brief Submitted for Review (ECF Filing) , [192] Motion (ECF Filing) , [192] motion to become amicus by Equal Employment Opportunity Commission, is stricken because there is an error in the document. No motion attached. Please re-file you document using the amicus brief relief only. [04-16688, 04-16720]--[Edited

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1 pg, 26.46 KB

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1 pg, 472.62 KB

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4 pg, 145.82 KB

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1 pg, 23.76 KB

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1 pg, 23.77 KB

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3 pg, 151.85 KB

03/19/2009 by LC] (LC)
Entered appearance of Amicus Curiae EEOC. [04-16688, 04-16720] (LC)
Submitted (ECF) Amicus brief for review. Submitted by Amicus Curiae EEOC in 04-16688. Date of service: 03/19/2009. [6852156] [04-16688, 04-16720] (BLS)
Filed (ECF) notice of appearance of Barbara L. Sloan for Amicus Curiae EEOC in 04-16720. Date of service: 03/19/2009. [6852167] [04-16688, 04-16720] (BLS)
Filed clerk order: Amicus Brief [195] submitted by EEOC on 3/19/09 has been filed. [04-16688, 0416720] (LC)
Filed (ECF) notice of appearance of James M. Beck for Amicus Curiae Product Liability Advisory Council in 04-16688. Date of service: 03/20/2009. [6853220] [04-16688, 04-16720] (JMB)
Terminated Richard L. Berkman for Product Liability Advisory Council. [04-16688, 04-16720] (LC)
Added attorney James M. Beck for Product Liability Advisory Council. [04-16688, 04-16720] (LC)
Filed (ECF) Appellee Wal-Mart, Inc. in 04-16720 citation of supplemental authorities. Date of service: 03/20/2009. [6853683] [04-16688, 04-16720] (TJB)
Filed (ECF) notice of appearance of Audrey J. Wiggins for Amicus Curiae Lawyers' Committee For Civil Rights Under Law in 04-16688. Date of service: 03/23/2009. [6854539] [04-16688, 04-16720] (AJW)
Added attorney Audrey Jordan Wiggins for Lawyers' Committee For Civil Rights Under Law. [0416688, 04-16720] (LC)
Terminated Michael Foreman for Lawyers' Committee For Civil Rights Under Law. [04-16688, 0416720] (LC)
Filed clerk order (Deputy Clerk:mcd ): Denying Reuters' request to allow still photography in the courtroom. [04-16688, 04-16720] (MD)
Filed clerk order (Deputy Clerk:mcd ): Denying Courtroom View Network's request to allow video recording in the courtroom. [04-16688, 04-16720] (MD)
ARGUED AND SUBMITTED TO ALEX KOZINSKI, STEPHEN R. REINHARDT, PAMELA ANN RYMER, MICHAEL DALY HAWKINS, BARRY G. SILVERMAN, SUSAN P. GRABER, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, CARLOS T. BEA and SANDRA S. IKUTA. [7323734] (JI)
Added attorney Terisa Eileen Chaw for NELA, in case 04-16688 Terisa Eileen Chaw for NELA, in case 04-16720. [04-16688, 04-16720] (LN)
Terminated Marissa M. Tirona for NELA in 04-16688 and NELA in 04-16720 [04-16688, 04-16720] (LN)
Terminated Terri L. Chase for The Retail Industry Leaders Association in 04-16688 and The Retail Industry Leaders Association in 04-16720 [04-16688, 04-16720] (LN)
Terminated Barbara A. Johnson for Wal-Mart, Inc. in 04-16688 and Wal-Mart, Inc. in 04-16720 [0416688, 04-16720] (LN)
Added attorney Barbara L. Johnson for Wal-Mart, Inc., in case 04-16688 Barbara L. Johnson for WalMart, Inc., in case 04-16720. [04-16688, 04-16720] (LN)
Filed appearance notice of Attorney(s) Terisa Eileen Chaw for party(s) Amicus Curiae NELA. [0416688, 04-16720] (LC)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 04/29/2009. [6902189] [04-16688, 04-16720] (TJB)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 05/07/2009. [6912730] [04-16688, 04-16720] (BS)

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Mail returned to Terri L. Ross on 04/01/2009 addressed to , re: March 3, 2009 Order. Resending to: casefile- attorney not on case. [04-16688, 04-16720] (MT)
Mail returned on 04/23/2009 addressed to Barbara L. Johnson for Wal-Mart, Inc. in 04-16688, 0416720, re: hearing schedule. Resending to: casefile-no longer attorney on case. [04-16688, 04-16720] (MT)
Mail returned on 04/23/2009 addressed to Terri L. Ross , re: March 12, 2009 Order. Resending to: casefile-no longer attorney on case. [04-16688, 04-16720] (MT)
Mail returned on 04/23/2009 addressed to , re: February 17, 2009 Order. Resending to: casefile-not attorney on case. [04-16688, 04-16720] (MT)
Mail returned on 03/30/2009 addressed to , re: March 16, 2009 Order. Resending to: casefile-no longer attorney of record. [04-16688, 04-16720] (MT)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 07/17/2009. [6995694] [04-16688, 04-16720] (JDL)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 07/22/2009. [6999701] [04-16688, 04-16720] (TJB)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 07/28/2009. [7005738] [04-16688, 04-16720] (TJB)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 08/03/2009. [7013290] [04-16688, 04-16720] (TJB)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 08/07/2009. [7019802] [04-16688, 04-16720] (BS)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 08/10/2009. [7022155] [04-16688, 04-16720] (BS)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 08/14/2009. [7027989] [04-16688, 04-16720] (JDL)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 08/20/2009. [7034869] [04-16688, 04-16720] (TJB)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 01/12/2010. [7192084] [04-16688, 04-16720] (JDL)
Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 01/12/2010. [7192091] [04-16688, 04-16720] (JDL)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 01/15/2010. [7196759] [04-16688, 04-16720] (TJB)
Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service: 01/15/2010. [7196764] [04-16688, 04-16720] (TJB)
Filed (ECF) notice of appearance of Noreen Ann Farrell for Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688, Appellants Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16720. Date of service: 01/20/2010. [7200677] [04-16688, 0416720] (NAF)
Added attorney Noreen Ann Farrell for appellant/ cross-appellees Dukes, et al [7201471] [04-16688, 04-16720] (LC)

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Terminated Debra Smith for appellant/ cross-appellees Dukes, et al [7201474] [04-16688, 04-16720] (LC)

02/09/2010

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2 pg, 36.59 KB

Filed (ECF) notice of appearance of Arcelia Leticia Hurtado for Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 0416688, Appellants Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16720. Date of service: 02/09/2010. [7225124] [0416688, 04-16720] (AH)

02/10/2010

235

Added attorney Arcelia Hurtado for Dukes, et al. [7227829] [04-16688, 04-16720] (LC)

02/10/2010

236

Terminated Irma Dolores Herrera for Betty Dukes, et al. [7227836] [04-16688, 04-16720] (LC)

02/23/2010

237

4 pg, 52.97 KB

Filed (ECF) notice of appearance of for Amicus Curiae CELC in 04-16688, 04-16720. Date of service: 02/23/2010. [7241840] [04-16688, 04-16720] (JH)

02/23/2010

238

Added attorney Jane Howard-Martin for Amicus Curiae CELC [7241945] [04-16688, 04-16720] (LC)

02/23/2010

239

Terminated Maureen K. Bogue for CELC [7241948] [04-16688, 04-16720] (LC)

04/07/2010

240

Filed (ECF) Appellant Wal-Mart, Inc. in 04-16688 citation of supplemental authorities. Date of service:

16 pg, 106.56 KB 04/07/2010. [7293579] [04-16688, 04-16720] (TJB)

04/12/2010

241

3 pg, 134.66 KB

Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 citation of supplemental authorities. Date of service: 04/12/2010. [7298120] [04-16688, 04-16720] (JDL)

04/26/2010

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142 pg, 1018.39 KB

FILED OPINION (ALEX KOZINSKI, STEPHEN R. REINHARDT, PAMELA ANN RYMER, MICHAEL DALY HAWKINS, BARRY G. SILVERMAN, SUSAN P. GRABER, RAYMOND C. FISHER, RICHARD A. PAEZ, MARSHA S. BERZON, CARLOS T. BEA and SANDRA S. IKUTA) AFFIRMED IN PART; REMANDED IN PART. Each party shall bear its own costs on appeal. Judge: AK Dissenting, Judge: MDH Authoring, Judge: SPG Concurring, Judge: SSI Dissenting. FILED AND ENTERED JUDGMENT. [7313593] [04-16688, 04-16720] (RP)

04/27/2010

243

2 pg, 169.77 KB

Filed (ECF) Appellees Edith Arana, Page Cleo, Betty Dukes, Deborah Gunter, Christine Kwapnoski, Patricia Surgeson and Karen Williamson in 04-16688 Correspondence: Date Correction for Footnote 2 of En Banc Opinion. Date of service: 04/27/2010 [7316959] [04-16688, 04-16720] (JDL)

07/09/2010

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2 pg, 41.86 KB

Received letter from the Supreme Court dated 07/07/2010 re: The application for an ext of time to file a petition for writ of certiorari has be granted to and including 8/25/10. [7401551] [04-16688, 0416720] (LC)

08/26/2010

246

1 pg, 11.49 KB

Received notice from the Supreme Court: petition for certiorari filed on 08/25/2010. Supreme Court Number 10-277. [7453259] [04-16688, 04-16720] (LC)

10/20/2010

247

2 pg, 84.9 KB

MANDATE ISSUED.(AK, SR, PAR, MDH, BGS, SPG, RCF, RAP, MSB, CTB and SSI) [7516125] [0416688, 04-16720] (LC)

12/08/2010

248

1 pg, 48.95 KB

Received notice from the Supreme Court. Petition for certiorari GRANTED on 12/06/2010 Supreme Court Number 10-277. [7571647] [04-16688, 04-16720] (SW)

02/01/2011

249

Transmitted to the U.S. Supreme Court: 1 volume(s) of 9th Circuit U.S. Court of Appeals record proceedings; the district court will forward their record directly. U.S. Supreme Court Case Number: 10277. Tracking Information: FedEx 943607181932. [7632778] [04-16688, 04-16720] (SS)

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 1

Plaintiff.s/Appellees/Cross-Appellants, v.

Defendant!A p p e l l a n t!Cross·· Appellee.

APPEAL FROM

UNITED STATES DISTRICT COURT

THE NORTHERN

OF CALIFORNIA

OPENING

FOR APPELLEES AND CROSS-APPELLANTS

JOSEPH M. SELLERS CHRISTINE E. WEBBER CHARLES E. TOMPKINS, JULIE GOLDSMITH REISER COHEN, MILSTEIN, HAUSFELD
TOLL, PLLC 1100 New York Ave., #500 Washington, D.C. 20005-3964 (202)408-4600

SELIGMAN Counsel ofRecord JOCELYN D. LARKIN THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 (510) 845-3473

Attorneys for Plaintiffs-Appellees and Cross-Appellants
(Additional Counsel Listed Inside)

5260 '.§r"'~Tn.r Avenue

Oakland, 94618

10)

9

ELIZABETH A. LAWRENCE COWELL & BOWE,
595 Market StTeet, Suite 1400 San Francisco, California 94105 (415) 597-7200

PUBLIC JUSTICE 500 Lexington Street Baltimore, 21202 (410) 625-9409

SHAUNA MARSHALL

HASTINGS

OF

200 McAllister Street

San Francisco, CA 94102

(415) 565-4685

MERIT BENNETT MERIT BENNETT, P.C. 460 St. Michaels Drive, Suite 703 Santa Fe, NM 87505 (505) 983-9834

................ , .......................... 3

...................................... 4

......................................... 6

..................... " ............................... 7

L The

Court

ot Abuse

Satisfy the

Commonality ......... 7

Wal-Mart Misrepresents the Evidence Findings on Commonality .. . .................................. 8

Subjective Decision-Making Is a Practice That May be Challenged in a Patten1 or Practice Case ................ 14

Plaintiffs' Statistical Analysis Supports a Finding of

Conm1onality ...............................

19

1. Plaintiffs' Statistical Analyses Amply Demonstrate Common Issues ............................. 21

Wal-Mart's Statistical Analyses Were Thoroughly Rebutted and Their Theoretical Foundation Undermined ....................... 23

3. Acceptance of Aggregated Statistics Support

Commonality is Not Legal

................ .

The District Court's Decision to Admit the Testimony Plaintiffs' Sociologist Was Not Clearly Enoneous ........ 27

....................... 31

.. 31

1. Teamsters

Not Mandate

. . . . . . . . . . . . .. . .................... 31

Statistical Approaches Can

Accurate than

Individual . . .. , ...... , , ............... 36

3. The Civil Rights Act 1991 .................... 39

4. Due Process Does Not Require Individual Hearings . 43

5. The Record Fully Supports the District Court's Decision to Use Statistical Methods at Stage ..... 46

B. The Proposed Procedure for the Award of Punitive Damages Does Not Violate Due Process ....................... 47

COURT

CERTIFIED

CLASS

(b)(2) BECAUSE INJUNCTIVE RELIEF

PREDOMINATES .................................. "., 49

Certification Under 23(b)(2) Is Appropriate Equitable Relief Predominates . . . . . . . . . . . . . . . . . , ...... 51

Back Pay Is Properly Treated as a Form of Injunctive Relief Under Title ............... , . . . . . . . . . .. . ...... .

A Rule 23(b)(2) Class May Seek Punitive Damages ...... 54

11

· . . . . . . . . . . . . . . . . .. ............................. . 61
111

1) ............................................................

re 1984) ......................................................... .

v. Moody, (1975) ............................................................. "........ ... 59

Allen v. Isaac,

99

45

1983) .................................................................. 15

Allison v. Citgo Petroleunl Corp, 151 d 402 (5th Cir. 1998) ............................................... " .............. 50,

Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ................................................................................... 49

Arrnstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) ........................................................................ 6

Barefield v. Chevron, USA., Inc., No. C-86-2427 TliE, 1988

188433

Cal. Dec. 1988) ............ 55

BMWv. Gore, 517 S.559(1996) ..................................................................................... 48

v. Boeing,

203

459 (W.D.Wa. 2001), ajI'd part, vacated in part

60 Fed.Appx. 38 (9th CiT. 2003 ................................................................. ..

Beclanann v. 192

Inc., 608 (D. Minn. 2000) .............................................................. 15

IV

(11

................................................................ 41

1 ) ................................................................... 36

1

Califano v. Yamasaki, 442 U.S. 682 (1

v. & BesthofJ, , 711 F.2d 647 (5th . 1983) ........................................ ..

v. Metropolitan-North Commuter 191 F d283 (2dCir. 1999) ...................................................... 15,1 20

Carnegie v. l!ousehold International, 376 d656 (7thCir. 2004) ................................................................. 39

City ofLos Angeles v. Lyons, 461 {J.S. 95 (1983) ...................................................................................... 52

Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000) .................................................................... 15

Connecticut v. Doehr, 50 1 lJ. S. 1 (1991) ...................................... ............................................ 44, 45

Cooper industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) ................................................................................... 55

Cooper v. Federal Reserve Bank qfRichmond, 467 U.S. 867 (1984) .................................................................................... 32

Cooper v. Southern Co., 390 F d 695 (1Ith

2004) ............................................................. 18, 28

v

.................................................................. 41
.................................. 15
Daubert v. Merrell Dow Pharrnaceuticals, 509 .579 (1993) ................. .
v. United States, 517 U.S. 820 (1
Denney v. City ofAlbany, 247 F.3d 1172 (11 Cir.2001) .............................................................. 15
Desert Place v. Costa, 539 U-.S. 90 (2003) ................................. ............................................. 38, 40
Domingo v. New England Fish 445 F. Supp. 421 (W. Wa. 1977) ......................................................... 58
Domingo v. New England Fish , 727 F.2d 1429 (9th Cir. 1984) ................................. 34,35,39,49,57,58,60
EEOC v. Chicago Miniature Larnp Works, 640 F. Supp. 1291 (N.D. Ill. 1986) and 668 F. Supp. 1150 (N.D. IlL 1987) .............................................................. 36
v. 0 & G Spring & Wire Forms Spec. 38 F.3d 880 (7th 1994) ................................... .
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ................................................................................... 20

Telegraph ofSouthwest v. 457 U.S. 147 (1982) ................................................................ 7,1 18,19

v. National R.R. Passenger 191 F.3d 1148 (9th 1999) ......... .

Gratz v. Bollinger, U.S. 244 (2003) ................... .

West Life & Annuity

v. Knudson,

534 ·U.S. 204 (2002) ................................................................................... .

Griggs v. Duke Power Co. 401 U.S. 424 (1971) ................................................................................. 15

I-Jameed v. International Association ofBridge, Structural and Ornamental Workers,637 F.2d 506 (8th Cir. 1980) ........................................... 35, 59

JIilao v. Estate ofMarcos, 103 F d 767 (9th Cir. 1996) ............................................... 35, 37, 44, 45, 59

Flodgers-Durgin v. de fa Vina, ] F dl037(9th .. 1999)

I-Jovey v. Elliott, 167 U.S. 409 (1897) ................................................................................... 43

Vll

v.
1 U.S. 324 (1

v. City ofGlendale, 852F 1128 (9th . 1

...... .............. .................. ........ . .......... 14

Jenson v. Eveleth Taconite 824 F. Supp. 847 Minn. 1

Kohler v. Inter-Telegraph Technologies, 244 F.3d 1167 (9th Cir. 2001) ..................................................................... 7

Kolstad v. American Dental Association, 527lJ.S. 526 (1999) ............................................................................. 55

LaDuke v. Nelson, 762 F.2d 1318 (9th . 1985) .................................................................... 52

Landgrafv. USIFilm Products, 511 U.S. 244 (1994) ............................................................................ 40

Lewis v. Casey, 518 U.S. 343 (1996) ................................................................................... 35

Liberles v. Coun~y of Cook, 709 F.2d 1122 (7th Cir. 1983) .. .................. .. ...................................... 36

Linney v. Cellular Alaska Partnership, 151 F.3d 1234 (9th . 1998) ................................................................ 6

Vlll

v. Newland,

... ....... ...... .. ........................................ 15 1) ................................................................. 35

NfcReynolds v. Sodexho Marriott

208

428

2002) ................ ....... ....... ... .... ......... . ...... 15

reMego 213

Litigation, .2000) ................................................................ 6

Meiresonne v. Marriott Corp.,

124 F

619 (N.D. 1989) ............................................................... 15

Nfidwestern Machine7Y v. Northwest Airlines, Inc., 211 F 562 (D. Minn. 2001) ......................................................... 28

Molski v. Gleich, 318F.3d937(9th . 2003) ...................................................... 6,50,51,56

Morgan v. United Parcel Service ofAmerica, Inc., 169 F.R.D. 349 (B.D. Mo. 1996) .............................................................. 15

Nelson v. Adams USA, 529 U.S. 460 (2000) .................................................................................. 43

Orlowski v. Dominick's Finer Foods, Inc.,

172

370 (N.D. Ill. 1997) ................................................................... 15

Paige v. State of Caltfornia, 102 F.3d 1035 (9th Cir. 1996) ................................................................... 43

Paige v. State of California, 291 F.3d 1141 (9th Cir. 2002) ................................................................... 26

re (l

3

35,

v. Western

Co.,

1262 (lOth "1988) ................................................................,. 35

v. du de

,

5321J. 843 (2001) ................................................................................... 43

Waterhouse v. Hopkins,

490 . 228 (1989) .........................................................................

40

Ratanasen v. State of California, 11 F d 1467 (9th '. 1993) ....................... .. ................................. 37,45

Reid v, Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (N.D. Ga. 2001) .................................................................. 15

Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486 (M.D. Fla. 1991) ............................................................ 29

Salinas v. Roadway Express, 735 F.2d 1574 (5th Cir. 1984) ................................................................... 54

Segar v. Smith, 738 F.2d 1249

. 1984) ............................. .

35,36,60

Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072 (9th . 1986) ............................................................... 1 27

Shipes v. Trinity Industrial, 987 F.2d 311 (5th . 1993) .................................................... 15,35,3 38

x

re

.. .. ..... 17,

Farm Mutual Automobile 8 U. 408 (2003) .....

v. .... .... .. ............... 48

Boeing Co., d 8 (9th '. 2003) .................. .. .................................... 1 1 51

Stender v. Lucky Stores, 803 F. Supp. (N.D.

1992) .............................................. .. ..... 1

Stewart v. General Motors COlp., 542 F.2d 445 (7th . 1

,Stewart v. Rubin, 948 Supp. 1077 (D.D.C. 1996), r4fd, 124 F.3d 1309 (D.C. Cir. 1997) (table)

.................... 15

Story Parchment Co. v. Paterson Parchment Paper 282 U.S. 555 (1931) ............................................................................... 39

Thomas & Thomas Rodlnakers, Inc. v. Newport Adhesives and Composites, Inc.,

209

159 (C.D. CaL 2002) ........................................................... 28

Ticor Title Insurance v. Brown, 511 "U".S. 117 (1994) ................................................................................... 56
u.s. v. Fior D'Italia, Inc.,
6 S. 238 (2002) .................................................................................... 37

Xl

re

1

1) ........... .

re 1) ........................................................... 21,

Wagner v. Nutrasweet

170

448

1 ............ .. .............................................. 15

v. Fort Worth Bank and 487 S. 977 (1988) ................................... .................. .................... 14, 19

West v. Prudential Sec., 282 F.3d 935 (7th Cir. 2002) ................................................................. 28

Western Electric Co.) Inc. v. Stern, 544 F.2d 11 (3d . 1976) .................................................................... 43

Williarns v. Owens-Illinois, , 665 F.2d 918 (9th Cir. 1982) ............................................................... 54, 55

Zinser v. Accufix Research Institute, Inc, 253 F.3d 1180 (9th Cir. 2001) ................................................................... 55

STATUTES

28 lJ. § 2111 .................................................................................................... 30

42 {J.S § 2000e(a) ............................................................................................. 42

42 U.S. § 2000e-2 ................................................................................... 1 40, 41

42

§ 2000e-5 ....................................................................................... 40, 42

Xll

§ on

.. 3 3 38,

Xlll

's

'8

substantial evidentiary

concluded that

possessed a

promotion system that the disputed

practices were amenable to

under

The court's opinion, drawing upon a well-established body of Title

jurisprudence for pattern or practice actions, bears little resemblance to Wal-

M.art's caricature of the court's reasoning. Indeed, Wal-Mart all but disregards the

lower court's order and instead rests its appeal on two demonstrably false, but

often repeated, factual assertions. Wal-Mart claims that its store managers make

personnel decisions in a thoroughly independent and decentralized manner, an

argument squarely at odds with both the evidence and its much-admired, highly

centralized business model. Second, it trumpets that its "unrebutted" statistics

prove that there was no discrimination in most stores. Those statistics were

entirely discredited and their underlying factual predicate stricken from the record.

fact, Wal-Mart's female employees are paid less than male employees in

1

111

one

41

s

even scores.

"

can never

a

consistently providing

may adversely affect a protected group;

courts not

class

back payor

punitive damages because the employer has an absolute right to litigate

class member remedial claims individual by individual, even where the

defendant's own conduct would render adjudication such claims a

"quagmire of hypothetical judgments;" and

'" Rule 23(b)(2) certification is never proper if plaintiffs seek either back pay

or punitive damages.

court has accepted even one of these extreme positions and this Court should

decline the invitation to the first.

The historic size the class is not the result of any error by the district

court but the predictable result of a class-wide pattern and practice of

discrimination perpetrated by "the largest private employer in the world." App. 3.

2

s

no more

employees

no

this

s

proposal

case instead litigated in 3400

class actions is nothing more than a ploy to mask its overall

of

while UUJl~v'-'''''CJ

the federal

O:F ISSUES

1. Did the district court clearly abuse its discretion when it concluded that

Wal-Mart's uniform policies and practices, including the policy of providing

broad discretion to managers in making pay and promotion decisions, presented

questions oflaw or fact common to the class in satisfaction of Fed. Civ.

(a)(2)?

Does an employer always have the right to defend each class member's

claim to monetary relief through individual hearings?

3. . the district court clearly abuse its discretion when it concluded that

injunctive relief predominated over monetary reliefu.nder Rule 23(b)(2)?

4. the district court err when it concluded that, for promotion claims,

3

an

even

In.

111

between men women.

and far-Teaching Rule 23(a) analysis to one disputed practice the granting

managers make

While it

that the

cannot be challenged as a common, company-wide poli

the Supreme Court has held otherwise.

Wal-Mart not submit a single company document nor any

admissible testimony to substantiate its claim that Wal-Mart is fully

"decentralized." Instead, Wal-Mart rests its argument before this Court entirely on

the testimony its expert economist, falsely claiming that her statistical

conclusions were "unrebutted." Her conclusions

m thoroughly rebutted

and the underlying basis for ber disaggregated statistical analysis the

manager survey - was stricken from the record. That district court order, not

appealed

prohibits Wal-Mart

relying on the surveyor any expert

conclusions derived from it

4

on

pay

satisfied

23(a).

There is no authority for Wal-Mart's claim an absolute statutory and

due

to litigate each class

s entitlement relief in individual

hearings. This extraordinary proposition would make actions brought on behalf of

even moderately-sized classes all but impossible. The district court acted well

within its discretion approve the use of statistical methods that draw upon Wal-

Mart's extensive workforce data to detem1ine class member remedies. The district

court's order carefully ensured that only actual victims of discrimination will be

entitled to receive either back payor punitive damages and that their monetary

relief will proportional to the harm they suffered.

The nature Wal-Mart's practices broad subjectivity in pay and

promotion decisions and a failure to maintain records to document decision-

making .~ necessitates this statistical approach computing

Were

district court to conduct individual by individual remedial hearings, these practices

5

it in a

111

v.

318 F

right

class members,

found

was

the primary

this litigation.

s

pay for nrrnYH

class

members could produce objective evidence an application was legal error.

Because the absence records is attributable to Wal-Mart's wrongdoing, class

members should not be penalized.

STANDARD REVIEW

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 .2001) (quoting In re Mega Corp.

,213 d 454, 461 (9th

Cif. 2000)). The district court's factual findings regarding the elements of Rule

23, none of which Wal-Mart challenged, must be accepted as true for this appeal.

See Linney v. Cellular Alaska P'ship, 151 F d 1234, 1238 (9th Cir. 1998).

6

novo reVlew more
an d

more

man
IS
reView

Satisfy
The district court closely followed the Supreme Court's admonition to
conduct a "rigorous analysis" of the factual record and made factual findings
central to the decision below and to this appeal. Gen. Tel. Co. ofSouthwest v.
Falcon, 457 U,S, 147, 161 (1982). The district court properly exercised its
discretion in determining that Rule 23(a) had been satisfied.]
1 While Wal-Mart's statement of issues purports to dispute the district court's finding that typicality was satisfIed, it articulates no basis for this challenge. App, 2. Arguments not raised by a party are waived; mere inclusion of an issue in the "statement of the issues" win not preserve it. Kohler v. Inter-Tel Technologies, 244 F.3d 1167, 1179 n.S (9th eiL 2001). Wal-Mart offers a misleading summary of plaintiffs' individual claims, but this does not undennme the district court's conclusion that their claims are plainly typical of the class claims since all allege discrimination through the same common practices challenged by the class as a whole. ER 375-81, 1183-84; SER 427-37,548-5 657-62,682-97,707-715.
7

on

s

comrnon policy the

was

promotion '-LVVLU"'-" ,,2 App. 10.

the district

s detailed

entirely

IS

unsupported by any

there no company document nor

testimony from company officlals. Wal-Mart cites only to portions of its expert

witness' declaration that were stricken from the rPf'nrn. App. 18, 20 citing

570-576; ER 1235 8, 1241.

The district court relied on evidence of:

,. uniform personnel and management structure across stores, ER 1147-

48,1159;

the Home Office's extensive oversight of operations, 1149,

1158;

company-wide policies governing pay and promotion decisions,

2 WaI-Mart provides a similarly truncated and misleading description of the commonality evidence plaintiffs submitted ("plaintiffs relied on three categories of evidence: statistics, sociology, and anecdotes"), App. but the evidence in the record is much more extensive. ER 1147-81.
8

11

a

11

m

1173;

11

"

1180-8 L

substantial rp('nrn reveals common features Wal-Mart's and

their

on women

of

informed the district court's (a)(2) determination. Wal-Mart, contrast,

evaluates each type of evidence plaintiffs submitted in isolation, then

concludes that no . of evidence "standing alone" supports a finding

commonality. App. The Court should consider the record as a whole, as did

the district court, in determining whether the evidence supports the commonality

finding. Plaintiffs do not rely solely on supervisors being granted excessive

SUbjectivity in decision-making. Plaintiffs here allege that a highly-centralized

company issues common policies within which supervisors have to operate.

Those common policies offer the supervisors extensive discretion in some areas,

subject to a common system of oversight. The decision-makers operating under

these policies are imbued with a common culture which influences the manner in

9

women on women.

a

job

ons management

"

s

of moving

different stores r'Hr''''T"'VYl this high

level

of mobility

ma

with a hIgh degree of store-to-store unifonllity." ER 1158.

Wal-Mart's extensive scrutiny of virtually every facet of store operations

also contributes strongly the commonality finding, "Each individual

IS

subject to oversight from the company's Home Office," which includes "a very

advanced information technology system which allows managers in the Home

Office to monitor operations in each ofit8 retail stores on a close and constant

basis." ER 1158-59 (emphasis added). Wal-Mart has a particularly high

concentration of its managers located at the Home Office. ER 115

029.

Uniform

-- While there is evidence that broad subjectivity

consistently p1 a in pay decisions, the evidence also shows that Wal-Mart's

policies significantly constrain store manager discretion. "Managerial discretion

10

a

a

range, any pay increase of more 6%

IS

automatically reported to

management subject to

11

WaI-Mart's computer system electronically monitors and enforces its pay

policies. The computer program will not allow entry any proposed pay rate that

exceeds corporate pay guidelines without an explicit store manager override. Any

override triggers an "exception report" that is immediately sent to the District

Manager for review and approvaL SER 390-91; ER 1149. Forty percent of

starting pay rates exceeded the guideline, and thus triggered this oversight. SER

204-05.

The compensation system for salaried in-store managers, which also

provides broad discretion in adjusting pay, is set by common, company-wide

policy. ER 1150. The

Office sets base pay ranges for each'

salaried

position, and subjective departures from such pay levels are made "primarily by

11

In
" 11 L

pnmary

.sions are exclusively

11 3.

The hourly

(AUU."-'_". position is the only

at issue for which

have authority to

There has been no application process the vast majority of openings for

Support Manager and higher level positions, including Management Trainee,

Assistant Manager and Co-Manager. ER 11

. The only position for which

posting regularly occurs is Store Manager. Since candidates must obtain

pennission from their district managers to apply for such positions, the posting

does not "ameliorate the subjective nature of the promotion process." 11

53. The promotion process is fundamentally a "tap on the shoulder" systelll. As a

result Wal-Mart's decision not post openings, "managers did not have to

consider a11 interested and qualified candidates, thus further intensifying the

subjective nature of promotion process." 1151 3.

Corporate

The managers who run the stores and

12

s

are

111 a

personnel

the

discretion." 1157,1159.

Vial-Mart

employees, beginning

m

on Wal-

Mart

"[tJhe .

Wal-Mart

IS an

for

employees regardless seniority." ER 1157-58. Wal-Mart's practice of

"promoting from within" means that those who reach management are well-

grounded in company culture. ER 1158. Frequent transfer of managers across

districts and regions also "ensures that a unifoD11 Wal-Mart Way culture operates

consistently throughout all stores." Id.

Ow""Ul'.d' Stereotyping There is evidence, credited by the district court,

that Wa1-Mart's pay and promotion systems are vulnerable to gender stereotyping.

1161. Evidence of gender stereotyping in the workplace was disclosed

declarations from 114 class members, many of whom recounted statements by

Wal-Mart managers that characterized female employees in stereotyped ways. See

Section Nor was use of gender stereotypes limited to store-level managers.

13

The Supreme Court has held that subjective decision-making can be

challenged where it adversely affects a protected group. Watson v. Fort Worth

Bank and

487 977,989 (1988); Falcon, 457 U.S. at 159 n. 15. Courts

have long recognized that subjective decision-making is a "ready mechanism for

discrimination" and appropriate for courts to carefully scrutinize. Sengupta v.

Morrison-Knudsen Co., 804 F.2d 1072, 1075 (9th '. 1986). See Watson, 487

U.S. at 990,1010 n.9; Jauregui v. City of Glendale, 852 F.2d 1128, 1135-36 (9th

1988).

Whether a challenge to subj

decision-making should be certified as a

class action is a fact-specific inquiry. Indeed, the cases upon which Wal-Mart

relies acknowledge that certification of classes challenging excessive sUbjectivity

would have been appropriate under facts similar to those present here. See, e.g.,

14

F use

that

that

se un]

uncontroversial

proposition that sUbjective

se unlawfuL""

1 18.

Plaintiffs challenge an employment

as the use of

employment

on a class-wide basis even though tests are

se

unlawful. 42 S § 2000e-2(h); Griggs v. Duke Power ,401 424,434-

3 See, e.g., Caridad v. Metro-North Commuter , 191 F.3d 283 (2d Cir.

1999); Shipes v. Trinity Indus., 987 2d 311,316 (5th Cir. 1993); Mathers v.

Northshore Mining Co., 217 F.R.D. 474, 485 (D. Minn. 2003); McReynolds v.

SodexhoMarriott Services, Inc., 208 F.R.D. 428, 441 (D.D.C. 2002); Beckmann

v. CBS, Inc., 192 F.R.D. 608 (D. Minn. 2000); Daniels v. Federal Reserve Bank of

Chicago, 194

609,615 (N.D. Ill. 2000); Orlowski v. Dominick's Finer

Foods, Inc., 172

370 (N.D. Ill. 1997); Stewart v. Rubin, 948 F. Supp. 1077,

1093 (D.D.C. 1996), aff'd, 124 F.3d 1309 (D.C. . 1997) (table); Wagner v.

Nutrasweet Co., 170

448,451 (N.D. IlL 1997); Morgan v. United Parcel

Service ofAmerica, Inc., 169

349,356

Mo. 1996); Stender v. Lucky

Stores, 803 Supp.25 331 (N.D. CaL 1992); Meiresonne v. Marriott Corp.,

124 F 619,622-23 (N.D. Ill. 1989); Allen v.lwac, 99

45,54 (N.D. Ill.

1983).

4 Wal-Mart largely relies on individual disparate treatment cases in which plaintiffs argued that the use of subjective criteria was evidence of discriminatory intent. See, e.g., Coleman v. Quaker Oats Co., 232 F.3d 1271,1285 (9th Cir. 2000); Denney v. City ofAlbany, 247 F.3d 1172, 1186 (11 th Cir. 2001).

15

35(1 1).

on a

no comn10n

the case

has already rej

F.3d 8, (9th

presence of multiple

located

in multiple facilities

Ru]e (a)

where

subjective decision-making is practiced consistently pursuant to a common policy.

Like this case, the Staton evidence revealed "a complex of company-wide

discriminatory practices" established centrally, as well as local decision-making

for some employment practices at issue. ld. at 953. 'rhis Court rejected the

contention that making decisions locally in multiple facilities makes a case

unsuitable for class treatment. "The unsurprising fact that some employment

decisions are made locally does not allow a company to evade responsibility for its

policies." ld. at see also Caridad, 191 F.3d at 1-93 (a class action

properly challenge the practice of delegating discretion). Were Wal-Mart's

"decentralization" argument concct, large companies would never be subject to

class actions challenging discriminatory payor promotion practices since

16

has

ma

manner

Wal-Mart

these same arguments below and the district

that the evidence this case supports a

commonali ty:

clarify, the evidence indicates that in-store pay and promotion decisions are largely subjective and made within a substantial range of discretion by store or district level managers, and that this is a common feature which provides a wide enough conduit for gender bias to potentially seep into the system. These subjective decisions are not, however, made totally in isolation. Rather, the company maintains centralized corporate policies that provide some constraint on the degree of managerial discretion over in-store personnel decisions. The evidence suggests that the company relies also on its strongly imbued culture to guide managers in the exercise of their discretion .... It is clear, however, that given the evidence regarding strong uniform culture and policies, the degree and impact of this practice is a significant question olfact common to the class as a whole.

1159-60 (citations omitted and emphasis added).

In contrast, cases upon which Wal-Mart relies were based on decidedly

different facts.s None of them stands for the proposition that, as a matter oflaw,

.5 In Stastny v. Southern Bell Telephone and Telegraph Co., 628 F.2d 267, 279 & n.19 (4th eiL 1980), the court noted basic evidence that was missing from
17

a common

proof

making

are challenged.

adducing, before the

'significant

used discretionary decision-making further a corporate

of sex

" (emphasis in original)). Wal-Mart relies on

language

from Falcon, which provides relevant part:

Significant proof that an employer operated under a general policy discrimination conceivably couldjustifY a class ofboth applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective

the record: "There was no showing by direct evidence that a statewide practice or policy, either objectively or subjectively administered, existed," yet named plaintiffs, who all worked at a single facility, relied solely on statewide statistical evidence. Cooper v. Southern Co., 390 F.3d 695 (lIth Cil'. 2004) involved employees from four different companies, three subsidiaries and one parent company, each with a different management structure and its own separate policies, and the employees included ranged from entry level laborers to skilled professionals seeking senior management positions. Id. at 703-05,715-1 The Eleventh Circuit noted that class certification would still be acceptable if plaintiffs could make a "showing that the discrimination sustained was either part of an overarching pattelTI and practice of intentional discrimination on the part of the defendants or the rcsult of the discriminatory disparate impact of a facially neutral employment policy," but concluded that, due to inadequate statistical evidence, plaintiffs had failed to do so. 1d. at 716.
18

n.15 (emphasis u.u",,",",,",

111

a

class cases.

F

Falcon's

1 combined employees and applicants). The

no

the board"

case. 1141. includes only

employees

just

promotion.

Even if plaintiffs are subj to Wal-Mart's alleged "significant proof'

standard, they plainly satisfy it. Plaintiffs produced significant evidence of

centralized company policies and culture, which provide a nexus between the

subjective decision-making and the substantial statistical evidence demonstrating a

pattern of discriminatory pay and promotions for female employees. Plaintiffs'

expert and anecdotal evidence further substantiates that delegation of subjective

decision-making to local managers presents the danger that they will employ

'"subconscious stereotypes and prejudices." Watson, 487 U.S. 990.

a Commonality

In a detailed, I8-page analysis, the district court closely scrutinized the

19

ralses

challenges

plaintitIs'

it

aJ could conclude that the

practices

affected members of the class. This

was well

discretion.

Wal-Mart

the distri

for

to

a

plaintiffs' statistics were "more probative" thanWal-Mart's own. App.

However, Wal-Mart fundamentally misconstrues the function of the court at the

class certification stage. Its role IS to ensure there are common issues, not

resolve them. Eisen v. Carlisle & Jacquelin, 417 U.S. 156,177 (1974). Faced

with statistical evidence and competing expert claims, the court is likewise not

required, nor permitted, to resolve the competing "statistical dueling" among

experts. Caridad, 191

at 292. The issue at class certification is "whether

plaintiffs' expert eVIdence IS sufficient demonstrate common questions of fact

wananting certification of the proposed class, not whether the evidence ultimately

6 Wal-Mart limits its attacks on the statistical analysis to evidence showing gender pay disparities for hourZy employees. It does not challenge the statistical evidence of disparities either in pay for management employees or in promotions.
20

"

17

35

1).

even

s

numerous

common to the

the level data

appropriate,

variables that should

included in a statistical model.

L Issues

the district court found, only "uncontested" statistics in this case

were plaintiffs' descriptive statistics. 1164. This data showed that female

enlployees were paid less than men in virtually every job position in every region

ofWal-Mart, and that the salary gap between women and men hired into the same

jobs at the same time increased over time. ld. These observed differences existed

even though female employees at Wal-Mart generally have more seniority and

better performance ratings than do male employees. 173,175-80,182.

Plaintiffs' statistical expert, Dr. Richard Drogin, also prepared extensive

multiple regression analyses of hourly pay, controlling for factors such as

seniority, job position, status (part time/full time), perfon11ance rating and store

21

7

1

women were

this

was

across of

's

41

11

Wal-Mart

Drogin

have performed a store-by-store

analysis pay. his rebuttal declaration, which

omitted from

. explained his analytic

was more

store-by-store analysis would fail capture the effect district, regional and

company-wide control over the uniform compensation policies and process and

the unifoD11ity resulting from the frequent movement of store managers.

204-

05. V/al-Mart's strong corporate culture further supported his regional and

company-wide analyses. ER 11

Thus, Dr. Drogin's comprehensive analysis included use of a store location

variable, separate analyses for the 41 different regions each of which showed

statistically significant disparities and identification of factors justifying

analysis at the regional and company-wide level. contrast, the cases cited by

7 Contrary to Wal-Mart's suggestion, Drogin's model took into account potential local variations that theoretically could arise based on local markets or store type. SER 211.

are were
8

repeatedly asserts there was no discrimination

of the

it

to have

on a

basis," and

that this

was

" App. 7, . This claim is on all counts:

Wal-Mart's expert never conducted a store-by-store analysis, the factual basis for

the analysis it did conduct was stricken by the district court, and its conclusion

was rebutted.

Instead a store-by-store analysis, Wal-Mart's expert, Dr. Haworth,

8 See, e.g., Stastny, 628 F.2d at 279 (plaintiffs offered only statewide totals

and instances of discrimination at a single facility, and did not seriously contest

facility level autonomy); Garcia v. Veneman, 211 F.R.D. 15,22 (D.D.C. 2002)

(plaintiffs offered generalized statistics, which were not broken down by state or

county); Abram v. UPS, Inc., 200 F.R.D. 424, 431 (B.D.Wis. 2001) ("even

plaintiffs expert admits that in a majority of the districts he could find no

statistically significant difference in pay between African-American and white

supervisors"); Beck v. Boeing, 203

459,463-64 (W.D.Wa. 2001), ajl'd in

part, vacated in part, 60 Fed.Appx. 38 (9th eir. 2003) (class certified, but limited

to region encompassing approximately 29,000 women spread across multiple

facilities where that region showed statistically significant disparities, but

excluding other regions, with different policies, which showed less or no statistical

significance ).

as

small

of women and

men

same store.

203,

206,215. See

v. & Besthoff, 711 647,654·,656 (5th

1

di saggre gati on

it was difficult

demonstrate statistical significance"). This extreme disaggregation was wholly at

odds with Wal-Mart's compensation policy and management practices, which do

not distinguish among, or even identify, these sub-units or separate departments as

a factor in setting pay. SER 203-206.

Moreover, the primary justification for Wal-Mart's model was defense

counsel's "survey" of store managers. ER 489,491,570-76,613,1167,1

8,

1241. Wal-Mart's brief fails to inform this Court that the survey, and the portions

of Haworth's declaration which relied upon were stricken from the

1. That order, which has not been appealed, precludes Wal-Mart from

relying on the survey either to attack plaintiffs' expert or "as support for her

decision to conduct a disaggregated analysis." 1238. In violation of the lower

s

on

9

overall

showed the

statistically ·MJ.U.L.LVU' 10

342.

s in pay by are i"-'vJLJU'-'J.

Wal-Mart asserts that the dispute between the parties over aggregation level
"was not primarily factual (or statistical) but legal: Should the data be examined
on an aggregated basis or not." App. 25. Even if Wal-Mart were correct, it has
simply identified a common legal issue which should be resolved as part of a
9 The analyses ofWal-Mart's expert were also riddled with errors and flaws and utilized many variables that were either likely tainted by discrimination, or simply never explained or justified. SER 359-62; Coward v. ADT Sec. Sys., Inc., 140 F.3d 271,274 (D.C. Cif. 1998); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 332 (5th CiL 1977).
10 See Segar v. Slnith, 738 F.2d 1249, 1286 (D.C. CiL 1984) (rejecting defendant's practice of repeatedly disaggregating data until the resulting groups were too small to generate statistical significance, and ruling that where such separate analyses were done, the overall significance of the disaggregated analyses should be calculated). The district court's later order striking a "minor portion" of Dr. Drogin's analysis does not unden11ine his conclusion, since he still found an overall disparity after aggregating Dr. Haworth's analyses. 1 3; SER 342.
25

1 d 1141, 11

erroneous -

a

it

1S more

subdivided data.

is no legaJ requirement to use

statistics. ThIS Court

use of disaggregated statistics

it results

SIzes

any findings

stically

"

1

F d at ] 148. Aggregated data may offer more complete and reliable picture"

of the effects of defendant's practices. Eldredge v. Carpenters 46 Northern

California Counties, 833

1334, 1339 n. 7 (9th elL 1987). It was well within

the district court's discretion, therefore, to credit plaintiffs' aggregated data.

Wal-Mart asserts that "it is an error onaw not to use the Chow test, or some

other statistical test, where there is evidence that aggregation of statistics masks

relevant dissimilarities." App. 26. There has never been a reported case applying

the "Chow as a requirement for class certification, or even holding its use is

mandatory the merits phase. Not surprisingly, Wal-Mart cites no case law in

support of its position. More to the point, Wal··Mart never showed that "faillng"

the Chow test in fact undermines commonality. The district court properly found

11

sociologist

11 Wal-Mart attacks the

Wal-Mart's

personnel

and

gender bias. 12 It claims the testimony fails

the standards of Daubert,

U .579.

The district court rejected Wal-Mart's motion to strike Bielby's

testimony on Daubert grounds, because the applIcation of a full Daubert inquiry at

class certification would necessitate an improper inquiry into the merits.

The district court followed numerous other courts in applying a lower standard,

concluding that the testimony was "sufficiently probative to assist the Court in

II Wal-Mart does not challenge Bielby's opinions that Wal-Mart's "[c]entralized coordination, reinforced by a strong organizational culture... sustains uniformity in personnel policy and practice" or that "there are significant deficiencies" in the company's EEO policies and practices. 289-90.
12 Bielby's conclusion that Wal-Mart's practices increase the risk of gender stereotyping tends to show why, in the specific circumstances of this case, there is a comnlon question as to whether subjectivity is "a ready mechanism for discrimination." See Sengupta, 804 F.2d at 1075.
27

I·ssue 1.11 case." 1 1

2001);

v.

A

,211 F

5 5

cites no case authority for proposition a

apply the

the class certification stage. 13

notbe

s111ce Bielby's

easily

the full Daubert test.

employed a well-accepted social

science methodology for his opinions, 1 and the testimony has a "reliable

basis in the knowledge and experience of [the relevant] discipline." Daubert, 509

U.S. at 592. The Supreme Court has endorsed reliance on expert testimony

regarding gender stereotyping in discrimination cases. Price Waterhouse v.

Hopkins,490 S. 228, 255-56 (1989). Federal courts routinely admit such

testimony. See, e.g.,

v. Eveleth Taconite ,824 Supp. 847,881 (D.

13 Wal-Mart cites three cases, none of which holds that the Daubert inquiry is required at class certification. Wiest v. Prudential Sec., Inc, 282 F.3d 935, 938 (7th Cif. 2002); Cooper v. Southern Co., 390 F.3d 695,712 (lIth Cir. 2004); Visa ChecklMasterMoney Antitrust Litig., 280 F.3d at 135. These cases stand for the proposition that the district court must rigorously analyze the evidence submitted in support of class certification, a proposition that plaintiffs embrace.
28

F.

1

1

1

s

on

Wal-Mart faults

s testimony for failing to

employment

that were the

stereotyped thinking.

30.

There is,

, no

be quantifiable.

routinely admit the expert testimony of psychologists and social scientists.

United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993). Indeed, in Price

Waterhouse, the Supreme Court approved the admission of expert testimony about

gender stereotypes even though the expert admitted that she "could not say with

certainty whether any particular comment was the result of stereotyping." 490

U.S. at 236. Nor does the district court's recognition that "Dr Bielby's opinions

have a built-in degree of conjecture" undermine their admissibility. ER 1162.

This Court has explained that "[e]xperts ordinarily deal in probabilities, in

'coulds' and 'mights,'" and "particularly in matters of the mind." Rahm, 993 F.2d

141

Even if a full Daubert inquiry had been legally required, the district court's

29

so was § 211 L

error smce

(a)

was

class members showing comInon country." 115 14

across the

the

court noted,

111 a

practice case "brings the cold numbers convincingly to light." Int 'l.

of

Teamsters v. United States, 431 324, 339 (1977). It also can support a

finding of common policies and practices. The class member declarations

illustrate how Wal-Mart has applied its pay and promotion practices to the

detriment of its female employees, from unequal pay for the same work to ever-

shifting subjective criteria for promotion. SER 399-411,505-13,531,539-41,

555-56,573-78, 609-20, 621 1. They provide examples of stereotyped remarks

attributed to Wal-Mart managers, which ref1ect the kind gender stereotypes that

Bielby predicts would infect Wal-Mart personnel decision-making. SER 395,

14 The suggestion that the district court relied on only three declarations in support of its commonality determination is demonstrably false. 1156.
30

415, 1

51 3,

1, 5 1, 61

sworn are

1,41

673-74.

argument that plaintiffs' declarations

only one

of discrimination every 13,000 class

is no requirement

witnesses

comprise a statistically

significant sample or prove individual claims of discrimination, Finally, Wal·,Mart

argues that none of the declarations "attempts to establish a common, company-

wide policy of discrimination," implying inaccurately that each, standing alone,

must prove plaintiffs' entire case. App.32. The declarations are simply one more

pIece the enormous record that, considered cumulatively, fully satisfies Rule

23(a).

The This Case

Properly

that

Statistical Methods to

Is Mo:re App:ropriate than Individualized Hea:rings In

A:re Always

1.

Not

Individualized Hea:rings

A well-developed body of case law governs Title VII pattern or practice

31

cases

s

1

S.

(1

"[A]t

ofa

trial

on

decisions, on a patten1 discriminatory

"

Cooper, 467 at (emphasis added) (quoting

360

n

liability is established, all class members are entitled a presumption

that they are eligible monetary relief. Teamsters, 431 . at 361 Relief

for

members is normally determined in a separate remedial stage.

In stTucturing remedial or "Stage proceedings, remedial purposes of

Title VII provide the guiding principles. Teamsters, 431 U.S. at 364-365. Title

was enacted to "make persons whole for injuries suffered on account of

unlawful employment discrimination" and the trial court has the duty to fashion

"the most complete relief possible." Albemarle Paper Co. v. Moody, 422 U.S.

405,421 (1975). The district court has discretion to be flexible and to '''fashion

such relief as the particular circumstances of a case may require to

restitution. '" Teamsters, 431 U.S. at 364 (quoting Franks v. Bowman

Transportation COlnpany, 424 U.S. 747, 764 (1976)); cf Carnegie v. 1lousehold

3

1

ma

on head,

an absolute on

claims

class

individual

all Teamsters

held was

district

must usually conduct additional proceedings after

the'

phase of the

the

"

Teamsters, 431 U.S. at 361 (emphasis added). Wal-Mart provides no basis for

interpretation that the phrase "additional proceedings" equates to "individual

hearings" or that "usually" means "always." App.36-37. Thus, further

proceedings are not required in all cases, and even when there are "additional

proceedings," those proceedings need not be individual mini-trials as Wal-Mart

claims. Teamsters "does not mandate individualized hearings in every case;" it

requires only "some demonstration that the individual class members receiving

compensation were likely victims of illegal discrimination." McKenzie v. Sawyer,

684 F.2d 76 (D.C. eif. 1982).15

15 The relief requested in Teamsters, instatement with retroactive seniority, raised particularly sensitive issues, implicating the rights of non-class employees. 431 U.S. at 347-48. Where only back pay is sought, however, no third-party rights

v.

1

1

avenues."

Domingo, 727 at 1444. The district

this guidance in

identifying appropriate avenue for this case.

held that'

are

nor

warranted, where the employer's conduct would reduce efforts to reconstruct

individually what would have happened in the absence of discrimination to a

"quagmire of hypothetical judgments." Pettway v. American Cast Iron Pipe

494 F.2d 211, 260 (5th 1974).16 In such cases, particularly where the

employer's system has been infected with subjective decision-making and the

are implicated.
J6 Wal-Mart cites a law review article for the proposition that Pettway authorized only a formula determination of the total back pay fund, but required individual hearings to detennine class member's entitlement App.40. The decision held otherwise. Pettway, 494 F.2d at 263 n. 154. The Eleventh Circuit vacated the district court's order requiring individual hearings, rejected the employer's due process argument and remanded with specific direction that the lower court consider a class-wide award, making no reference to even limited individual hearings to determine eligibility. Pettway v. American Cast Iron Pipe Co. (Pettway V), 681 F.2d 1259, 1266 (11 th Cir. 1982).
34

311,

316

v.

1

v. 'I ']1 ofBridge,

and

506, 520 (8th 1980); Domingo v. New England

727 F.2d

1

(9th Cir. 1

v.

843

1 1274

(lOth . 1988); Pettway v. American

(Pettway V), 681 F.2d

9,1266 (lIth . 1982); Segar v. Smith, 738 F.2d 1249,1289-91 (D.C. Cir.

1984).

Class actions cases outside the Title area have likewise upheld class

monetary remedies. See, e.g., Hilao v. Estate ofMarcos, 1 F.3d 767, 782-87

(9th Cir. 1996); see generally Conte & Newberg, Newberg on Class Actions

(4th Ed. 2002), Chapter 10.17

17 Wal-Mart cites Lewis v. Casey, 518 U.S. 343, 349 (1996) and Mayweathers v. Newland, 258 F.3d 930, 934 (9th .2001) for the proposition that "even in class cases, individual relief. .. must be proven individually." App. 44. These cases, not brought under Title VII, held only that there must be a showing of "widespread" injury to justify broad jnjunctive relief in prisoner access cases.
35

even

are

111

numerous cases

v.

38

F

v.

F.

Supp. 1

Ill. 1986)

1151,11 n.7

1

11 1136 (7th 1

Shipes,

at 31

involved

promotion and

claims, where questions of whether an employee or applicant

had been an actual or detened applicant the position were arguably at issue.

However, in diSCrIminatory pay cases, there is no issue application or interest

"[C]ourts can safely assume that alI employees unifom11y desire equal pay for

equal work." ER 12] 1. These circumstances present an even stronger case for

using statistical models rather than individual hearings. See Shipes, 987 F

31 19; Liberles, 709 F.2d at 113 Brennan v. City Stores, Inc., 479 F.2d 235,

242 (5th Cir. 1973); McKenzie, 684 F.2d 76.

Statistical Approaches Individual

Data-driven statistical methods can often be far more accurate than other

36

on

a

case

an

subject to the of

also

statistical evidence

of

734

v.

, 1

d 818, 823 (7th . 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 In re Simon

, 211

86,

149-55 (E.D.N.Y. 2002).

This Circuit and several others have accepted the validity of statistical

methods for determining monetary

and rejected arguments

individualized determinations are always required. Ratanasen v. State of

California, 11 F.3d 1467,1470-71 (9th eif. 1993) (collecting cases);

103

F d at 783-85; Simon, 211

at 150-51 (collecting cases); US. v.

D7talia, Inc. 536 U.S. 238, 248 (2002) ("Nor has Fior DiItalia convinced us that

individualized employee assessments will inevitably lead to a more 'reasonable'

37

an

on

on

and

direct evi

"

9 U. 90, 100 (2003).

the foundation

s

that statistical evidence is inherently less valuable or probative

other 'Ar.on('

has been rejected by

While remedies based upon statistical analyses are

called "formulaic,"

that label does not mean that every class member must receive the same amount or

that non-victims are awarded windfalls. Statistical formulas can incorporate

detailed infonnation about each individual from employee databases, as was

proposed below, to calculate whether, and in what amount, a specific individual

has been underpaid. l8 ER 1211 15. Moreover, the allocation of relief need not be

perfect; when computing a back pay award, "unrealistic exactitude is not required

and all doubts should resolved against the discriminating employer." Shipes,

l~ Indeed, contrary to Wal-Mart's suggestion that all women regardless injury would receive money, the court found that Wal-Mart maintains substantial computer-readable personnel and payroll data which would permit identification of "not only the potential victims but also the actual victims" of discrimination with a "sophisticated use of data." 1212.
38

31

F

v.

IS

to injured

amend his ") .

Wal-Mart

that formula approaches

are appropriate in

cases

Wal-Mart it

backwards. Individualized analyses are more ·~nl'\'r.-,.nl·l

the is small,"

but "when the class size or the ambiguity of promotion or hiring practices... calls

forth the quagmire of hypothetical judgment, a class-wide approach" is prefened.

Pettway, 494 F.2d at 261; cf Carnegie, 376 3d at 660 ("The more claimants

there are, the more likely a class action is to yield substantial economies in

litigation.

30 The

Rights Act of 1991

Wal-Mart's assertion that the "mixed motive" provision of the

ghts

Act of 1991 mandates individual Stage hearings for each class member is also

39

§ avenues

19

now

20

method

a

violation. 42

. § 2000e~2(m).

permits a complainant to prove that impermissible discrimination was a

"motivating" factor in challenged employment

a

chooses

to prove her case in this manner, and the employer shows that it would have made

the same decision the absence of the impemlissible factor, the plaintiff prevails

but her remedies are limited. The Supreme Court has held that the mixed motive

theory is an alten1ative method of proof, not an affirmative defense. Costa, 539

U.S. at 94. ("The first [provision] establishes an alternative for proving that an

19 Wal-Mart's assertion that the "mixed motive" provision codified Teamsters is flatly untrue. App. 37. The legislative history makes clear that the mixed motive standards, including the provision Wal,-Mart cites, were specifically enacted to alter the substantive liability standards adopted in Price Waterhouse, not to adopt rules on the remedial stage from Teamsters. Landgrafv. USI Film Products, 511 U.S. 244, 251 (1994).
20 Plaintiffs also allege discrimination based on adverse impact theory. 42 U.S.c. § 2000e-2(k). Wal-Mart does not contend that a mixed motive defense applies to this claim.
40

21

v.

3

1 1357 (lIth

(defense ,""CUUHY

motive analysis where

established claim under higher standard); 1217.

plaintiffs have elected to prove their case

the

standard:

"because

'sex. 42

§ 2000e-

2(a).22 Wal-Mart cannot require plaintiffs invoke a different theory for

discrimination.

Moreover, nothing in the language of the "mixed motive" provisions refers

to class actions nor how an individual's entitlement to remedies must be proven in

a class action. There' of course, a large body of case law establishing how Title

21 Even ifWal-Mart were correct that the provision in theory allows for all affirmative defense of mixed motive, which it plainly does not, Wal-Mart failed to plead it. SER 383-85.
22 Notwithstanding Wal-Mart's misleading citation the statutory provisions, the statute makes clear that the limitation on remedies in 2000e5(g)(2)(B) applies only to claims proven under the "mixed motive" burden of proof. Nor does the Ninth Circuit's en bane decision in Costa support a determination that the defense is available to Wal-Mart here. See Costa v. Desert Palace, 299 d 838, 857 (9th '.2002) (noting "[i]n some cases, the employer may be entitled to the ... affirmative defense instruction. In others, it may not.").
41

can

on

numerous cases

J

23

that

1981a(b)(l), which

damages for

[or] reckless

to the federally

an

"

an

remedy

App. 36,48. Nothing in this language, or in the legislative history of the

Rights Act of 1991, prec1udes a class-wide remedy. Title refers to an

"aggrieved person" or "person aggrieved" extensively in other contexts. 42 U.S

§ 2000e-5(b), (c), (e)(l) and (f); see also, 42 U.S § 2000e(a) (a person is

defined as "one or more individuals.").

to "person" or "individual" has

never before been read to preclude class claims under Title or to require their

23 Where a statute is amended to alter relief provisions, but says nothing about its application in class actions, courts presume that Congress was aware of the statute's application to class actions and intended to leave the case law intact. Shook v. El Paso County, 386 FJd 963,970 (lOth CiI. 2004) ("The text of the PLRA says nothing about the certification of class actions. Based on the statute's absence of direction in that area, we presume that Congress jntended to leave Rule 23 intact.") (citing Dep 't ofFlous. & Urban Dev. v. Rucker, 535 U.S. 125, l33 n.4 (2002) and Edelman v. Lynchburg Call., 535 U.S. 106, 117-18 (2002)).

1 (J
24

v.

1

d

did

argues

VLH'V'-H'CH stage based on statistical methods violates

procedural due

case has so 25 "Challenges

law

defendant's due process or jury trial rights to contest each member's claim

individually, will not withstand analysis." Newberg on Class Actions, §10.5.

24 Indeed, the Supreme Court has detennined that, in enacting the Civil Rights Act of 1991, Congress intended to expand available remedies without diminishing existing remedies. Pollard v. E.I. du Pont de Nemours & Co., U.S. 843,852 (2001). Thus, Wal-Mart's "mixed motive" and "aggrieved individual" arguments, both of which presume that the Act limited available relief in class actions, are inconsistent with the legislative purpose.
25 The Third Circuit's 1976 opinion in Western Electric Co., Inc. v. Stern, 544 F.2d 1196 (3d Cir. 1976), does not as Wal-Mart suggests provide that an employer has a due process right to dispute the claim of each employee class member individually. This case simply affirms that either party can use anecdotal evidence at the liability stage. Wal-Mart also relies on cases in which a party was completezy barred from appearing, filing any pleadings, raising any objections, or seeking any relief. il.,"pp. 44~45, citing Degen v. United States, 517 U.S. 820 (1996); Hovey v. Elliott, 167 U.S. 409, 4l3-14 (1897); Nelson v. Adams USA, 529 U.S. 460,466-68 (2000). This is plainly not what the district court contemplated or required here. ER 1203 n.49.
43

use

it

on

plaintifIs'

IS

justified

the factors ""'H"'cH'J in determining whether

IS a

practice

Second, at remedial stage, Wal-Mart

present

evidence pertaining the

model

such as

include and the proper measure of damages/6

Wal-Mart makes no effort to apply nor does it even mention the

standards evaluating potential due process violations. Due process is not

fixed content unrelated to time, place and circumstances." Connecticut v. Doehr,

26 Wal-Mart attempts to conjure up a Seventh Amendment argument based on the court's suggestion that a Special Master might assist in miningWal-Mart's databases in order to craft a fom1ula. App. 46; ER 1206 n.50. This passing reference does not implicate the Seventh Amendment. Neither plaintiffs nor the district court suggested a special master would supplant jury fact-finding. The class back pay formula, whether calculated by a Special Master, as Wal-Mart presupposes will be done, or in competing calculations from the parties' experts, can be presented to the jury for its review and verdict. This Circuit has approved such a process in Hilao, 103 F.3d at 786. See also, In re Peterson, 253 U.S. 300, 309··310 (1920) (Brandeis, J.) ("New devices may be used to adapt the ancient institution to present needs and to make of [trial by jury] an efficient instrument in the administration ofjustice.").
44

501 "1 10 (1 1),

elToneous

of

safeguards,"

llF

Jlilao, 103

78

of

demonstrates that

district

protected due r'I'''''.('C>C

's

IS

it

no more In

lost wages or punitive damages than that which the class is legally

Hi/a 0 , 103 F.3d at 786; re Agent Orange Product Liability Litig, F. Supp.

740, 839 (E.D.N.Y. 1984) (defendant has no valid objection so long as it is "liable

for no more than the aggregate loss fairly attributable to its tortious conduct.").

Wal-Mart presents no basis to believe that the processes proposed by the district

court present any risk of "erroneous deprivation." Courts have found statistical

methods of proof more accurate than relying upon individual anecdotes in many

circumstances. supra 3

Plaintiffs J interest is to ensure that the court employs the most accurate and

manageable process for obtaining cornplete relief for the class. In a large class

case, Wal-Mart's insistence on individualized determinations would, as it intends,

45

are

courts across the

corrle.

App.

\Vhile

professes

nothing more than "the same right

as

other litigant," no defendant has the

form or

111

cases

it are

Wal-Mart's

would mask patterns of invidious discrimination by limiting courts to

reviewing one small piece of the puzzle at a

rather than the entire assembled

picture. Nor is such a result fair to the court system, as the burden of such

litigation would be far greater than the case plaintiffs seek to pursue.

Fully Supports the District Court's Use Statistical Methods at Stage

district court's approach to Stage II remedies was well within its

discretion. court found that Wal-Mart awarded differential pay increases in a

subjective manner, usually without documenting the reasons. ER 1149-51.

on an extensive factual record, the district court concluded that "this is precisely

the kind of case in which 'a class-wide approach to the measure of back-pay is

46

'"

career

or

data

a statistical

mean that the process will

class

members have not injured by discrimination. Because the data exists

carefully

district

distinguished its approach from cases that had used cruder formu1as to allocate

lump sums per capita among class members. An appropriate formula would result

in individualized back pay awards to class members based on their job history,

seniority, ratings, status, store location and other factors. ER 12 I 27

The Proposed Not Violate

for Award of Punitive Damages

Wal-Mart contends that a class-wide award of punitive damages would run

afoul of due process because it would allegedly punish legal conduct and award

damages uninjured victims. App. 46-47. This claim is without merit

27 The district court rejected Wal-Mart's claim that its database does not capture sufficient factors to make statistical back pay analyses rrleaningfuL ER 1213.
47

on

s

538

was

on

other policyholders in states

conduct was

there is no

punished

it occurred, since

law which

the

the district

s

specifies that any punitive damages

award will be "based solely on evidence of conduct that was directed toward the

class." 1192 (emphasis added). The

damage

will be calibrated

to the specific harm suffered by plaintiff here the total harm suffered by the

plaintiff class. State

538 U.S. at 422.

The district court imposed two additional due process protections. First,

recovery of punitive damages will be limited "to those class members who actually

recover an award lost pay, and thus can demonstrate that they were in fact

personally harmed by the defendant's conduct." 1192. Second, allocations of

punitive damages to individual class member must be "in reasonable proportion to

individual lost pay awards." Jd. See BMW v. Gore, 517 U. 559, 580-81 (1996)

48

as one ensure that

In
the

district court found that Rule 23(b)(2) certification was appropriate

because plaintiffs' primary goal is injunctive

1190. This finding is

fully consistent with the law of this Circuit and not an abuse discretion.

Certification

23(b)(2) is appropriate when a defendant "has

acted or refused to act on grounds generally applicable to the class," thus making

injunctive relief or declaratory relief appropriate for the class as a whole. Fed.

P. 23(b)(2). The Supreme Court has described "[c]ivi1 rights cases against

parties charged with unlawful, class-based discrimination" as particularly

appropriate for Rule (b)(2) certification. Amchem

'J Inc. v. Windsor, 521

U.S. 591, 614 (1997). This Court has acknowledged that the drafters of Rule

23(b)(2) specifically contemplated that employment discrimination actions would

be certified under that provision. Domingo, 727 F.2d at 1443 n.1l.

49

s

111

v,

318 d

litigation is' .

S

S

151 F 402

(5th '. 1998) its

approach. Molski, 318 F.3d

50.

'S

IS

consistent Molski. The named plaintiffs' uncontradicted testimony is that

"their central motivation" bringing the action is "to improve opportunities for

women Wal-Mart." 1190. The court found that the injunctive relief claims

"would achieve very significant long-term relief in the form of fundamental

changes to the manner in which Wal-Mart makes its pay and promotions decisions

nationwide..." Plaintiffs' decision to forego seeking compensatory damages

is further evidence of the primacy of injunctive relief Id. Cf Molski, 318 F.3d at

950 (finding injunctive relief the primary goal "[p]articularly in light of the fact

that claims of physical injury were [excluded from proposed settlementJ.,,).28

28 Wal-Mart suggests that, by waiving compensatory damages, the named plaintiffs are inadequate class representatives, an argument not raised below. App. 53 n.3. 11:ad plaintiffs sought compensatory damages, Wal-Mart would no doubt
50

are

the face these findings,

advances several

that are

supported by

or case

it offers its now familiar refrain

about its "unrebutted" statistics to claim there is no pattenl of discrimination

justifying injunctive relief. This factually inaccurate and merits-driven argument

finds no support in case law. Molski makes clear, the question is not

whether plaintiffs will ultimately prevail, but whether their primary goal in

bringing the action is to seek injunctive relief. Molski, 318 F.3d at 950.

Second, Wal-Mart contends that injunctive relief cannot predominate

because some class representatives and class members are former employees.

cite this as an additional reason that class treatment was inappropriate. This false "Catch-22" was easily avoided in this case, because plaintiffs proposed, and the district court ordered, opt-out rights for class members. Wal-Mart also asserts that there is a conflict between management class members and the class. This claim was properly rejected below. ER 1182-83. See Staton, 327 F.3d at 957.
51

no case

S111CC

will

as 111

for

treatment

5

is undisputed that two

plaintiff.s are

employees who

on behalf of the class. 29

show nothing more under 23

Third, Wal-Mart asserts, without citation to the

that plaintiffs'

monetary claims "amount to billions of dollars." App.

potential monetary

29 Plaintiff Gunter, who no longer works at Wal-Mart, alleged an interest in returning if she could be assured of a nono-discriminatory working environment SER 429. Under these circumstances, even a former employee has standing to seek injunctive relief. Wal-Mart's reliance on City ofLos Angeles v. Lyons, 461 U.S. 95, 102 (1983), an individual police misconduct case challenging the use ofa "choke-hold," is misplaced. This Court has repeatedly noted the limitations and exceptions to the holding of that case, such as where class claims are made, a pattern of illegal conduct is shown, and there is no issue of federal intervention into local law enforcement matters. See e.g. LaDuke v. Nelson, 762 F.2d 1318, l324-25 (9th Cir 1985). See also Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040-1041 (9th CiI. 1999) (standing issue in Lyons turned on plaintiffs ability to avoid engaging in illegal conduct). More applicable is the Supreme Court's recent decision of Gratz v. Bollinger, 539 U.S. 244, 260~262 (2003), where the Court found standing satisfied for a plaintiff denied college admission who went on to another school and alleged that he intended to apply for a transfer when the defendant ceased its discriminatory policy.

111

IS

a

the

and

a

s conduct, the less likely that

will be

appropriate. As the district court explained below, such a result

squares with the

purposes of

" 11

Molski, the proper analysis is not the theoretical monetary exposure, but the

primary goal of the litigation.

Pay
Under Title vn

as a Form Injunctive

Wal-Mart faults the district court for failing to treat back pay as a form of

monetary relief that weighs against 23(b)(2) certification. App.54. Yet, it is well-

established that back pay is an equitable, make-whole remedy under Title that

is fully consistent with 23(b)(2) treatment. Gotthardt v. Nat 'I. R.R. Passenger

Corp., 191 F.3d 1148, 11 5 (9th CiI. 1999) (back pay is equitable relief);

Allison, 151 F.3d at 415 (back pay has "long been recognized as an equitable

remedy under Title ... [that] conflicts in no way with the limitations of Rule

see

v.

. 1

5 15 15 a

55

it relies,

that back pay

Title is an "integral

equitable

Life Annuity

v.

218 n.4

(2002),

itself'vuXj.vV that

may

where plaintiffs seek back pay, App, 55 citing Williams v, Owens-Illinois,

665

918, 928-29 (9th Cir. 1982).

decision in Eubanks v. Billington, 110

F.3d 87,95 (D.C. . 1997), which it also cites, did not hold that back pay is

inconsistent with 23(b)(2) treatment; rather it explained that, under some

circumstances, a claim for back pay "may" reqUIre an opt-out right ~ exactly what

the district court ordered here. ER 1193.

A

23(b)(2) Class May Seek Punitive Damages

Wal-Mart suggests a claim punitive damages is "wholly'

with 23(b)(2) certification, a view that has not been adopted by this Circuit, and

whlch is odds the Molski mandate look to the plaintiffs' primary intent

54

m

30

on

s

6

(1999);

1988 18 3

punitive damages is to

the .

and

the

damages hinges, not on facts unique to each class member, but on the

defendant's conduct toward the class as a whole"). Its purpose is to "punish the

defendant and deter future wrongdoing." Cooper Indus., v. Leatherman Tool

Group, Inc., 532 U.S. 424, 432 (2001). Where, as here, plaintiffs allege a class-

wide patten1 and practice of discrimination, the punitive damage inquiry is

whether Wal-Mart acted in reckless disregard of the rights of the class. Such

30 Wal-Mart cites Williams, 665 F.2d 928-29, and Zinser v. Accufix Research Inst., Inc, 253 d 1180, 1195 (9th . 2001) for the proposition that a class action alleging punitive damages cannot be certified under Rule 23(b)(2). Neither case so held. Rather, under the very different facts of each case, this Court merely held that it was not an abuse of discretion for the lower court to deny (b)(2) certification.

s on an

31
an

district

correctly certified class-wide

claims

liability and injunctive relief purposes. concluded, however, back pay

for the promotion claim "would be limited to that subset the class for whom

objective applicant data exists." ER 121. This limitation is impossible to

with the court's basic factual finding:

Because most positions were not posted, class members had no ability to apply for, or otherwise fom1ally express their interest in, openings as they

31 Nor is the "aggrieved individual" language in Title inconsistent with the award of class-wide punitive damages. See discussion at Section
32 Wal-Mart urges the Court to rule that monetary relief will threaten the "cohesion and homogeneity" of the class, citing Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994). The Supreme Court's reference to (b)(2) certification in Tieor was not a holding, only a brief conm1ent in an order that dismissed a grant of certiorari as improvidently granted. At most, Tieor can be read to require an opt out right where substantial damages are sought. Molski, 318 F.3d at 948. Here, of course, there is an opt out right, which ensures that class members' due process rights are protected.
56

11

s

s

this case

a formula

was

to

"

1

itself

by Domingo, the

rejected

the

of the

s

those denied promotion by the tap-on-the-shoulder system characterized by no

posting, no application procedures and excessive subjectivity.

district

s limitation on the relief that many members of the

promotion class may seek was legal error. Neither Temnsters nor DOlningo

requires individual proof of interest to establish eligibility for back pay Stage

in all circumstances; rather each court tailored the relief process to the facts and

remedies sought in each case. In both Teamsters and Domingo, for example, the

employers had an application process, which has not been case at Wal- Mart

the positions at issue here. Teamsters, 431 . at 338; Domingo, 727 F at

57

33

IS

no

m

ever an

assumed

were aware of discriminatory hiring

and

that "denial past applications, even in

those Issue

more

than

deterrence in later years."

727 F.2d at 1445.

Where an individualized process for determining relief 1Il Stage cannot be

utilized because it would lead to a "quagmire of hypothetical judgments," as the

court found below, the Teamsters-hearing approach is particularly inappropriate.

In such circumstances, the scope ofWal-Mart's back pay exposure should be

conunensurate with the harm its discrimination has caused. If the trier fact

finds there was no application or posting process, and accepts plaintiffs' stical

analysis, WaI-Mart's liability for a total amount of back pay should foHow frmn

findings. Thereafter, in allocating that total amount among class members,

has no due process or statutory right to require either an expression of

33 In Domingo, while hiring occurred via word-of-mouth, an employee who managed to hear of a position could apply. See Domingo v. New England Fish Co., 445 Supp. 421, 435 (W.D. Wa. 1977).
58

or an

1

d

s

an

or

causes

to

as as possible, last vestiges"

discriminatory

431 S. 3 quoting

422 U.S. 41 18. The lower

s

on head,

maintaining a fully discriminatory system by eliminating any back pay exposure

when It lacked application and posting procedures. Ironically, Wal-Mart only

faces monetary exposure when it takes steps, however limited, implement a

posting system.

Women who were denied promotions under the "tap on the shoulder"

system are left with no remedy in this case. Their alternatives are to opt out and

file individual cases to obtain relief, thus undermining the efficiencies of Rule 23,

or to stay in this case support the liability finding, only to

the

remedial goals of Title because they will be denied

despite the clearly

discriminatory policy.

The district court's concem that there were insufficient proxies for interest

59

was

are

111

738 F

1 L

is a manageable

which

should receive a share the

to district court's assumption, the

IS

to

the same

pools utilized making a liability

1

use a variety

methods to

the "rough justice" in distributing

pay that is the

necessary goal of any approach. Segar, 738

at 1 1293; Pettway, 494 F.2d

at 262-63; DOIningo, 727 F.2d at 1444-45. Feeder pools can be further narrowed

by a variety of factors, such as limiting eligibility to those class members who

most closely fit the profile of successful applicants or considering other

documentary evidence. The court could also consider further limiting back pay to

the class members who file claim forms. Full development of the record will

shape these factors and final adjUdication will define the contours ofliability. The

district court, therefore,

in limiting ebgibility for Stage promotion

remedies.

60

Webber Joseph M. Sellers Julie Goldsmith Reiser COl-lEN, MILSTEIN,
& 1100 New York Ave., #500 Washington, DC 20005-3964 Telephone: (202) 408-4600 Facsimile: (202) 408-4699
Counsellor Appellees Cross-Appellants

Jocelyn Brad Seligman
THE IMPACT FUND
125 University Avenue Berkeley, 94710 Telephone: (510) 845-3473 Facsimile: (510) 845-3654

61

P.
of

style requirements

been

In a

point font size and Times New Roman type style.

Fed. App.

P. 32(a)(6)

it

Brad Seligman Counsel ofRecord
THE IMPACT FUND
125 University Avenue Berkeley, CA 94710-1616 (510) 845-3473
Attorneys for Plaintiffs-Appellees and Cross-Appellants

cases

I

I

no

125 University Avenue Berkeley, 947] 0-1616
10) 845··3473
Attorneys for Plaintiffs-Appellees and Cross-Appellants

Grossman

Nancy Abell

PAUL, HASTINGS,

&

WALKER

515 South Flower Street

Los Angeles, 90071

Telephone: (213)683-6000

.

13)627-0705

paulgrossman@paulhastings.com

E.Lees Mary GIBSON, DUNN
3 South Grand Avenue Los Angeles, CA 90071 Telephone: (213)229-7000 Facsimile: (213)229-7520 tboutrous@gibsondunn.com

Furthem1ore, on December 29,2004, the principle brief for appellees and cross-appellants was fIled with the Ninth Circuit by sending the original and fIfteen copies by first class mail, postage pre-paid to the Clerk, Ninth Circuit Post Office Box 193939, San Francisco, California 94119-393

Christine Webber

 
 Nos. 04-16688 & 04-16720
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BETTY DUKES, PATRlCIA SURGESON, CLEO PAGE, DEBORAH GUNTER, KAREN WILLIAMSON, CHRlSTINE KWAPNOSKI, and EDITH ARANA PlaintiffslAppellees, v. WAL-MART STORES, INC., . Defendant!Appellant.
)
ON APPEAL FROM THE UNITED STATES DISTRlCT COURT FOR THE NORTHERN DISTRlCT OF CALIFORNIA
PLAINTIFFS' PETITION FOR PANEL REHEARING Fed. R. App. P. 40

JOSEPH M. SELLERS

BRAD SELIGMAN

CHRlSTINE E. WEBBER

Counsel ofRecord

JENNY R. YANG

JOCELYN D. LARKIN

COI-IEN, MILSTEIN, HAUSFELD &

THE IMPACT FUND

TOLL, PLLC

125 University Avenue, Suite 102

1100 New York Ave., #500

Berkeley, CA 94710

)

Washington, D.C. 20005-3964

(202) 408-4600

(510) 845-3473

IRMA D. HERRERA DEBRA A. SMITH EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250 San Francisco, CA 94103 (415) 621-0672
SHEILA Y. THOMAS 5260 Proctor Avenue Oakland, CA 94618 (510) 339-3739
STEVE STEMERMAN ELIZABETH A. LAWRENCE DAVIS, COWELL & BOWE, LLP 595 Market Street, Suite 1400 San Francisco, California 94105 (415) 597-7200

STEPHEN TINKLER THE TINKLER LAW FIRM 309 Johhson Street Santa Fe, NM 87501 (505) 982-8533
DEBRA GARDNER PUBLIC JUSTICE CENTER 500 East Lexington Street Baltimore, MD 21202 (410) 625-9409
SHAUNA MARSHALL HASTINGS COLLEGE OF THE LAW 200 McAllister Street San Francisco, CA 94102 (415) 565-4685
MERIT BENNETT MERIT BENNETT, P.C. 460 St. Michaels Drive, Suite 703 Santa Fe, NM 87505 (505) 983-9834

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................................................................................... ii
I. Basis for Petition for Panel Rehearing........................................................... I
II. This Court Should Conform the Opinion With the Holding In Bates .... ....... 3
III. Excluding Class Members Not Employed When the Case Was Filed Would Have Adverse Consequences In This and Future Title VII Class Actions ................................................................................................. 4
IV. While a District Court Could Consider the Employment Status of Class Members In Making Its Rule 23(b)(2) Determination Wal-Mart Failed to Make This Argument Below ......................................... 8
V. Conclusion ................................................................................................... 12

-1-

TABLE OF AUTHORITIES

Cases

Page(s)

Adams v. R.R. Donnelley & Sons, 2001 WL 336830 (N.D. Ill. Apr. 6, 2001) ........................................................... 9

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ............................................................................................. 6

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974) ............................................................................................... 6

Bates v. United Parcel Service, Inc., No. 04-17295, 2007 WL 4554016 (9th Cir. Dec. 28, 2007)......................... 1, 3-4

Blum v. Yaretsky, 457 U.S. 991 (1982) ............................................................................................. 3

Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984) ............................................................................................. 7

Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983) ............................................................................................. 7

Gratz v. Bollinger, 539 U.S. 244 (2003) ........................................................................................... 10

In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) ............................................................................... 9

Int'l Bhd. a/Teamsters v. United States,
431 U.S. 324 (1977) ............................................................................................. 7

Janes v. Wal-Mart Stores, 279 F.3d 883 (9th Cif. 2002) ............................................................................. 11

Lemon v. Int'l Union a/Operating Eng'rs Local No. 139, 216 F.3d 577 (7th Cif. 2000) ............................................................................. 12

Lewis v. Casey, 518 U.S. 343 (1996) ............................................................................................. 3

-ll-

Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ..................................................................... 2,8, 11
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ............................................................................................. 7
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001) ............................................................................. 8 United States v. Hays,
515 U.S. 737 (1995) ........................................................................................... 11 Walsh v. Nev. Dep 't o/Human Resources,
471 F.3d 1033 (9th Cir. 2006) ........................................................................... 10 Walters v. Reno,
145 F.3d 1032 (9th Cir. 1998) ....................................................................... 9,10 Wetzel v. Liberty Mutual Ins. Co.,
508 F.2d 239 (3d Cir. 1975)................................................................................. 7 Williams v. Owens-Illinois, Inc.,
665 F.2d 918 (9th Cir. 1982) ............................................................................... 6 Other Authorities Federal Rule of Civil Procedure 23 ................................................................. passim Title VII of the Civil Rights Act of 1964,42 U.S.C. §§ 2000e, et seq. ......... passim
-111-

I. Basis for Petition for Panel Rehearing
In its December 11,2007 Order and Opinion, this Court addressed the "standing" of putative class members to seek injunctive and declaratory relief. It drew a distinction between those who were not employed on the date that the complaint was filed and those who were. Concluding that only the latter group had standing to seek injunctive relief, the Court affirmed that the Rule 23(b)(2) class could properly go forward on their behalf. It remanded the case to the district court to reconsider the scope of the class. Dukes v. Wal-Mart, Inc., Nos. 04-16688 & 04-16720, slip op. at 16239-41 (9th Cir. Dec. 11,2007) (the "Opinion").
The Court's discussion of class member standing is inconsistent with this Court's en banc decision in Bates v. United Parcel Service, Inc., No. 04-17295, 2007 WL 4554016 (9th Cir. Dec. 28, 2007), issued 17 days after the decision in this case. Following Supreme Court precedent, the en banc Court in Bates held that, so long as "at least one named plaintiff' has standing to seek injunctive relief, the entire class has standing to seek injunctive relief. Bates, 2007 WL 4554016, at *4. Because two named plaintiffs in Dukes have standing to seek injunctive relief, the entire class -- not just those employed at filing -- has standing to seek injunctive relief.
1

It is particularly critical that the panel correct this error because the Opinion suggests that putative class members not employed on the date the complaint was filed should be excluded from the certified class. There is no valid basis to exclude these thousands of women - including the original charging party - who have timely claims for the same discriminatory conduct that the balance of the class also challenges. Excluding these class members would undermine the purposes of both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. and Federal Rule of Civil Procedure 23.
While not relevant to standing or to the scope of the class, the number of former employees in a proposed class may be of limited relevance to the Rule 23(b)(2) predominance inquiry in appropriate cases. See Molsld v. Gleich, 318 F.3d 937,950 & n.l5 (9th Cir. 2003). If proposed injunctive relief would benefit only a few class members, it might be considered insubstantial and fail to satisfy the predominance test. The district court never considered that argument, as WalMart did not raise it below. Instead, based on the evidence that was presented, the district court made a finding that injunctive relief would "achieve very significant long-term relief' for "not only current class members, but all future female employees as well." ER 1190.
Accordingly, this Court should affirm the class certification order in full. Should the Court decide that remand is still necessary, the order should clarify that
2

class membership need not be redefined and the employment status of class members is relevant, if at all, only to Rule 23(b)(2) predominance.
II. This Court Should Conform the Opinion With the Holding In Bates
The Opinion concludes that "putative class members who were no longer Wal-Mart employees at the time Plaintiffs' complaint was filed do not have standing to pursue injunctive or declaratory relief." Dukes, slip op. at 16240. However, the Court held that the case can proceed on behalf of "[t]hose putative class members who were still Wal-Mart employees" on the date the complaint was filed as they "do have standing to seek the injunctive and declaratory relief." Id. The Court remanded the class certification order "for a determination of the appropriate scope of the class." Id. at 16241. The implication is that class members no longer employed when the complaint was filed should be excluded from the class.
This reasoning is at odds with Supreme Court precedent as well as Bates. The standing of the class to seek particular remedies is determined by the standing of the named plaintiffs to seek such relief. Lewis v. Casey, 518 U.S. 343, 357-58 (1996); Blum v. Yaretsky, 457 U.S. 991,1000-01 & n.l3 (1982). In Bates, this Court confirmed that if one named plaintiff has standing to seek the requested relief, the class has standing to seek the same relief. Bates, 2007 WL 4554016, at
3

*4. Once the class is certified, standing for "the entire ... class" is established. [d. at *7. The panel's observations about standing should be conformed with the ruling in Bates.
Here, two named plaintiffs have standing to seek injunctive relief. Betty Dukes and Christine Kwapnoski were employed at Wal-Mart on the date the complaint was filed and are still employed at Wal-Mart. ER 9; SER 708. Consequently, they have standing to seek injunctive relief, and the class they represent also has standing to seek such relief. All of its members are eligible to participate in a class certified under Rule 23(b)(2).
III. Excluding Class Members Not Employed When the Case Was Filed Would Have Adverse Consequences In This and Future Title VII Class Actions
In most Title VII class actions, the class of victims affected by an alleged discriminatory practice will include both current and former employees. This is, of course, because employee turnover is common in the U.S. economy, particularly in the retail industry. I One would expect turnover to be even higher in a workplace where discrimination is prevalent.
According to the U.S. Bureau of Labor Statistics, the turnover rate within the retail industry for 2006 was 55.6%. U.S. Dep't of Labor, Bureau of Labor Statistics, Job Openings and Labor Turnover Survey (2006), available at http://data. bls. gov/PDO/outside. jsp?survey=jt (query: "total separations").
4

Title VII requires that a victim of discrimination file an administrative charge of discrimination with the Equal Employment Opportunity Commission (EEOC) before filing a lawsuit. 42 U.S.C. § 2000e-5(b). It is often many months or years between the time that the first charge is submitted to the EEOC and a federal lawsuit is filed. 2 Invariably, there will be employee turnover and a number of aggrieved workers will leave the workplace during that time period, all of whom the Opinion in its present form could exclude from a Rule 23(b)(2) class.
In this case, nearly two years elapsed between the filing of the earliest charge of discrimination and the filing ofthe class action complaint. Stephanie OdIe filed the first charge in October 1999; Plaintiffs filed the First Amended Complaint, with class allegations, in June 2001. ER 21, 1262. Undoubtedly, many female workers left their employment at Wal-Mart during that 20-month time period. Under the Court's reasoning, none of these former employees would be eligible to participate in the class - including Stephanie OdIe - even though they have timely claims of discrimination and were subjected to the same pattern and
2 In 2006, "the average charge processing time was 193 days, up significantly from 171 days in FY 2005." See Performance and Accountability Report. http://www.eeoc.gov/abouteeoc/plan/par/2006/obj ective1.html#resolution. The investigation of charges of systemic discrimination can take considerably longer to complete. See Systemic Task Force Report to the Chair of the EEOC. http://www.eeoc.gov/abouteeoc/task reports/systemic.html#IC (finding significant staffing challenges in the EEOC's investigation of systemic cases).
5

practice of discrimination.3 This portion of the class would be deprived of the
benefits of Title VII. Cf Albemarle Paper Co. v. Moody, 422 U.S. 405,418
(1975) (emphasizing the court's duty "to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future").
Truncating the class to include only those employed on the complaint filing date would also undermine the EEOC administrative process in future cases. By providing an inexpensive method for investigating and conciliating potential claims of discrimination short of litigation, this administrative exhaustion requirement was designed to benefit both employers and employees. See Alexander v. Gardner~Denver Co., 415 U.S. 36, 44 (1974) (noting that Congress created the EEOC and established an administrative procedure to encourage cooperation and voluntary compliance with Title VII). Rather than supporting this process, the Court's decision creates an incentive for plaintiffs to conclude the administrative process and initiate litigation as soon as possible to minimize the exclusion of affected workers from the proposed class.
Equally troubling, the Opinion creates a "perverse incentive" for employers to fire employees who might initiate -- or simply be a member of -- a Title VII 3 Class membership is based upon the date of the earliest charge of discrimination filed with the EEOC, not the date when the action is filed in court. Williams v. Owens-Illinois, Inc., 665 F.2d 918, 923 n.2 (9th Cir. 1982).
6

class action. Cj Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (concluding that similar concerns support protection of former as well as current employees under Title VII's anti-retaliation provision). An employer may calculate that firing a potential plaintiff or class members prior to the initiation of a lawsuit would deprive the class of a named plaintiff or limit the siz<,< of the class. See Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239,247 (3d Cir. 1975) (ifformer employee could not be a class representative for current employees, "employers would be encouraged to discharge those employees suspected as most likely to initiate a Title VII suit").
The Opinion also undermines the goals of Rule 23. Where a group of victims challenge the same discriminatory employment practice, Rule 23 provides an efficient and economical means of adjudicating these claims. Cj Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345,349 (1983) (recognizing "the principal purposes of the class action procedure" are the "promotion of efficiency and economy of litigation"). Title VII class actions present an additional benefit to victims because a pattern or practice liability finding establishes the predicate for . injunctive and monetary relief. Cooper v. Federal Reserve Bank, 467 U.S. 867, 876 n.9 (1984); Int'l Bhd. ofTeamsters v. United States, 431 U.S. 324, 330 (1977). If victims no longer employed when the complaint is filed are ineligible for class
7

membership, they will have to proceed separately without these benefits of class litigation, promoting multiple actions challenging the same discriminatory conduct.
This Court should modifY its Opinion to ensure that these unintended consequences do not follow from its erroneous interpretation of the law.
IV. While a District Court Could Consider the Employment Status of Class Members In Making Its Rule 23(b)(2) Determination Wal-Mart Failed to Make This Argument Below
Although not a question of standing, the employment status of class members may be of some relevance to the question whether certification under Rule 23(b)(2) is warranted. In this case, however, the presence offormer employees in the class did not, and should not, affect the district court's finding that injunctive relief was the predominant form of relief sought.
In determining whether a class may be certified under Rule 23(b)(2), the district court must assess whether monetary relief predominates over the injunctive and declaratory reliefsought. Molski, 318 F.3d at 950 & n.15; Robinson v. MetroNorth Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001). In making this assessment, the trial court must evaluate the significance of the injunctive relief sought and determine whether a "reasonable plaintiff' would have sought such relief in the absence of monetary claims. Robinson, 267 F.3d at 164.
8

In weighing the importance ofthe injunctive relief, plaintiffs need not show that every class member is entitled to -- or will benefit from -- the same relief. As long as a significant portion of the class may benefit from injunctive relief, Rule 23(b)(2) certification is available. See In re MonumentalLife Ins. Co., 365 F.3d 408,416 (5th Cir. 2004) (The parties' "experts estimate that between one million and 4.5 million of 5.6 million issued policies remain in-force.... [T]he proportion is sufficient, absent contrary evidence from defendants, that the class as a whole is deemed properly to be seeking injunctive relief."); see also Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998) ("Even if some class members have not been injured by the challenged practice, a class may nevertheless be appropriate.,,)4
In an employment case, the number of former employees in the class might be a relevant factor in determining the relative importance of injunctive and monetary remedies. For example, where an employer has downsized its plant or eliminated particular job categories, there may be few class members who will benefit from future injunctive relief. In that case, the former employees' interest in compensation may be paramount. See, e.g., Adams v. R.R. Donnelley & Sons,
2001 WL 336830, at *18 (N.D. Ill. Apr. 6, 2001).
4 The Advisory Committee recognized that Rule 23(b)(2) certification may be warranted where the "[a]ctionor inaction is directed to a class... even ifit has taken effect or is threatened only as to one or a few members ofthe class, provided it is based on grounds which have general application to the class." Rule 23(b)(2) 1966 Advisory Committee Notes (emphasis added).
9

In assessing the value of injunctive relief, however, the district court's analysis can never be reduced to a simple head count of current versus former employees; the analysis will necessarily be more nuanced. For example, some former employees may have an interest in injunctive relief, such as reinstatement rights available under Title VII. Walsh v. Nev. Dep 't ofHuman Resources, 471 F.3d 1033, 1037 (9th Cir. 2006). Similarly, plaintiffs willing to return to the workplace once discriminatory conditions are eliminated may also have sufficient interest in the workplace to have standing to obtain injunctive relief Cf Gratz v. Bollinger, 539 U.S. 244,262 (2003) (applicant denied admission to university and who expressed a desire to reapply may challenge freshman and transfer admission practices). 5
In addition, the district court must assess the benefits of proposed injunctive relief to not only current but future employees. If a liability judgment results in a multi-year consent decree, the injunctive relief can greatly benefit the careers of future workers (who, of course, will have no claim for monetary relief). Cf Walters, 145 F.3d at 1048 (explaining that injunctive relief is proper where legal remedies would not adequately compensate class members for their injuries).
5 Plaintiffs presented testimony from former employees about their interest in returning to Wal-Mart if the company eliminated its discriminatory practices. SER 429,584. Moreover, Wal-Mart has rehired some former employee class members. SER 544-45,549,576.
10

Indeed, in finding that the injunctive relief sought was substantial, the district court
took into account the benefits to future employees:
Plaintiffs' claims for injunctive and declaratory relief, if successful, would achieve very significant long-term relief in the form of fundamental changes to the manner in which Wal-Mart makes its pay and promotions decisions nationwide that would benefit not only current class members, but all future female employees as well.
ER 1190. The district court fully complied with Molski when it found reasonable
plaintiffs would have filed this action solely for injunctive relief. See Molski, 318
F.3d at 950 & n.15. While the district court might have properly considered the
employment status of class member employees in making the Rule 23(b)(2)
predominance determination, it did not do so because Wal-Mart did not make this
argument below nor did it offer evidence about the number of former employees in
the class. See Defendant Wal-Mart Stores Inc. 's Opposition to Plaintifft' Motion
for Class Certification, at 44 - 50. Having failed to raise the argument below, it is
waived. Janes v. Wal-Mart Stores, 279 F.3d 883, 887 (9th Cir. 2002).6
6 Wal-Mart raised the argument for the first time before this Court. See Principal Brieffor Wal-Mart Stores, Inc. at 52. An issue of Article III standing may be raised for the first time on appeal. United States v. Hays, 515 U.S. 737, 742 (1995)("The question of standing is not subject to waiver...."). However, when properly understood as a Rule 23 factor rather than a standing issue, WaIMart's argument must be deemed waived because it was not raised below.
11

Should the Court determine that the trial judge must nonetheless revisit the class certification order on this issue, the remand instructions should clarify that the employment status of class members is not a standing issue, requiring a reassessment ofthe scope of the class. Instead, any evidence of the number of former employees in the class at the time that the complaint was filed could, if appropriate, be considered as part of the Rule 23(b)(2) predominance determination. The trial court would retain its broad discretion to consider alternative certification under Rule 23(b)(3) or 23(c)(4) as well. Lemon v. Int'! Union a/Operating Eng'rs Local No. 139,216 F.3d 577, 581-82 (7th Cir. 2000).
V. Conclusion
This Court should reconcile its opinion with the holding in Bates concerning the determination of standing in a class action. Because Wal-Mart has waived any
12

argument about the employment status ofthe class members, the class certification order should be affirmed.

Dated:

January 8,.2008

Respectfully submitted,

Joseph M. Sellers Christine E. Webber Jenny R. Yang COHEN, MILSTEIN, HAUSFELD & TOLL, PLLC 1100 New York Avenue, Suite 500 Washington, DC 20005 Telephone: (202) 408-4600 Facsimile: (202) 408-4699

B;~~
Jocelyn D. Larkin (SBN 110817) THE IMPACT FUND 125 University Avenue, Suite 102 Berkeley, CA 94710 Telephone: (510) 845-3473 Facsimile: (510) 845-3654

13

Form 11

CERTIFICATE OF COMPLIANCE PURSUANT TO CIRCUIT RULES 35-4 AND 40-1

I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached Petition for Panel Rehearing is

Proportionately spaced, has a typeface of 14 points or more and contains ___ words (Petitions and answers must not exceed 4,200 words).

or

Monospaced, has 10.5 or fewer characters per inch

and contains

words or

lines of text

(petitions and answers must not exceed 4,200 words

or 390 lines of text.

or
1L In compliance with Fed. R. App. 32(c) and does not exceed 15 pages.

Joseph M. Sellers Christine E. Webber Jenny R. Yang COHEN, MILSTEIN, HAUSFELD & TOLL, PLLC 1100 New York Avenue, Suite 500 Washington, DC 20005 Telephone: 202.408.4600 Facsimile: 202.408.4699

Bl;ad~~
Jocelyn D. Larkin (SBN 110817) THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 Telephone: 510.845.3473 Facsimile: 510.845.3654

CERTIFICATE OF SERVICE

The undersigned hereby certifies that on this 8th day of January 2008, I

caused to be served a true and correct copy of the foregoing Plaintiffs' Petition for

Panel Rehearing Fed. R. App. P. 40, via overnight mail on the following counsel of

record:

.

Attorneys for Defendant Wal-Mart Stores, Inc.
Theodore J. Boutrous, Jr. Gail E. Lees GIBSON, DUNN & CRUTCHER 333 South Grand Avenue Los Angeles, CA 90071

Nancy L. Abell PAUL, HASTINGS, JANOFSKY, & WALIZER, LLP Twenty-Fifth Floor 515 South Flower Street Los Angeles, CA 90071-2228

Mark A. Perry Amanda M. Rose Jaime D. Byrnes GIBSON, DUNN & CRUTCHER, LLP One Montgomery Street San Francisco, CA 94104

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT _____________________

Nos. 04-16688 & 04-16720 _____________________

BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, DEBORAH GUNTER, KAREN WILLIAMSON, CHRISTINE KWAPNOSKI, and EDITH ARANA

Plaintiffs/Appellees/Cross-Appellants,

v.

WAL-MART STORES, INC.,

Defendant/Appellant/Cross-Appellee. _____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA _____________________

REPLY BRIEF OF APPELLEES AND CROSS-APPELLANTS IN SUPPORT OF CROSS-APPEAL _____________________

JOSEPH M. SELLERS CHRISTINE E. WEBBER CHARLES E. TOMPKINS, IV JULIE GOLDSMITH REISER COHEN, MILSTEIN, HAUSFELD &
TOLL, PLLC 1100 New York Ave., #500 Washington, D.C. 20005-3964 (202)408-4600

BRAD SELIGMAN Counsel of Record
JOCELYN D. LARKIN THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 (510) 845-3473

Attorneys for Plaintiffs-Appellees and Cross-Appellants
(Additional Counsel Listed Inside)

IRMA D. HERRERA DEBRA A. SMITH EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250 San Francisco, CA 94103 (415) 621-0672
SHEILA Y. THOMAS 5260 Proctor Avenue Oakland, CA 94618 (510) 339-3739
STEVE STEMERMAN ELIZABETH A. LAWRENCE DAVIS, COWELL & BOWE, LLP 595 Market Street, Suite 1400 San Francisco, California 94105 (415) 597-7200

STEPHEN TINKLER CHARLES FIRTH TINKLER & FIRTH 309 Johnson Street Santa Fe, NM 87501 (505) 982-8533
DEBRA GARDNER PUBLIC JUSTICE CENTER 500 East Lexington Street Baltimore, MD 21202 (410) 625-9409
SHAUNA MARSHALL HASTINGS COLLEGE OF THE LAW 200 McAllister Street San Francisco, CA 94102 (415) 565-4685
MERIT BENNETT MERIT BENNETT, P.C. 460 St. Michaels Drive, Suite 703 Santa Fe, NM 87505 (505) 983-9834

TABLE OF CONTENTS
Page
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. Class Members Exposed to the Greatest Opportunities for Discrimination in Promotions Will Have No Remedy Under the District Court’s Application-Only Formula or Wal-Mart’s Individual Hearing Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. Wal-Mart Has No Statutory or Due Process Right to Individualized Hearings at Stage II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Title VII Contains No Requirement that Interest in Promotions Be Demonstrated in All Cases . . . . . . . . . . . . . . . 7
B. Wal-Mart’s Due Process Interest in the Determination of its Aggregate Liability is Fully Accommodated in Stage I Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Workforce Data Will Yield a More Accurate Computation of Back Pay Owed by Wal-Mart Than Would Individual Class Member Hearings . . . . . . . . . 13
2. Courts Endorsing the Use of Workforce Data to Determine Lost Earnings Have Not Required Individual Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Wal-Mart’s Proposed Individualized Stage II Process Ignores the Effect of Stage I Findings and Would Rely on Speculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. Wal-Mart’s Defenses in Stage II Will Be Limited by the Stage I Liability Finding . . . . . . . . . . . . . . . . . 18
i

2. Because of Wal-Mart’s Practices, Individual Promotion Hearings Will Be Based on Rank Speculation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. At Stage II, Court in Equity May Use Any Reasonable Method of Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
IV. Wal-Mart’s Belated Attempt to Raise Commonality Arguments Against the Certification of Promotion Claims Should be Rejected . . . . . 28
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ii

TABLE OF AUTHORITIES

Cases

Page(s)

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7

Auer v. Robbins, 519 U.S. 452 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Chewning v. Seamans, 26 F.E.P. 731 (D.D.C. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Confederated Tribes of Umatilla Indian Reservation v. Bonneville Power Authority, 342 F.3d 924 (9th Cir. 2003) . . . . . . . . . 28, 30

Connecticut v. Doehr, 501 U.S. 1 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . 10, 14, 16, 26, 27
EEOC v. Chicago Miniature Lamp Works, 640 F. Supp. 1291 (N.D. Ill. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15
EEOC v. Chicago Miniature Lamp Works, 668 F. Supp. 1150 (N.D. Ill. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

EEOC v. O & G Spring & Wire Forms Spec. Co., 38 F.3d 872 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 27

iii

Cases

Page(s)

EEOC v. Sears, 628 F. Supp. 1264 (N.D. Ill. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Franks v. Bowman Transp. Co., Inc., 424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hameed v. Int’l Ass’n of Bridge, Structural and Ornamental Iron Workers, 637 F.2d 506 (8th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 19, 27

Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 28
Int’l Bhd. Of Teamsters v. United States, 431 U.S. 324 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 8, 12, 16, 18, 19

Jones v. American Postal Workers Union, 192 F.3d 417 (4th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Kraszewski v. State Farm Gen. Ins. Co., No. C-70-1261 TEH, 1986 WL 11746 (N.D. Cal. July 17, 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
MacKenzie v. Sawyer, 684 F.2d 62 (D.C. Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Pettway v. American Cast Iron Pipe Co. (Pettway III), 494 F.2d 211 (5th Cir. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 27

Pettway v. American Cast Iron Pipe Co. (Pettway V), 681 F.2d 1259 (11th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11, 15
Pitre v. Western Elec. Co., 843 F.2d 1262 (10th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

iv

Cases

Page(s)

Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614 (6th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Reed v. Lockheed, 613 F.2d 757 (9th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12, 14, 15, 26, 27
Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 26
Stender v. Lucky Stores, 803 F. Supp. 259 (N.D. Cal. 1992) 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Stewart v. Gen. Motors Corp., 542 F.2d 445 (7th Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 14, 26

STATUTES 42 U.S.C. § 2000e-2, et. seq . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

MISCELLANEOUS
Brief of the Equal Employment Opportunity Commission in Support of the Plaintiffs-Appellees, Beck v. The Boeing Co., No. 01-80241 (9th Cir.) . . . 11

v

I. Introduction The district court certified plaintiffs’ class-wide promotion claim to permit
them to seek injunctive and declaratory relief, but limited monetary relief to those class members for whom there was objective evidence of interest in promotion. Wal-Mart endorses the district court’s interest prerequisite, but goes much further. It insists that each woman must prove she was qualified for and had an interest in promotion in a contested individual Stage II hearing which will attempt to recreate the decision-making process for each disputed promotion.
Women at Wal-Mart were denied promotions because Wal-Mart’s selection system included no mechanism for women to express their interest in promotion, and Wal-Mart’s managers were free to apply subjective, unwritten criteria to their selection decisions. Now Wal-Mart seeks to deny these women relief by exploiting the same flawed promotion process that, by Stage II, will have been proved unlawful. First, Wal-Mart uses its own failure to record employees’ interest in promotion as a basis to deny relief because of the lack of contemporaneous, objective interest in a promotion. Second, Wal-Mart wants the opportunity to apply subjective criteria not shown to be job related to deny individual class members relief, even if the class is able to prove that Wal-Mart’s use of subjective criteria had an unlawful disparate impact on the class.
1

As a matter of law, plaintiffs need not establish their interest in promotion if the employer’s own promotion system did not require it. It is undisputed that WalMart had no “expression of interest” requirement, nor did its system even allow employees to express interest in most promotions. Accordingly, Wal-Mart has no due process right to compel women to prove interest on an individual basis.
Indeed, Wal-Mart’s only due process interest is in an accurate determination of its total monetary liability to the class. Due process is best served by whichever method of determining back pay is likely to be most accurate and fair. Determination of its aggregate liability at Stage I would be more accurate and would preserve the benefits of class treatment for thousands of women who will otherwise have no remedy in this action. If Wal-Mart chooses to argue that differences in interest between male and female workers explains promotion disparities, it may do so at Stage I. If its argument were accepted by the finder of fact at Stage I, Wal-Mart’s aggregate back pay liability would be reduced or eliminated.
Wal-Mart’s assertion that Stage II individual hearings will be a more accurate and effective means for determining aggregate liability does not withstand examination. Under the facts of this case, an individualized hearing process would be an entirely speculative endeavor, bearing no relationship to Wal-
2

Mart’s actual promotion practices and shedding no light on whether, in a hypothetical non-discriminatory system, women would be less qualified or interested in promotion than men.
Wal-Mart blames any manageability problems at Stage II on plaintiffs for seeking a nationwide class. Yet, the intractably speculative nature of individual hearings in this case follows directly from Wal-Mart’s use of a subjective process without written criteria or any application procedure. An individualized Stage II process would lead to a “quagmire of hypothetical judgments” even if this case were limited to a single store. Given Wal-Mart’s business practices, there will be neither documents nor memory sufficient to recreate who would have been selected for a particular position in a hypothetical system free of discrimination. A process built on layer upon layer of guesswork is not due process.
Finally, Wal-Mart uses a footnote to launch a belated attack on the underlying certification of plaintiffs’ class-wide promotion claim, alleging that promotion decisions were too decentralized to support Rule 23(a) commonality. The argument comes too late and, in any event, fails. The district court’s determination was amply supported by the record.
3

II. Class Members Exposed to the Greatest Opportunities for Discrimination in Promotions Will Have No Remedy Under the District Court’s Application-Only Formula or Wal-Mart’s Individual Hearing Approach The district court limited back pay relief for class members with promotion
claims to the “subset of the class for whom objective applicant data exists.” ER 1211. Wal-Mart’s alternative formulation for Stage II remedial proceedings is even more restrictive, insisting that each individual promotion claim be re-litigated from scratch, including an individual showing of interest for each particular promotion. Reply at 57. Neither method satisfies the remedial purposes of Title VII and both will leave the class members who may have suffered the greatest losses – denial of lucrative promotional opportunities – with no remedy in this case.
The Supreme Court has mandated that victims must be made whole for the injuries they have suffered on account of unlawful employment discrimination. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). The trial court has an obligation to fashion “the most complete relief possible.” Id. Once a violation is found, there is a strong presumption in favor of awarding back pay. Back pay may be denied only in “exceptional circumstances,” which are “exceedingly rare.” Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 626 (6th Cir. 1983).
4

In calculating relief, “all doubts are to be resolved against the proven discriminator
rather than the innocent employee.” MacKenzie v. Sawyer, 684 F.2d 62, 77 (D.C.
Cir. 1982).
In determining how to fulfill Title VII’s mandate, the Supreme Court has
directed courts to “fashion such relief as the particular circumstances may require
to effect restitution.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 364
(1977) (emphasis added). For this reason, it is important to focus on the
undisputed evidence of Wal-Mart’s actual promotion practices. The only
established qualifications for promotion into in-store management positions were
minimum corporate guidelines. ER 1152. These guidelines required that
candidates have an “above average” evaluation, at least one year in their current
position, be current on training, not be in a high shrink department or store, be on the company’s “Rising Star” list, and be willing to relocate.1 Id. Beyond these
1 Plaintiffs have alleged that the relocation requirement and Wal-Mart’s use of subjective criteria, such as the Rising Star designation, both had a disparate impact on women. See Motion for Class Certification at 22:19-22, 32:20-34:1, 38:8-9, 41:14-42:2 (D.E. 99). Wal-Mart argues that the district court’s decision did not certify plaintiffs’ disparate impact claim. Reply at 47, n.15. Its contention is meritless. The court’s opinion granted the certification requested by plaintiffs, except for the limitation on class members seeking back pay relief for promotion claims. ER 1219-20. The court did not distinguish between plaintiffs’ disparate treatment and disparate impact theories and certainly expressed no intention to limit the substantive theories that plaintiffs could pursue.
5

minimum qualifications, promotion decisions were left to the subjective judgment of Regional and District Managers who could apply whatever unwritten factors they chose. ER 1152.
The qualifications for promotion did not include a requirement that candidates express an interest in promotion in order to be eligible for consideration. Wal-Mart even failed to provide a mechanism by which an employee could express interest in most promotions. Wal-Mart did not post job vacancies for nearly all promotions at issue in this case.2 ER 1153. As the district court found, “Because most positions were not posted, class members had no ability to apply for, or otherwise formally express their interest in, openings as they arose.” Id.
Because Wal-Mart neither required nor permitted employees to show an interest in most promotions, the district court’s approach would provide no relief for those class members who have suffered the greatest injury. For almost the entire liability period, no applications for management promotions exist because Wal-Mart had no process within which to apply. Those women who were denied
2 As Wal-Mart’s Senior Vice President Charlyn Jarrells-Porter candidly admitted in a June 2002 e-mail, Wal-Mart “[does] not have a poster, brochure, nothing that I am aware of” to inform hourly workers “how to get promoted into the management training program.” ER 1152.
6

promotions under this indefensible system will not be entitled to back pay relief, solely because of the way Wal-Mart chose to structure its promotion process.3 The
district court’s approach therefore rewards Wal-Mart for employing a promotion system that creates the greatest chance for bias.4 The remedial purposes of Title
VII are hardly served by this regime.
Wal-Mart’s approach to Stage II promotion remedies ignores the “make
whole” requirement of Title VII. Indeed, nowhere does Wal-Mart even address
the Supreme Court’s mandate to “fashion the most complete relief possible” based
upon “the particular circumstances.” Albemarle, 422 U.S. at 421.
III. Wal-Mart Has No Statutory or Due Process Right to Individualized Hearings at Stage II
A. Title VII Contains No Requirement that Interest in Promotions Be Demonstrated in All Cases
Wal-Mart erroneously asserts that plaintiffs must demonstrate interest in
promotion as a mandatory element of proof required by Title VII. Reply at 57.
Yet Title VII permits, and even encourages, courts to adjust the proof required to
3 The district court’s approach would permit the award of back pay only to women who applied for management trainee positions after January 2003, when Wal-Mart first began to post management trainee vacancies, more than four years after the commencement of the liability period.
4 As discussed in Plaintiffs’ Opening at 14, 27 n.12, subjectivity – including lack of a formal application system – is conducive to discrimination.
7

the circumstances of each case. While Title VII prohibits discrimination in promotions, it does not specify the elements of proof required to establish liability or the right to relief. The statute plainly recognizes that discrimination may be proved by the alternative analytical models of disparate impact and disparate treatment, each of which has different elements of proof. Nothing in the statute requires proof of interest. See 42 U.S.C. § 2000e-2, et. seq.
Moreover, the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973), established the basic paradigm for proving intentional discrimination, but cautioned that its application must not “be rigid, mechanized or ritualistic.” The Supreme Court has applied the same flexibility to class actions. In recognizing that the McDonnell Douglas formulation had to be adjusted to the proof of pattern or practice claims, the Court explained that “the importance of McDonnell Douglas lies, not in its specification of the discrete elements of proof there required, but in its recognition of the general principle that any Title VII plaintiff must carry the initial burden [of proof].” Teamsters, 431 U.S. at 358.
Consistent with these principles, this Court has relieved plaintiffs of any obligation to show that they applied for an available position where the employer failed to post the job opening or the promotion process was initiated by the employer, not the employee. See, e.g., Reed v. Lockheed, 613 F.2d 757, 761 (9th
8

Cir. 1980). Indeed, appellate courts have held in such cases that a plaintiff need not demonstrate interest in a job opening to establish a prima facie case. Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133-34 (11th Cir. 1984) (“when an employer uses such informal methods it has a duty to consider all those who might reasonably be interested” without requiring plaintiff to show interest). Contrary to Wal-Mart’s assertion, courts in class action cases have not required individualized showings of interest or application where the facts do not justify it. See infra at 14-16.
Wal-Mart’s promotion system warrants the flexible treatment of interest that Reed and Carmichael endorse. By choosing to operate a “tap-on-the-shoulder” system, Wal-Mart waived any requirement that could have otherwise been imposed to show contemporaneous interest in a promotion. The district court ruled that a class member need not show interest to be qualified for promotion. ER 1206-07. Wal-Mart’s mechanical invocation of the McDonnell Douglas paradigm does not warrant reversal of that determination.
B. Wal-Mart’s Due Process Interest in the Determination of its Aggregate Liability is Fully Accommodated in Stage I Proceedings
The method for determining back pay liability should afford relief, wherever possible, to victims of the proven discrimination and protect the parties’ right to an
9

accurate and fair determination of aggregate back pay. Thus, Wal-Mart’s due process interest is protected by selecting the most accurate method of calculating its total back pay exposure. See Connecticut v. Doehr, 501 U.S. 1, 11 (1991) (due process evaluated based upon the “risk of erroneous deprivation through the procedures under attack and the probable value of additional safeguards.”); Hilao v. Estate of Marcos, 103 F.3d 767, 786 (9th Cir. 1996); Pettway v. American Cast Iron Pipe Co. (Pettway V), 681 F.2d 1259, 1266 (11th Cir. 1982) (rejecting a due process challenge to a class-wide calculation of lost wages where “the amount found due to the class does not exceed the amount which all members of the class together would have been entitled to receive under a correct hypothesis.”).5
As the district court recognized, there is ample authority holding that in some circumstances a process which determines the total amount of back pay an employer owes to the class, and then allocates it among class members, is more accurate than individual hearings. ER 1199; Domingo v. New England Fish Co., 727 F.2d 1429, 1443-45 (9th Cir. 1984); Shipes v. Trinity Industries, 987 F.2d 311, 316 (5th Cir. 1993); Stewart v. Gen. Motors Corp., 542 F.2d 445, 452-53 (7th
5 Wal-Mart apparently acknowledges this point, but demands two bites of the apple. Reply at 39. It wants to dispute aggregate liability at Stage I and then be permitted to further attack that aggregate liability at Stage II, thus rendering the Stage I determination superfluous.
10

Cir. 1976); Hameed v. Int’l Ass’n of Bridge, Structural and Ornamental Iron Workers, 637 F.2d 506, 520 (8th Cir. 1980); Pitre v. Western Elec. Co., 843 F.2d 1262, 1274 (10th Cir. 1988); Pettway V, 681 F.2d 1259, 1266 (11th Cir. 1982); Segar v. Smith, 738 F.2d 1249, 1289-91 (D.C. Cir. 1984). The Equal Employment Opportunity Commission has also endorsed using formulaic approaches to back pay in appropriate cases. See Brief of the Equal Employment Opportunity Commission in Support of the Plaintiffs-Appellees, Beck v. The Boeing Co., No. 01-80241 (9th Cir.), SER 1048, 1058-59.6
Contrary to Wal-Mart’s complaint, it will not be denied an opportunity to prove that its back pay exposure should be reduced because women were less interested in promotions. As explained below, the only appropriate phase of the case in which to address such a defense is the first stage of the action – during which liability, aggregate back pay and punitive damages will be resolved – not during Stage II.
In Stage I of a Title VII class action, the finder of fact determines whether there is a pattern or practice of discrimination in promotions, and whether there
6 This Court may give deference to an opinion of the EEOC construing Title VII, as set forth in an amicus brief. Auer v. Robbins, 519 U.S. 452, 462 (1997); Jones v. American Postal Workers Union, 192 F.3d 417, 427 (4th Cir. 1999) (EEOC’s interpretation of Title VII in an amicus brief was entitled to Chevron deference).
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has been a disparate impact on the class. Teamsters, 431 U.S. at 336, 360; ER 1194-95. In reaching these issues, the finder of fact will determine the shortfall in promotions awarded to the class and the value of that shortfall in lost wages. WalMart will be permitted to adduce evidence, inter alia, that disparities in promotions were attributable to factors other than discrimination, such as superior qualifications or stronger interest in advancement among male employees. See Teamsters, 431 U.S. at 340-41, 360; Segar, 738 F.2d at 1268. Such evidence may consist of workforce statistical analyses, other expert studies, or other probative materials of general application. See, e.g., EEOC v. Sears, 628 F. Supp. 1264, 1305-15 (N.D. Ill. 1986) (considering evidence on interest and finding no liability); Stender v. Lucky Stores, 803 F. Supp. 259, 303-14, 325-29 (N.D. Cal. 1992) (admitting evidence on interest to rebut statistical evidence on disparate impact claim, but finding it failed to undermine plaintiffs’ liability showing). Plaintiffs, of course, may rebut any such showing.
Any consideration of interest must be based on a comparison of the relative levels of interest among similarly-situated men and women. It would not change the calculated shortfall to know that 30% of women were uninterested in promotion unless similar evidence showed that a significantly smaller percentage of men were uninterested in promotion. Individual hearings at which women were
12

asked about their interest in promotion would not provide the evidence needed to establish the relative levels of interest among men and women, since it would provide no information about the level of interest among similarly situated men. By contrast, evidence comparing the aggregate levels of interest for both men and women in Stage I contributes to an accurate calculation of the shortfall in promotions.
1. Workforce Data Will Yield a More Accurate Computation of Back Pay Owed by Wal-Mart Than Would Individual Class Member Hearings
The particular facts of this action strongly indicate that the determination of the promotion shortfall and corresponding calculation of back pay awardable to the class will ascertain Wal-Mart’s economic exposure more accurately than would individual relief hearings. Courts have identified specific circumstances where the computation of back pay through use of workforce data, rather than through individual hearings, is warranted. These include situations where: • promotions were based on unguided, subjective criteria, making it more
difficult to determine how a candidate would have been evaluated in the absence of discrimination; • discrimination has been pervasive and denial of lower level promotions or assignments prevented a class member from demonstrating qualifications
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for higher level promotions; • stated qualifications for positions at issue were minimal, making it harder to
determine which of the many qualified applicants would have been selected in the absence of discrimination; • the employer did not maintain records that could establish candidates’ qualifications or interest; or • many claimants would be vying for a relatively small number of openings, making determination of which candidate would have been selected for a particular vacancy very speculative. See Segar, 738 F.2d at 1290-91; EEOC v. Chicago Miniature Lamp Works, 640 F. Supp. 1291, 1299 (N.D. Ill. 1986); EEOC v. O & G Spring & Wire Forms Spec. Co., 38 F.3d 872, 879 n.9 (7th Cir. 1994); Stewart, 542 F.2d at 452; Domingo, 727 F.2d at 1444-45; Kraszewski v. State Farm Gen. Ins. Co., No. C-70-1261 TEH, 1986 WL 11746, *1 (N.D. Cal. July 17, 1986); Chewning v. Seamans, 26 F.E.P. 731, 732-33 (D.D.C. 1979). In these circumstances, the use of workforce data to compute aggregate monetary relief “has more basis in reality . . . than an individual-by-individual approach.” Pettway v. American Cast Iron Pipe Co. (Pettway III), 494 F.2d 211, 263 (5th Cir. 1974). All of these circumstances are present in this case and counsel in favor of computing back pay here through
14

analysis of workforce data. 2. Courts Endorsing the Use of Workforce Data to Determine Lost Earnings Have Not Required Individual Hearings
Wal-Mart contends that, even where workforce data has been used to compute lost earnings, courts have nonetheless required individual hearings to determine whether each class member was qualified for and interested in a promotion.
Contrary to Wal-Mart’s assertion, courts have endorsed the use of workforce data to compute back pay in promotion and hiring cases without requiring individualized hearings to establish either the qualifications or interest of class members before allowing them to share in the back pay. See, e.g., Segar, 738 F.2d at 1289-91; O & G Spring, 38 F.3d at 876; Chicago Miniature Lamp Works, 640 F. Supp. at 1298-1300 and 668 F. Supp. 1150, 1151, 1153 n.7 (N.D. Ill. 1987). The Fifth Circuit and later the Eleventh Circuit in Pettway twice ruled that individual eligibility hearings were unnecessary. See Pettway III, 494 F.2d at 263 & n.154, and Pettway V, 681 F.2d 1259. Pettway III ordered the trial court to consider a class-wide calculation which would “possibly eliminat[e] the necessity of deciding which one of many employees would have obtained the position but for discrimination.” Id. at 263 & n.154.
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Teamsters, on which Wal-Mart primarily relies to contend that individual hearings are always required, does not support that proposition. Teamsters held only that “a district court must usually conduct additional proceedings after the liability phase of the trial to determine the scope of individual relief.” Teamsters, 431 U.S. at 361. Nothing in Teamsters requires that those proceedings must be separate, adversarial hearings for each class member.
In addition, the Teamsters decision acknowledged that interest might be established without contested, individual proceedings under certain circumstances. In Teamsters, the government argued that expressing a current interest in the positions at issue should suffice as a proxy for interest at the time the vacancy existed. Teamsters, 431 U.S. at 370. While the Court rejected that position, it did so solely because of concern that class members granted relief would receive retroactive seniority, and thus protection against layoffs, which they would not have had at the time these vacancies were filled. Id. at 371. The Court identified the difference in the risk of layoff as its sole reason for finding current expressions of interest an inadequate proxy. The threat to the interests of innocent employees, which supported an individualized claims process in Teamsters, does not apply here where no seniority or instatement relief is sought.
Wal-Mart likewise reads too much into Domingo, 727 F.2d at 1443-45.
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There is no indication in that case that plaintiffs contested a Stage II interest requirement. Nevertheless, Domingo itself departed from the process described in Teamsters, recognizing the need to adapt Stage II procedures to the facts of that case.7 Plaintiffs’ Opening at 58.
C. Wal-Mart’s Proposed Individualized Stage II Process Ignores the Effect of Stage I Findings and Would Rely on Speculation
Wal-Mart insists that the only way to determine back pay for class members is through Stage II mini-trials. At these hearings, Wal-Mart wants to “introduce evidence that it selected one person over another for a promotion because of a difference in interpersonal skills, or leadership potential, or product knowledge, or commitment to customer service.” Reply at 37. Wal-Mart also insists that each class member would have to “prove up” interest, which it could contest. Id. at 57.
Wal-Mart’s approach fails for several reasons. Once Stage I liability is established, Wal-Mart cannot defend Stage II claims based on criteria which have been found illegal in Stage I. Moreover, Wal-Mart will also be precluded from relying on criteria that were not used at the time of the actual decision. Franks v. Bowman Transp. Co., Inc., 424 U.S. 747, 773 n.32 (1976) (limiting criteria upon which employer could rely in Stage II to “nondiscriminatory standards actually
7 Moreover, unlike this case, in both Teamsters and Domingo there was an actual application process. See Plaintiffs’ Opening at 57.
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applied by [employer] to individuals who were in fact hired”) (emphasis added). Further, given the absence of records, individual hearings to reconstruct
these decisions would be impermissibly permeated by post hoc speculation, and thus incompatible with due process. This failure of reliable proof could not be solved by having smaller class actions that adjudicate fewer decisions. Irrespective of the number of decisions at issue, the quagmire of hypotheticals is present in every one of these individual hearings.
1. Wal-Mart’s Defenses in Stage II Will Be Limited by the Stage I Liability Finding
Wal-Mart proposes to litigate the Stage II proceedings as if the Stage I liability determination had never occurred. But, as the Supreme Court explained in Teamsters, the “force of [Stage I] proof does not dissipate at the remedial phase.” Teamsters, 431 U.S. at 361-62. The issues that Wal-Mart proposes to argue at Stage II will already have been decided – and resolved against it – in the Stage I proceedings.
For example, Wal-Mart proposes to defend individual promotions decisions based upon precisely the kinds of unwritten, subjective promotion criteria (e.g. leadership potential) that plaintiffs claim were used to discriminate against female employees seeking promotion. Reply at 37. Should plaintiffs prove that Wal-
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Mart’s subjective promotion practices operated unlawfully at Stage I, then WalMart would be precluded at the remedial stage from relying on such criteria. See e.g. Teamsters, 431 U.S. at 362 (employer must show “lawful reason” for decision to deny relief to class member in Stage II); Hameed, 637 F.2d at 520 n.17 (criteria that have not been validated in liability phase cannot be used to justify a particular selection decision in Stage II); Baxter v. Savannah Sugar Ref. Corp., 495 F.2d 437, 444 (5th Cir. 1974) (Stage II could consider “only those qualifications possessed by white workers which are established by [employer] to be job related”).
Similarly, plaintiffs contend that Wal-Mart’s requirement that management candidates be willing to relocate their residence had an adverse effect on women. As plaintiffs’ sociologist noted, “the company’s practice of requiring relocation across stores for salaried managers, which generally creates a greater burden for women, makes the promotion process ‘especially vulnerable to gender stereotyping.’” ER 1161. If plaintiffs are successful in demonstrating that the policy was discriminatory, then Wal-Mart cannot offer an unwillingness to relocate or a lack of interest in a distant promotion as a defense to a promotion
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decision.8 Nor can Wal-Mart offer in defense of its promotion decisions factors that it
did not require at the time the selections were made. Having claimed that it seeks to reconstruct the actual process employed in making discrete promotion selections, Wal-Mart may not add requirements for promotion at Stage II hearings that it foreswore when the actual selections were made. Wal-Mart had no requirement that an employee express interest in promotion as a prerequisite to selection. Accordingly, it cannot now insist that plaintiffs demonstrate, one by one, that they harbored an interest in promotion at the time the vacancies occurred.
2. Because of Wal-Mart’s Practices, Individual Promotion Hearings Will Be Based on Rank Speculation
Wal-Mart’s insistence on individual hearings relies upon the premise that an adversarial hearing devoted to a single selection is more likely to yield the truth than workforce data maintained contemporaneously. Wal-Mart’s historical promotion practices have left little or no record from which to reconstruct the actual basis for any individual decision. Instead, managers, who oversaw thousands of employees over nearly a decade, would be left to rely more on
8 Wal-Mart’s store managers declarations, however flawed, confirm that the relocation requirement was a significant deterrent to women seeking management promotions. SER 754, 885; ER 395.
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conjecture and post hoc rationalization than upon evidence reflecting actual deliberations at the time. A simple example of one management trainee position in 1999 illustrates why such hearings would be pointless.
Any hourly employee within the district in which the opening occurred, who met the minimum non-discriminatory promotion guidelines, would be eligible for that promotion. Accordingly, hundreds, if not thousands, of employees could be considered for each opening. SER 969, 972-73, 975-76. In order to defend this single hypothetical training vacancy, Wal-Mart claims it would call “the relevant decision-maker(s) to testify regarding the actual basis for the decision(s) at issue.” Reply at 38. For selections into management trainee positions, the “relevant decision-makers” were individual District and Regional Managers. ER 1152. Each Wal-Mart District Manager manages six to eight stores; each store has a staff of 150-500 employees. ER 1208; SER 978, 1020. On any particular day, therefore, the District Manager has up to 4,000 hourly employees working in stores within his district. Given turnover and the length of the class period, if the mini-trial were held tomorrow, the District Manager who selected the candidate for the opening in 1999 could have had responsibility for 10,000 employees during
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the relevant time period.9 In justifying the selection of a hypothetical management trainee in 1999, the
District Manager would be expected to offer a rationale for: 1) the actual selection; and 2) non-discriminatory grounds for denying selection of likely many members of the class, who worked within the same district and possessed the requisite qualifications. Lacking any record of applications or record of grounds for selection, and having utilized no selection pool, the District Manager would have to depend on a memory of this event in order to offer a factual basis for the promotion decision. He would then have to speculate how the male actually selected would compare with any number of class members challenging that selection. The District Manager would, however, have been familiar with only a small fraction of the 10,000 hourly employees under his supervision. It is very unlikely that he would have knowledge or memory of specific work performance at the time sufficient to differentiate among the many candidates in the hypothetical pool.
The uncertainty of this process is particularly acute for class members who
9 The lack of familiarity with individual employees would be magnified ten fold for regional managers who supervise 80-85 stores at a time, or roughly 12,000-42,500 employees. ER 1147. Over the liability period, a Regional Manager could manage 100,000-200,000 employees.
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were denied selection into entry level management positions, but who would likely have risen further in the ranks in a non-discriminatory system.10 Their most significant back pay loss would be attributable not to the denial of the entry level position but from earnings lost in higher-level promotions. As a result of discrimination at the entry point, these women have no actual performance history in management positions to compare with that of the successful male candidates for these higher level management promotions. Class members would be at a significant disadvantage in a comparison of qualifications because of the discriminatory selection system, and the effort to reconstruct their career paths and hypothetical work histories would ultimately be sheer conjecture.11
Testimony about “interest” from class members would involve conjecture, and the rejoinder from Wal-Mart would be sheer speculation. Class members, under Wal-Mart’s approach, would be required to prove that they would have been interested in a promotion in a system that never existed. The question is not
10 Management training lasts four to five months and is “a limbo phase between hourly and salaried ranks, although they are paid on an hourly basis.” ER 1148. Support manager positions are likewise hourly positions which are “considered a feeder into the Management Trainee positions.” Id.
11 The absence of documentation and reliable memory would similarly undermine the integrity of individual hearings on the hundreds of thousands of pay decisions made over the past several years.
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whether plaintiffs would have applied under the current promotion system, but whether they would have been interested, some time in the past, in a promotion in a non-discriminatory system. Such a neutral system would include open posting of vacancies and would not include a mandatory relocation requirement, managers actively discouraging women from seeking promotion, or selection decisions based upon subjective criteria not shown to be job related. Since the majority of challenged selections were into entry level positions, class members would then have to speculate whether they would have had an interest in higher management positions thereafter, without any experience actually working in management to guide their decision.
While class members might have some basis to hypothesize about their intentions in a past that never existed, Wal-Mart’s rebuttal would be pure speculation. Reply at 57 (“Wal-Mart’s defense would be...to contest the alleged showings of interest....”). Since Wal-Mart made promotions without ascertaining or recording candidate interest, management could offer little more than their assumptions about class member interest in a working environment free from discrimination. The inquiry about class member interest, conducted individual by individual, would pit a plaintiff’s conjecture against her manager’s assumptions and stereotypes, hardly a process that would more reliably lead to the truth than
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the process that plaintiffs propose. To the contrary, such a process is likely simply
to replicate the subjective, discriminatory practices it is supposed to remedy.12
Nothing about the quality of the available evidence improves if the hearings
are conducted in smaller class actions, as Wal-Mart argues. A Stage II class
limited to a particular store or district would require the use of the same
hypothetical testimony reconstructing interest and qualifications in a non-
discriminatory process as would a national class. In the hypothetical trainee
opening discussed above, there were hundreds of possible candidates for just one
promotion decision. These problems of proof, moreover, are entirely the result of
Wal-Mart’s practices and not the result of certifying a nation-wide class action.
The conduct of thousands of hearings simply to permit Wal-Mart to offer
speculation and post hoc rationales for promotions that it chose not to post, or
12 To support its claim that women turned down promotions, Wal-Mart asserts that plaintiff Kwapnoski rejected an offered promotion because of her “personal circumstances.” Reply at 57. Wal-Mart has its facts wrong but, more importantly, this incident with Ms. Kwapnoski perfectly illustrates the problems created by Wal-Mart’s subjective promotion system. Plaintiff Kwapnoski did not reject an offer of promotion, as Wal-Mart suggests, but rejected a lateral move from receiving manager to front end manager. SER 1073. The District Manager claimed she should have experience as front end manager before she could be promoted into the management training program. Id. In fact, no such experience requirement existed. Id. When there are no established criteria for promotion, managers can, with impunity, erect whatever hurdles they choose to prevent women from advancing.
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decisions it chose not to document, can only undermine due process rights. D. At Stage II, Court in Equity May Use Any Reasonable Method of Allocation Once the aggregate of lost wages has been determined, the court – sitting in
equity – may use any reasonable method to allocate monetary relief among class members. Segar, 738 F.2d at 1292-1293. Because no method of allocation will be perfect, the district court may choose any equitable method, so long as it will achieve a just result. Id. Courts have long recognized that calculations of lost pay are invariably inexact to some degree. Courts nonetheless have a duty to make those awards, because an imperfect award is better justice for victims of discrimination than no award at all. Shipes, 987 F.2d at 316 (“unrealistic exactitude is not required and all doubts should be resolved against the discriminating employer.”); Domingo, 727 F.2d at 1445.
While such a method may generate a windfall for some employees who would have never been promoted had vacancies been filled on a nonracial basis and undercompensate the genuine victims of discrimination by forcing them to share the award with their undeserving brethren, it is the best that can be done under the circumstances. . . . Given a choice between no compensation for black employees who have been illegally denied promotions and an approximate measure of damages, we choose the latter. Stewart, 542 F.2d at 452-53. Wal-Mart repeatedly maligns the district court’s use of the term “rough
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justice,” implying that the court would force Wal-Mart to pay lost wages based on an arbitrary assessment of its back pay liability. Reply at 46, 58. Wal-Mart again mischaracterizes the court’s opinion. The district court used the phrase “rough justice,” to refer to the justice among class members in distributing the total sum, not to the determination of the total amount Wal-Mart must pay. ER 1201. Specifically, the district court cited two cases in which aggregate back pay was spread over a much larger number of class members than available positions. See O & G Spring, 38 F. 3d at 879; Hameed, 637 F. 2d at 519-20. The court recognized the self-evident principle that, among class members, “‘rough justice’ is better than the alternative of no remedy at all for any class member.” ER 1201.
The district court has broad discretion to decide which method it uses to allocate back pay. Segar, 738 F.2d at 1292-1293; Pettway III, 494 F.2d at 262-63; Domingo, 727 F.2d at 1444-45. In this case, there are manageable and equitable ways to discern which class members should receive a share of the relief and how much each should receive. The court could require class members to file verified claim forms to establish eligibility. The court could use Wal-Mart’s database, or other documentary evidence, to compare potential victims to the men actually promoted and limit eligibility for relief to those class members with comparable or superior qualifications. Though these methods may be imperfect, Wal-Mart has
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no basis to claim that class members would not prefer “rough justice” to no justice at all. IV. Wal-Mart’s Belated Attempt to Raise Commonality Arguments Against
the Certification of Promotion Claims Should be Rejected In its opening brief, Wal-Mart did not contest the district court’s certification of the class promotion claims, focusing its argument solely on the certification of pay claims. Plaintiffs’ Opening at 20 n.6. In a footnote in its reply, Wal-Mart asserts that it “now disputes on appeal, every aspect of plaintiffs’ class certification evidence.” Reply at 30, n.12. By failing to raise a specific challenge to the certification of the promotion claims in its opening brief, WalMart has waived this claim. Confederated Tribes of Umatilla Indian Reservation v. Bonneville Power Authority, 342 F.3d 924, 933 (9th Cir. 2003) (argument raised in footnote in reply brief, rather than principal brief, will not be considered); Hilao, 103 F.3d at 778 n.4 (same). Even if considered, Wal-Mart’s eleventh-hour challenge fails. Wal-Mart asserts that its promotion decisions are “made in a highly decentralized manner” and thus cannot satisfy Rule 23(a) commonality. Reply at 7.13 Wal-Mart’s in-store promotion decisions are not highly decentralized and it
13 Wal-Mart suggests that plaintiffs themselves argued below that its promotion processes were highly decentralized and that plaintiffs have “reversed
28

cites no admissible evidence to support that contention. To the contrary, the
evidence submitted below is that Wal-Mart has uniform national policies and
practices that govern in-store promotions and that these policies and practices
have systematically disadvantaged female employees in every region of the
country.
All salaried management promotions at issue here were made by, or in
conjunction with, Home Office-based managers.14 These centralized decision-
makers use Wal-Mart’s uniform minimum requirements for promotion into in-
store management positions. ER 1152. The corporate guidelines also require that
a candidate be on the company’s “Rising Star” list. Wal-Mart posted the names of
store employees designated “Rising Stars” on the “Rising Star Wall” in the
course” on appeal, now claiming that Wal-Mart has highly centralized promotion policies. Reply at 6. To make this argument, Wal-Mart wrongly conflates plaintiffs’ contention that promotion decisions are largely subjective – a contention plaintiffs do make – with the claim that promotion decisions are highly decentralized, a contention that plaintiffs have never made.
14 The district court found that “[d]ecisions regarding advancement into the Management Training Program are made by District and Regional Managers.” ER 1152. Regional Vice Presidents, also known as Regional Managers, are based in the Home Office as are Regional Personnel Managers. SER 979-981. The same District and Regional Managers fill openings for Assistant Manager and CoManager. SER 983-91. For store manager vacancies, Regional Vice Presidents are responsible for selections, with input from District Managers and Regional Personnel Managers. SER 992-99, 1001-02. Openings for hourly support manager positions are filled by store managers, based in the field. ER 1152.
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Bentonville Home Office. These pre-selected “Stars” were given priority for promotion. SER 1003-18. This undisputed record of Home Office oversight and control of in-store management promotions entirely refutes Wal-Mart’s decentralization claim.
Wal-Mart’s challenge to the promotion statistics is limited to a string citation to pages from its expert’s declaration, which is insufficient to resurrect the issue on appeal. Reply at 30 n.12; Confederated Tribes, 342 F.3d at 933. In any event, the statistical evidence, upon which the district court relied, fully supports its ruling. Within Wal-Mart’s workforce, women make up 65% of hourly employees, but only 33% of management. ER 1148. Plaintiffs’ statistician, analyzing Wal-Mart’s own data, demonstrated a statistically significant shortfall of women promoted into each of the in-store management classifications; this pattern was consistent in nearly every geographic region. ER 1173.15 On average, women took longer than men to be promoted to management positions, a fact undisputed by Wal-Mart. ER 1174. Plaintiffs’ labor economist found that, in comparison to its competitors, Wal-Mart had significant shortfalls in female managers in 79.5%
15 Plaintiffs’ statistical expert found the overall shortfalls amounted to many thousands of promotions denied to the class. ER 193 - 196 (shortfall of 2891 support managers, 2952 management trainees, 346 co-managers, 155 store managers). Plaintiffs’ labor economist also found large promotion shortfalls (shortfall of 4004 to 5465 managers). SER 30-31.
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of its stores. ER 1179. The district court fully considered Wal-Mart’s attack on plaintiffs’ statistical
evidence. Wal-Mart’s principal claim was that plaintiffs’ analyses should have relied upon “actual applicant flow data.” ER 1174. The court rejected this argument, finding that such data was woefully incomplete for promotions challenged by the class.16 Given the incomplete posting data, the court concluded that the methodology that plaintiffs’ expert used was reasonable. ER 1174-78.
Even if timely raised, Wal-Mart’s challenge to the underlying certification of promotion claims fails. The district court’s findings, which are reviewed for abuse of discretion, were fully supported by the evidentiary record and should be affirmed.
CONCLUSION The district court’s certification of class-wide promotion claims should be affirmed, but its limitation of back pay relief to the subset of class members for whom Wal-Mart maintained application data should be reversed.
16 There was no application data for management trainee positions. For other positions below store manager, the postings covered from 1% to 20% of vacancies. ER 1153, 1175-76.
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Respectfully submitted,

__________________________ Christine E. Webber Joseph M. Sellers Julie Goldsmith Reiser COHEN, MILSTEIN, HAUSFELD
& TOLL, PLLC 1100 New York Ave., #500 Washington, DC 20005-3964 Telephone: (202) 408-4600 Facsimile: (202) 408-4699
Counsel for Appellees and Cross-Appellants

________________________ Jocelyn D. Larkin Brad Seligman THE IMPACT FUND 125 University Avenue Berkeley, CA 94710 Telephone: (510) 845-3473 Facsimile: (510) 845-3654

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CERTIFICATE OF COMPLIANCE PURSUANT WITH FEDERAL RULE OF APPELLATE PROCEDURE 32(a)
This brief complies with the typeface requirement of Fed. R. App. P. 32(a)(7)(B) because it contains 6994 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionately spaced typeface using WordPerfect 10 in 14point font size and Times New Roman type style.
_________________________________ Brad Seligman Counsel of Record THE IMPACT FUND 125 University Avenue Berkeley, CA 94710-1616 (510) 845-3473 Attorneys for Plaintiffs-Appellees and Cross-Appellants

PROOF OF SERVICE
I hereby certify that on this 11th day of February, 2005, I caused two copies of the reply brief for appellees and cross-appellants and one copy of further Supplemental Excerpts of Record to be served by UPS, overnight delivery, with a courtesy copy of the foregoing brief by electronic delivery, to:

Paul Grossman Nancy L. Abell PAUL, HASTINGS, JANOFSKY & WALKER LLP 515 South Flower Street Los Angeles, CA 90071 Telephone: (213)683-6000 Facsimile: (213)627-0705 paulgrossman@paulhastings.com

Theodore J. Boutrous, Jr. Gail E.Lees Mary A. Perry GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071 Telephone: (213)229-7000 Facsimile: (213)229-7520 tboutrous@gibsondunn.com

___________________________ Christine E. Webber

 
 Case: 04-16688 03/09/2009 Page: 1 of 28 ID: 6837944 DktEntry: 209

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Nos. 04-16688 & 04-16720
BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, DEBORAH GUNTER, KAREN WILLIAMSON, CHRISTINE KWAPNOSKI, and EDITH ARANA Plaintiffs/Appellees/Cross-Appellants,
v.
WAL-MART STORES, INC. Defendant/Appellant/Cross-Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF AMICI CURIAE OF AARP AND THE CALIFORNIA WOMEN’S LAW CENTER (CWLC) IN SUPPORT OF APPELLEES
AND CROSS-APPELLANTS SUPPORTING REVERSAL OF THAT PART OF THE DISTRICT COURT’S CLASS CERTIFICATION ORDER LIMITING BACK PAY RELIEF FOR PROMOTION CLAIMS

VICKY L. BARKER (SBN 119520) LEGAL DIRECTOR CALIFORNIA WOMEN’S LAW CENTER 3460 Wilshire Blvd. Suite 1102 Los Angeles, CA 90010 (323) 951-1041

DANIEL B. KOHRMAN Counsel of Record AARP FOUNDATION LITIGATION
MELVIN RADOWITZ AARP
601 E Street, NW Washington, DC 20049 (202) 434-2060

Attorneys for Amici Curiae AARP and the California Women’s Law Center

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CORPORATE DISCLOSURE STATEMENT AARP is a non-partisan, non-profit membership organization, which is taxexempt under section 501(c)(4) of the Internal Revenue Code, dedicated to addressing the needs and interests of older Americans. AARP neither has a parent corporation, nor has it issued shares or securities.
Respectfully submitted, ____________________________ Daniel B. Kohrman Senior Attorney AARP Foundation Litigation Counsel for Amici Curiae AARP and CWLC
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TABLE OF CONTENTS CORPORATE DISCLOSURE STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. BACK PAY AWARDS SHOULD BE DENIED ONLY IN
EXTRAORDINARY CIRCUMSTANCES NOT APPLICABLE HERE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 II. IT IS INCUMBENT UPON THE DISTRICT COURT TO FASHION A WORKABLE MEANS OF DISTRIBUTING A BACK PAY AWARD AMONG HARMED CLASS MEMBERS . . . . . . . . . . . . . . . . . . . . . . . . . . 8 III. THE DISTRICT COURT’S MANAGEABILITY CONCERNS DO NOT JUSTIFY DENIAL OF AN AWARD OF CLASS-WIDE BACK PAY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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TABLE OF AUTHORITIES FEDERAL CASES
Ablemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . . . . . . . . . . . . . . . . 4, 5, 12 Allison v. Citgo Petroleum Co., 151 F.3d 402 (5th Cir. 1998) . . . . . . . . . . . . . . . . 4 Barnett v. W.T. Grant Co., 518 F.2d 543 (4th Cir. 1975) . . . . . . . . . . . . . . . . . . . 7 Bouman v. Block, 940 F.2d 1211 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Califano v. Yamasaki, 442 U.S. 682 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir. 1984) . . . . . . . 7 Carnegie v. Household International, Inc., 376 F.2d 656 (7th Cir. 2004) . . . . . 17 Catlett v. Missouri Highway and Transport Commission,
828 F.2d 1260 (8th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) . . . . . 9, 10, 15 Dothard v. Rawlinson, 433 U.S. 321 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Dukes, et al. v. Wal-Mart Stores, Inc.
222 F.R.D. at 137 (U.S.D.C. N.D. Cal. 2004) . . . . . . . . . . . . . . . . . . . passim EEOC v. Andrew Corp., 1990 U.S. Dist. LEXIS 7760
(N.D. Ill. June 26, 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7 EEOC v. Chicago Miniature Lamp Works,
640 F. Supp. 1291 (N.D. Ill. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 EEOC v. Metal Serv. Co., 892 F.2d 341 (3d Cir. 1990) . . . . . . . . . . . . . . . . . . . . . 7
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EEOC v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
EEOC v. Rath Packing Co., 787 F.2d 318 (8th Cir. 1986) . . . . . . . . . . . . . . . . . 11 Elliot v. Weinberger, 564 F.2d 1219 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . 16 Franks v. Bowman, 424 U.S. 747 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Grant v. Ellis, 635 F.2d 1007 (2d Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Griggs v. Duke Power Co., 401 U.S. 424 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . 12 In re Thermagenics Corp. Security Litigation,
205 F.R.D. 687 (N.D. Ga. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 International Brotherhood of Teamsters v. United States,
431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9, 15 Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Cir. 1980) . . . . . . . . . . . . . . . . 6 Klay v. Humana, Inc., 382 F.2d 1241 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 16 Liberales v. County of Cook, 709 F.2d 1122 (7th Cir. 1983) . . . . . . . . . . . . . . . . 10 Long v. Trans World Airlines, Inc., 761 F. Supp. 1320 (N.D. Ill. 1991) . . 9, 12, 13 Myers v. Gilman Paper Co., 527 F. Supp. 647 (S.D. Ga. 1981) . . . . . . . . . . . . . 15 Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) . . . passim Pitre v. Western Electric Co., 843 F.2d 1262 (10th Cir. 1988) . . . . . . . . . . . . . . . 9 Pruitt v. Allied Chemical Corp., 85 F.R.D. 100 (E.D. Va. 1980) . . . . . . . . . . . . 16 Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . 10, 15
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Shipes v. Trinity Industrial, 987 F.2d 311 (5th Cir. 1993) . . . . . . . . . . . . . 9, 12, 13 Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976) . . . . . . . . . passim
STATE CASE Bell v. Farmers Insurance Exchange, 115 Cal. App. 4th 715 (2004) . . . . . . . . . 12
STATUTES Age Discrimination in Employment Act (ADEA), . . . . . . . . . . . . . . . . . . . passim
29 U.S.C. § 621, et seq. Title VII of the Civil Rights Act of 1964, . . . . . . . . . . . . . . . . . . . . . . . . . . passim
42 U.S.C. § 2000e, et seq.
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INTEREST OF AMICI CURIAE1/ AARP is a nonprofit, nonpartisan membership organization of more than forty million people age 50 or older that is dedicated to addressing the needs and interests of older persons. One of AARP's primary objectives is to achieve dignity and equality in the work place through positive attitudes, practices, and policies regarding work and retirement. Through its research, publications, and training programs, AARP seeks to eliminate ageist stereotypes, encourage employers to hire and to retain older workers, and help older workers overcome the obstacles they encounter because of age. AARP supports the rights of older workers and the public policies designed to protect their rights and to preserve the legal means to enforce them. More than half of AARP's members remain active in the work force and most are protected by federal laws prohibiting employment discrimination, such as Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA), which was modeled on Title VII. Consequently, the proper interpretation and application of these statutes, especially in the context of class or collective actions, are of paramount importance to the millions of workers,
1/ All parties have consented to the filing of this brief.

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including older workers, who rely on them to root out, remedy, and deter invidious bias in the work place.
The California Women's Law Center (CWLC) is a private, nonprofit public interest law center specializing in the civil rights of women and girls. CWLC, established in 1989, works in the following priority areas: Sex Discrimination, Women’s Health, Race and Gender, Women’s Economic Security, Exploitation of Women and Violence Against Women. Since its inception, CWLC has placed a strong emphasis on ensuring economic security for women and eradicating sex discrimination in employment. CWLC has authored numerous amicus briefs, articles, and legal education materials on these issues.
The availability of money damages in the form of a class-wide award of back pay is an important element in the congressional remedial and deterrent scheme embodied in Title VII and the ADEA. In this case, the district court’s ruling that an award of class-wide back pay is unavailable with respect to any unposted promotional opportunities threatens the protection afforded workers under Title VII, the ADEA and other federal civil rights laws. Such a ruling, if upheld, would serve to undermine the enforcement system designed by Congress to eliminate employment discrimination. AARP and CWLC file this brief amici curiae to urge this Court to adopt the panel decision reversing the decision of the
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court below on the issue of the availability of class-wide damages relief because of the wide-ranging and dangerous implications of that decision for cases challenging the most entrenched forms of employment discrimination.2/
SUMMARY OF ARGUMENT In limiting eligibility for back pay awards for promotion claims to only those members of the certified class “for whom objective applicant data exists,” Dukes, et al. v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 183 (U.S.D.C. N.D. Cal. 2004) the district court not only undermined the deterrent effect of class-wide damages relief, but also effectively precluded relief for those women who suffered most from WalMart’s pattern or practice of sex discrimination – those who were denied promotion by its tap-on-the-shoulder, word of mouth, excessively subjective system. In so doing the district court disregarded clear guidance both from the Congress and the courts. Further, the district court’s ruling that an award of classwide back pay is unavailable with respect to any unposted promotional opportunities because the determination of which class members are eligible to share in that award would be unmanageable, id., is erroneous and, therefore, cannot justify denial of class-wide damages relief.
2/ Amici support the remainder of the district court’s class certification order and urge that it be affirmed.
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I. BACK PAY AWARDS SHOULD BE DENIED ONLY IN EXTRAORDINARY CIRCUMSTANCES NOT APPLICABLE HERE. The importance of back pay as a “remedy central to achieving the purposes”
of Title VII cannot be overstated. Franks v. Bowman, 424 U.S. 747, 783 (1976) (Powell, J., concurring in part and dissenting in part); see also Ablemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). One of those purposes is, of course, “to make persons whole for injuries suffered on account of unlawful employment discrimination” – something that cannot be done in any case involving the discriminatory denial of a job or promotion absent an award of back pay. Ablemarle, 422 U.S. at 418; see also Allison v. Citgo Petroleum Co., 151 F.3d 402, 415 (5th Cir. 1998) (describing back pay as “an integral component of Title VII’s ‘make whole’ remedial scheme”).
As important as the make-whole objective is to the statutory scheme, however, the “the primary objective” of Title VII is the “prophylactic one” of “‘achiev[ing] equality of employment opportunities and remov[ing] barriers that have operated in the past to favor an identifiable group of white [male] employees over other employees.’” Ablemarle, 422 U.S. at 417 (quoting Griggs v. Duke Power Co., 401 U.S. 424, 429-30 (1971)). As the Supreme Court has explained, “back pay has an obvious connection with that purpose.” Id., 422 U.S. at 417. “If employers faced only the prospect of an injunctive order, they would have little
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incentive to shun practices of dubious legality. It is the reasonable certainty of a backpay award that ‘provide[s] the spur or catalyst which causes employers ... to eliminate, so far as possible, discriminatory practices.’” Id. at 417-18; see also Stewart v. General Motors Corp., 542 F.2d 445, 451 (7th Cir. 1976) (noting that absent availability of back pay, “there would be little incentive for employers to obey” Title VII, because “a recalcitrant employer could continue plainly discriminatory practices until compelled to stop by a federal court’s injunction without suffering any penalty for his blatant disregard of the law”).
Noting how vital the remedy of back pay is to achieving the purposes of Title VII, the Supreme Court has instructed that where a finding of unlawful discrimination is made, “backpay should be denied only for reasons which, if applied generally, would not frustrate” those purposes. Ablemarle, 422 U.S. at 421; accord Bouman v. Block, 940 F.2d 1211, 1234 (9th Cir. 1991). That mandate is no less applicable in the context of a class claim than of an individual one.
It is, therefore, “well settled that classwide back pay should be denied only in extraordinary circumstances.” Kirby v. Colony Furniture Co., 613 F.2d 696, 699 (8th Cir. 1980); accord Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 254 (5th Cir. 1974). Those special circumstances have been “narrowly construed, and usually include only circumstances where state legislation is in conflict with
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Title VII.” Stewart, 542 F.2d at 451; see also Pettway, 494 F.2d at 254; EEOC v. Andrew Corp., 1990 U.S. Dist. LEXIS 7760, at *2 (N.D. Ill. June 26, 1990).
Difficulties in determining which members of the class should receive back pay and the amounts they should receive do not constitute the kind of special factor that would justify the denial of any award. See, e.g., Kirby, 613 F.2d at 699; Stewart, 542 F.2d at 451. Such difficulties do not impact the aggregate amount that is owed to the class as a whole and have no bearing whatever on the extent to which a back pay award might advance Title VII’s prophylactic purpose of eradicating discrimination from the workplace. Furthermore, Title VII’s makewhole purpose is unquestionably better served by a class-wide back pay award than by disallowing back pay altogether – however imprecise the process of identifying eligibility for and amounts of awards. “Given a choice between no compensation for [female] employees who have been illegally denied promotions and an approximate measure of damages,” it was incumbent upon the district court to “choose the latter.” Stewart, 542 F.2d at 453. Unfortunately, the court below chose, instead, to deny compensation to those class members “where no objective applicant data exist.” 222 F.R.D. at 182.
If permitted to stand, that choice not only will leave large employers with little incentive to shun discriminatory practices, it will affirmatively encourage
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them to engage in practices that facilitate discriminatory conduct. The district
court denied the remedy of back pay only with respect to those promotional
opportunities that Wal-Mart allegedly chose to fill by tapping its preferred
candidates on the shoulder, rather than through a formal posting and bidding
process. The courts have repeatedly condemned such informal word-of-mouth
hiring methods because of their tendency to foster and perpetuate unlawful discrimination.3/ Yet the district court rewarded Wal-Mart for alleged suspect
promotional practices – and encouraged other large employers to engage in similar
practices – by holding that they make an award of back pay impractical. See, e.g.,
Andrew Corp., 1990 U.S. Dist. LEXIS 7760, at *4 (noting that to deny a remedy
where the employer’s “discriminatory recruitment policy” successfully blocked
applications from virtually everyone in the protected class would be to allow an
3/ EEOC v. Metal Serv. Co., 892 F.2d 341, 350 (3d Cir. 1990) (“informal, secretive and subjective hiring practices are suspect because they tend to facilitate the consideration of impermissible criteria” and, when used “in conjunction with an all white workforce,” such practices are themselves “strong circumstantial evidence of discrimination”); Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1133 (11th Cir. 1984) (recognizing that word-of-mouth hiring methods “can lead to racial discrimination”); Grant v. Ellis, 635 F.2d 1007, 1016 (2d Cir. 1980) (noting that denial of relief to those who did not apply for positions owing to word-ofmouth promotion procedures could result in exclusion of “victims of the most entrenched forms of discrimination”); Barnett v. W.T. Grant Co., 518 F.2d 543, 550 (4th Cir. 1975) (characterizing word-of-mouth hiring methods as “suspect because of their capacity for masking racial bias”).
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employer to “take advantage of an uncertainty caused by its own wrongdoing” and would “turn[] Title VII on its head”). II. IT IS INCUMBENT UPON THE DISTRICT COURT TO FASHION A
WORKABLE MEANS OF DISTRIBUTING A BACK PAY AWARD AMONG HARMED CLASS MEMBERS. In class cases involving allegations of systemic practices of employment discrimination such as this one, courts have traditionally employed two different approaches in determining how to calculate and distribute back pay to eligible members of the class. Under the approach exemplified by the Supreme Court’s seminal decision in International Brotherhood of Teamsters v. United States, 431 U.S. 324 (1977), the action is divided into two phases. The first of these is a liability phase at which plaintiffs seek to establish that the employer has engaged in a pattern or practice of intentional discrimination, that is, whether “discrimination was the employer’s standard operating procedure.” Id. at 360. If plaintiffs succeed in doing so, liability is established and no “further evidence” is needed to obtain class-wide injunctive relief. Id. at 361. The second phase of the Teamsters approach involves a series of individualized hearings at which class members are afforded an opportunity to establish their entitlement to back pay, front pay or other relief. During this remedial phase, each member need show only that he or she suffered an adverse
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employment decision “and therefore was a potential victim of the proved [pattern or practice of] discrimination. Id. at 362. If such a showing is made, the class member is entitled to individual relief unless the defendant can establish that it had a legitimate non-discriminatory reason for the adverse employment decision. Id.
As desirable as it may be to calculate and distribute back pay and other forms of monetary relief on a case-by-case basis under the Teamsters model, courts recognize that in certain circumstances such an individualized approach may be impractical. For instance, where the class size is large, the promotion or hiring practices are ambiguous, or the illegal practices have continued over an extended period of time, any attempt to identify the class member who would have obtained each position absent discrimination would “‘call[] forth [a] quagmire of hypothetical judgment’” and, hence, “‘a classwide approach to the measure of back-pay is necessitated.’” Domingo v. New England Fish Co., 727 F.2d 1429, 1444 (9th Cir. 1984) (quoting Pettway, 494 F.2d at 261); see also Shipes v. Trinity Indus., 987 F.2d 311, 318 (5th Cir. 1993); Pitre v. Western Elec. Co., 843 F.2d 1262, 1274 (10th Cir. 1988); Catlett v. Missouri Highway and Transp. Comm’n, 828 F.2d 1260, 1267 (8th Cir. 1987). The failure to post promotional opportunities constitutes one of those ambiguous promotional practices that make individualized hearings impractical by making it “virtually impossible to determine which class
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members would have been promoted had there been no discrimination,” thereby necessitating “a formula approach to back pay.” Pitre, 843 F.2d at 1274-75; see also Domingo, 729 F.2d at 1444; Chicago Miniature Lamp Works, 640 F. Supp. at 1299. In such circumstances, courts dispense with individual Teamsters hearings and, instead, compute the aggregate amount of back pay that is owed to the class as a whole, which amount is, in turn, allocated among eligible members of the class on a pro rata basis. See, e.g., EEOC v. O & G Spring and Wire Forms Specialty Co., 38 F.3d 872, 880 (7th Cir. 1994); Segar v. Smith, 738 F.2d 1249, 1289 (D.C. Cir. 1984); Liberales v. County of Cook, 709 F.2d 1122, 1136 (7th Cir. 1983) Pettway, 681 F.2d at 1266; Long, 761 F. Supp. at 1324; Chicago Miniature Lamp Works, 640 F. Supp. at 1298-1300.
Given the subjective nature of Wal-Mart’s alleged promotion system and the size of the class both in absolute terms and in relation to the number of promotional vacancies at issue, the district court properly determined that “the traditional Teamsters mini-hearing approach is not feasible here” and that “this is precisely the kind of case in which ‘a class-wide approach to the measure of backpay is necessitated.’” 222 F.R.D. at 176 & 178 (quoting Domingo, 727 F.2d at 1444.) Accordingly, the district court held that back pay was available to all
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members of the class who had applied for posted promotional opportunities.4/ At
the same time, however, the district court held that as to all unposted promotional
opportunities a class-wide back pay award is unavailable because of the
impracticality of determining which members of the class would be eligible to
share in that award. 222 F.R.D. at 183.
To be sure, the district court would face a formidable task in determining
how a class-wide back pay award could best be distributed if Wal-Mart is found to
have engaged in a pattern or practice of unlawful discrimination at the liability
stage. On the one hand, distributing an award among all qualified class members
without seeking to identify which of them were interested in obtaining the
promotions at issue would raise equity concerns by giving undeserving members a
4/ In the process of reaching this conclusion, the district court remarked that the availability of objective applicant data would enable it “to identify those class members who would be eligible to participate in a lump sum back pay award, and to fashion a formula to calculate such an award.” 222 F.R.D. at 183. Given the district court’s ruling rejecting the use of applicant flow data in this case, amici do not believe that the district court was suggesting that such data is in any way necessary to the calculation of a lump sum back pay award in this case. To the extent, however, that the district court’s decision could be construed as making that suggestion, it is plainly wrong. see, e.g., Dothard v. Rawlinson, 433 U.S. 321, 330 (1977) (“the application process might itself not adequately reflect the actual potential applicant pool, since otherwise qualified people might be discouraged from applying because of a self-recognized inability to meet the very standards challenged as being discriminatory”); EEOC v. Rath Packing Co., 787 F.2d 318, 337 (8th Cir. 1986) (“Although applicant flow data is often the best indicator of the extent of an employer’s discrimination, this is not the case where persons have been deterred from applying because of the employer’s discriminatory practices.”).
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share of the award at the expense of those who were actually injured by WalMart’s discriminatory practices. On the other hand, attempting to identify precisely those who suffered actual injury would create severe manageability issues.
Called upon to strike an appropriate balance between these competing concerns, the district court instead threw up its hands, concluding that back pay relief is simply unavailable to many members of the certified class. It was not at liberty to do so. When it enacted Title VII, “the Congress took care to arm the courts with full equitable powers” and, in so doing, imposed upon them the “duty to render a decree which [would] so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Ablemarle, 422 U.S. at 418 (emphasis added).
In the event of a finding of class-wide liability, the district court would determine the total amount that the class should receive in back pay for unposted positions.5/ This award would further Title VII’s prophylactic objective of deterring future discrimination, regardless of how it is distributed. Because Wal-
5/ See, e.g., Pettway, 494 F.2d at 257 (“Once class-wide discrimination has been demonstrated to result in disproportional earnings, a class-wide decision that back pay is appropriate can be discerned without deciding which members of the class are entitled to what amounts.”); Long v. Trans World Airlines, Inc., 761 F. Supp. 1320, 1324-26 (N.D. Ill. 1991); EEOC v. Chicago Miniature Lamp Works, 640 F. Supp. 1291, 1300 (N.D. Ill. 1986).
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Mart would have no “significant, legitimate interest in which class members share in the formula award and which do not,” 222 F.R.D. at 179, n.49; see also Hilao v. Estate of Marcos, 103 F.3d 767, 786 (9th Cir. 1996); Long, 761 F. Supp. at 1327; Bell v. Farmers Ins. Exchange, 115 Cal.App.4th 715, 759 (2004), the district court could use its broad equitable powers to distribute relief among class members as fairly as practicable under the circumstances. “[A]bsolute precision” would be neither feasible nor required. Long, 761 F. Supp. at 1323; see also Shipes, 987 F.2d at 317 (“unrealistic exactitude is not required”); Stewart, 542 F.2d at 452 (same); Pettway, 491 F.2d at 260-61 (same).
Instead of precluding relief for those class members who suffered most from Wal-Mart’s discriminatory, word of mouth promotion system, the district court could balance the competing interests of equity and practicality in any of a number of ways without adopting either the extreme of pro rata payments to all class members or Teamsters hearings.6/ First the court could have narrowed the group entitled to awards based on objective data, such as characteristics of successful promotees, general performance information tenure at Wal-Mart, job title, full-time
6/ If it had to choose between the extremes, the district court should have operated on the presumption that all members of the class were interested in promotions and distributed the lump sum award among them on a pro rata basis.
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as opposed to part-time status, active as opposed to inactive status, and possibly other factors.
Even among this narrower group, it is not, as the district court stated, “selfevident here that every (or nearly every) class member in every feeder pool desired a promotion.” 222 F.R.D. at 181. Instead of opting for its draconian solution, the district court could have refined the group of awardees further without conducting Teamsters hearings. As the Fifth Circuit made clear in Pettway, the “maximum burden” that should be placed upon a class member where circumstances necessitate a class-wide approach to back pay is merely to require a “statement” of the positions he claims to have been denied as a result of discrimination and “evidence” of his qualifications for those positions. 681 F.2d at 1267-68. Similarly, in order to establish their eligibility to share in a class-wide award in this case, class members could be required to offer some evidence in support of their qualifications and interest in the positions at issue. Indicia of interest in advancement could be based on any number of contemporaneous sources, such as statements in performance reviews, applications for lower level positions, and exit interviews, for example. For current employees, even an application at this time for a posted management position could be used to infer past interest in promotions.
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Consistent with that requirement, the district court could have ordered that the award be distributed on a pro rata basis to any member of the class, as narrowed by any objective criteria, who filled out a proof-of-claim form swearing under penalty of perjury that she, in fact, did make efforts to obtain one or more of the promotions at issue, expressed her desire to obtain such promotions to her superiors or to third persons, sought other promotions at some time in the past, and/or held a “firm but unexpressed personal interest” in obtaining a promotion. Myers v. Gilman Paper Co., 527 F. Supp. 647, 656 (S.D. Ga. 1981); cf. Teamsters, 431 U.S. at 371, n.58 (noting that the district court may find “even [an employee’s] unexpressed desire credible and convincing” and, thus, sufficient to establish that an individual would have applied, but for the discriminatory system). While distributing an award on the basis of this type of evidence would necessarily “generate a windfall for some employees who would have never been promoted had vacancies been filled on a nonracial basis and undercompensate the genuine victims of discrimination by forcing them to share the award with their undeserving brethren,” the district court should have employed that method if, in fact, it were “the best that can be done under the circumstances.” Stewart, 542 F.2d at 453; see also Segar, 738 F.2d at 1291 (finding that a reading of Title VII which would require the denial of class-wide back pay “in order to account for the
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risk that a small number of undeserving individuals might receive” a windfall “cannot be squared with what the Supreme Court has told us about the nature of a court’s remedial authority under Title VII”). Such a result, however, is plainly preferable to one that would deny relief to a substantial portion of the class. III. THE DISTRICT COURT’S MANAGEABILITY CONCERNS DO
NOT JUSTIFY DENIAL OF AN AWARD OF CLASS-WIDE BACK PAY. While the processing of individual claim forms in this case might be a very time-consuming endeavor, it would hardly create the kind of insurmountable manageability problem that would justify the district court’s failure to certify the entire class as eligible for back pay relief. Indeed, the district court’s conclusion that manageability concerns preclude a lost pay remedy for part of the class certified under Rule 23(b)(2) in this case is in direct conflict with Elliot v. Weinberger, 564 F.2d 1219 (9th Cir. 1977), aff’d in part and rev’d in part on other grounds, Califano v. Yamasaki, 442 U.S. 682 (1979), wherein this Court squarely held that “Rule 23 makes manageability an issue important only in determining the propriety of certifying an action as a (b)(3), not a (b)(2), class action.” Id. at 1229. Moreover, even if Rule 23(b)(3)’s manageability requirement were applicable in the case of a Rule 23(b)(2) class action, the district court’s ruling with respect to that requirement reflects a fundamental misunderstanding of the law.
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The issue in the Rule 23(b)(3) context is “not whether the class action will create significant management problems, but . . . whether it will create more management problems than any of the alternatives.” Klay v. Humana, Inc., 382 F.2d 1241, 1273 (11th Cir. 2004); see also Pruitt v. Allied Chemical Corp., 85 F.R.D. 100, 115 (E.D. Va. 1980) (“The fact that the adjudication of a class action . . . would be burdensome . . . does not preclude (b)(3) class certification . . . unless the problems of manageability in a class action are found to be greater than, or the same as, those found in other available methods of adjudicating the proposed class claims.”).
Instead of comparing a class action with available alternatives as the law required it to do, the district court analyzed the manageability issue in a vacuum, concluding that the task of determining which members of the class would be eligible to share in a class-wide award would be unmanageable for no other reason than there are so many of them. As Judge Posner recently observed, however, the argument that the class should not be certified because there are hundreds of thousands of members “is no argument at all. The more claimants there are, the more likely a class action is to yield substantial economies in litigation.” Carnegie v. Household Int’l, Inc., 376 F.3d 656, 660-61 (7th Cir. 2004); see also In re Thermagenics Corp. Sec. Litig., 205 F.R.D. 687, 697 (N.D. Ga. 2002) (“Certification cannot be denied because the number of potential class members
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makes the proceeding complex or difficult.”). Moreover, to require the members of the class to seek relief in individual actions in this case would be to send them on a fool’s errand, for, as the district court itself found, establishing that they would have been hired absent discrimination by Wal-Mart would be “virtually impossible” in the circumstances of this case. 222 F.R.D. at 176-77. Accordingly, measured against the alternative of individual lawsuits, a class action is plainly the more manageable approach.
CONCLUSION For the reasons set forth herein, the district court’s ruling limiting eligibility for back pay on plaintiffs’ promotion claims to only those members of the certified class for whom objective applicant data exits was erroneous. By precluding back pay for those who suffered most, i.e., those employees who allegedly were deterred from seeking promotions or denied them by Wal-Mart’s word of mouth, tap-onthe-shoulder, excessively subjective system, the district court’s order undermines both the deterrent and remedial purposes of Title VII, the ADEA and other federal antidiscrimination laws. Neither do the district court’s manageability concerns justify denial of class-wide back pay. Therefore, this Court should affirm the panel decision reversing the district court’s order denying class-wide back pay relief. In all other respects the district court’s order should be affirmed.
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Respectfully submitted,
Daniel B. Kohrman Counsel of Record
AARP Foundation Litigation Melvin R. Radowitz AARP 601 E Street, NW Washington, DC 20049 (202) 434-2060 Vicky L. Barker (SBN 119520) Legal Director California Women’s Law Center 3460 Wilshire Blvd., Suite 1102 Los Angeles, CA 90010 (213) 637-9900 Attorneys for Amici Curiae AARP and the California Women’s Law Center
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CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. P. 32 (a)(7)(B) and 9th Cir. R. 32, I hereby certify the brief of Amici Curiae in Support of Appellees and Cross-Appellants was prepared in a proportionally spaced, Times New Roman typeface, using WordPerfect 12 and a font size of 14 points, and contains 3900 words.
Daniel B. Kohrman Counsel for Amici Curiae,
AARP and CWLC
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Case: 04-16688 03/09/2009 Page: 27 of 28 ID: 6837944 DktEntry: 209

CERTIFICATE OF FILING AND SERVICE

I hereby certify that I filed an original and 25 copies of the brief amici curiae of AARP and California Women’s Law Center in the case of Betty Dukes, et al. v. Wal-Mart Stores, Inc., U.S. Court of Appeals for the Ninth Circuit, Case Nos.0416688 & 04-16720, and also served two copies of the brief by First-Class mail on the following:

Joseph M. Sellers jsellers@cohenmilstein.com Christine E. Webber cwebber@cohenmilstein.com Julie Goldsmith Reiser Cohen, Milstein, Hausfeld & Toll, PLLC 1100 New York Avenue, #500 Washington, DC 20005-3964 (202) 408-4600

Brad Seligman Bseligman@impactfund.org Counsel of Record Jocelyn D. Larkin jlarkin@impactfund.org The Impact Fund 125 University Avenue Berkeley, CA 94710 (510) 845- 3473

Paul Grossman Paulgrossman@paulhastings.com Nancy L. Abell nancyabell@paulhastings.com Paul, Hastings, Janofsky &
Walker, LLP 515 South Flower Street Los Angeles, CA 90071 (213) 683-6000

Theodore J. Boutrous, Jr. Tboutrous@gibsondunn.com Gail E. Lees Glees@gibsondunn.com Mary A. Perry Mperry@gibsondunn.com Gibson, Dunn & Crutcher, LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000

Irma D. Herrera iherrera@equalrights.org Debra A. Smith dsmith@equalrights.org Equal Rights Advocates 1663 Mission Street, Suite 250 San Francisco, CA 94103 (415) 621-0672

Stephen Tinkler Set@tinklernm.com Tinkler Law Firm 309 Johnson Street Santa Fe, NM 87501 (505) 982-8533

Case: 04-16688 03/09/2009 Page: 28 of 28 ID: 6837944 DktEntry: 209

Debra Gardner gardnerd@publicjusticecenter.org Public Justice Center 1 North Charles Street, Suite 200 Baltimore, MD 21201 (410) 625-9409
Steve Stemerman stem@dcbsf.com Elizabeth A. Lawrence eal@dcbsf.com Davis, Cowell & Bowe, LLP 595 Market Street, Suite 1400 San Francisco, CA 94105 (415) 597-7200
Merit Bennett meritbennett@aol.com Merit Bennett, P.C. 460 St. Michaels Drive, Suite 703 Santa Fe, NM 87505 (505) 983-9834

Shauna Marshall Marshall@uchastings.edu Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 565-4685

Daniel B. Kohrman AARP Foundation Litigation Attorneys for Amici Curiae, AARP and CWLC

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 Nos. 04-16688 & 04-16720
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, DEBORAH GUNTER, KAREN WILLIAMSON, CHRISTINE KWAPNOSKI, and EDITH ARANA, Plaintiffs/Appellees/Cross-Appellants, vs. WAL-MART STORES, INC., Defendant/Appellant/Cross-Appellee.
On Appeal From The United States District Court For The Northern District Of California
BRIEF OF AMICI CURIAE CENTER FOR CONSTITUTIONAL RIGHTS, COMMUNITIES FOR A BETTER ENVIRONMENT, CONSUMERS UNION, NATIONAL CONSUMER LAW CENTER IN SUPPORT OF PLAINTIFFS/APPELLEES/CROSS-APPELLANTS DUKES, ET AL.

Gail Hillebrand Consumers Union 1535 Mission Street San Francisco, CA 94103 Telephone: (415) 431-6747 Facsimile: (415) 431-0906

Bill Lann Lee Jahan C. Sagafi Lieff, Cabraser, Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

Attorneys for Amici Curiae [Other Counsel Listed On Inside Cover]

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Nos. 04-16688 & 04-16720
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, DEBORAH GUNTER, KAREN WILLIAMSON, CHRISTINE KWAPNOSKI, and EDITH ARANA, Plaintiffs/Appellees/Cross-Appellants, vs. WAL-MART STORES, INC., Defendant/Appellant/Cross-Appellee.
On Appeal From The United States District Court For The Northern District Of California
BRIEF OF AMICI CURIAE CENTER FOR CONSTITUTIONAL RIGHTS, COMMUNITIES FOR A BETTER ENVIRONMENT, CONSUMERS UNION, NATIONAL CONSUMER LAW CENTER IN SUPPORT OF PLAINTIFFS/APPELLEES/CROSS-APPELLANTS DUKES, ET AL.

Gail Hillebrand Consumers Union 1535 Mission Street San Francisco, CA 94103 Telephone: (415) 431-6747 Facsimile: (415) 431-0906

Bill Lann Lee Jahan C. Sagafi Lieff, Cabraser, Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

368183.3

Adrienne Bloch Communities For A Better Environment 1611 Telegraph Avenue, Suite 450 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438

Jennie Green Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499

Stuart Rossman National Consumers Law Center 77 Summer Street, 10th floor Boston, MA 02110-1006 Telephone: (617) 542-8010 Facsimile: (617) 542-8028

Attorneys for Amici Curiae

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DISCLOSURE STATEMENT None of the amici has a parent corporation or stock that is owned by a publicly held corporation.
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I. INTRODUCTION All parties have consented to the filing of this brief.

The trial court found that Defendant-Appellant Wal-Mart’s

extraordinarily-detailed computerized employee records obviate the need for

further individualized proof of each class member’s potential equal pay and

punitive damages relief. See June 21, 2004 Order Granting in Part and Denying in

Part Motion for Class Certification (“Order”) at 69. Wal-Mart, however, contends

that the Due Process Clause gives it the absolute right to an individualized damage

hearing for each class member which, given the size of the class, would make the

proposed class action unmanageable. Wal-Mart Brf. 45-46. Wal-Mart’s

interpretation of the Due Process Clause is incorrect in principle and inconsistent

with courts’ long-standing reliance on aggregate techniques for calculating class-

wide damages in circumstances similar to those here.

Amici Curiae are public interest organizations that participate in

litigation to enforce federal rights in the areas of human rights, antitrust, securities,

consumer, and environmental law. If Wal-Mart’s contention is accepted, amici

believe that the effectiveness of class action enforcement in these areas as well as

employment discrimination would be severely impaired.

II. AMICI’S STATEMENTS OF INTEREST The Center for Constitutional Rights (“CCR”) is a non-profit legal and

educational organization dedicated to advancing and protecting the rights

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guaranteed by the United States Constitution and the Universal Declaration of

Human Rights. CCR has successfully litigated many important international

human rights cases since 1980, including Filartiga v. Pena-Irala, 630 F.2d 876 (2d

Cir. 1980), which established that the Alien Tort Claims Act grants federal courts

jurisdiction to hear cases seeking compensation and other relief for violations of

international law.

Consumers Union (“CU”), publisher of Consumer Reports, is a non-

profit organization that advances the interests of consumers by providing

information and advice about products and services and about issues affecting their

welfare, and by advocating a consumer point of view. CU’s income is derived

from the sale of Consumer Reports, its other publications and services, and from

noncommercial contributions, grants, and fees.

Communities for a Better Environment (“CBE”) is a California non-

profit environmental health and justice organization with approximately 20,000

members that seeks to protect and enhance the environment and public health by

reducing air and water pollution, and seeks to equip residents impacted by

industrial pollution with the tools to inform, monitor, and transform their

immediate environment in California's urban areas.

The National Consumer Law Center (“NCLC”) is a national, non-

profit research and advocacy organization focusing on the legal needs of

consumers, especially low income and elderly consumers. NCLC is recognized

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nationally as a preeminent expert in consumer credit legal analysis, and has drawn on this expertise to provide information, analysis and market insights to federal and state legislatures, administrative agencies and the courts for nearly 30 years. NCLC is author of the widely praised sixteen-volume Consumer Credit and Sales Legal Practice Series which includes Consumer Class Actions: A Practical Litigation Guide (5th Ed. 2002 and 2004 Supp.).
Each amicus represents individuals, or is concerned with the rights of individuals, who will be affected by the interpretation of the Due Process Clause as it bears on the availability of class action relief. Each amicus also has a strong interest in ensuring that individuals have access to the courts and to the remedies provided by Congress, often available only through class actions. III. THE DUE PROCESS CLAUSE PERMITS TRIAL COURTS THE
DISCRETION IN APPROPRIATE CASES TO RELY ON AGGREGATE PROOF OF DAMAGES WITHOUT THE NECESSITY FOR INDIVIDUALIZED HEARINGS.
Due process requires that a fair balance be struck between vindicating a plaintiff’s interest in obtaining a remedy, avoiding an erroneous deprivation of a defendant’s property, and “any ancillary interest the [Court] may have in providing the procedure or foregoing the added burden of providing greater protection.” Connecticut v. Doehr, 501 U.S. 1, 11 (1991) (applying balancing test enunciated in Matthews v. Eldridge, 424 U.S. 319 (1976) to private litigants); Hilao v. Estate of Marcos, 103 F.3d 767, 786-87 (9th Cir. 1996) (applying Doehr). Due process “is

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flexible and calls for such procedural protections as the particular situation

demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997) (citation omitted);

Newberg on Class Actions § 10:2 (4th ed. 2002).

This Court in Hilao applied the Doehr/Mathews balancing test to hold

that due process permits statistical sampling in calculating person injury and

wrongful death damages for a class of Filipino torture victims, whose injuries were

more varied than the purely economic injuries at issue here. 103 F.3d at 785-87;

see discussion of Hilao infra at IV.A; see also Michael J. Saks, Justice Improved:

The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass

Torts, 44 Stan. L. Rev. 815, 815 (1992) (aggregation can produce more precise

outcomes than case-by-case analysis).

In making its due process contention, Wal-Mart wholly ignores the

interest balancing engaged in by the trial court which appropriately gave great

weight to the comprehensive nature of Wal-Mart’s computerized employee records

that make possible the “extremely accurate” determination of the class’s losses

from discrimination. Order at 69-74. The risk of an erroneous deprivation of Wal-

Mart’s property violative of its constitutional due process rights is therefore

minimal. Wal-Mart has no legitimate argument against determination of economic

damages based on its own objective, business records.

Wal-Mart’s interest is “only in the total amount of damages for which

it will be liable,” not in how that sum is allocated among individual class members.

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Hilao, 103 F.3d at 786; see also Bell v. Farmers Ins. Exch., 115 Cal.App.4th 715,

759 (Cal. App. 2004); Newberg at § 10:5. On the other side of the balance, the

class has an enormous interest in obtaining redress. Hilao, 103 F.3d at 786; cf.

Story Parchment Co. v. Patterson Parchment Co., 282 U.S. 555, 563 (1931)

(where wrongful conduct “is of such a nature as to preclude the ascertainment of

the amount of damages with certainty, it would be a perversion of fundamental

principles of justice to deny all relief.”).

Moreover, aggregate techniques for calculating damages are critical

tools available to courts for the efficient resolution of disputes in appropriate

circumstances. Newberg at § 10:5. The fundamental purpose of federal class

actions is, after all, to promote the efficient enforcement of federal rights where

individual litigation is impracticable or too costly. See, e.g., Deposit Guaranty

Nat’l Bank v. Roper, 445 U.S. 326, 339 (1985) (class actions are an “evolutionary

response to the existence of injuries unremedied by [] regulatory action” where, if

left to file individual suits, “aggrieved person may be without redress”).

Due process, in short, gives trial courts the discretion to determine if

the record in a particular case, such as the instant action, permits reliance upon

aggregate techniques in calculating class member damages.

IV. AGGREGATE TECHNIQUES ARE COMMONLY USED TO CALCULATE CLASS-WIDE DAMAGES IN COMPARABLE CLASS ACTIONS.

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Wal-Mart’s due process arguments should be viewed through the lens - 5 -

of courts’ long-standing reliance on aggregated damage-calculation techniques in a variety of substantive areas of law. Accepting Wal-Mart’s sweeping due process argument will thus impede enforcement of important federal rights. Wal-Mart’s arguments should be rejected so that district courts may continue to exercise their discretion in the use of aggregate proofs of damage.
A. Human Rights Actions In Hilao, this Court approved statistical sampling as a means of
calculating individual damages on a class-wide, aggregate basis for thousands of Filipino victims of torture, summary execution, and/or “disappearance.” 103 F.3d at 782. Conducting individualized damages hearings, as those defendants argued for, was impossible because of the tremendous strain it would have placed on judicial time and resources. Id. at 786. In conducting the balancing required by the due process clause, this Court reasoned that even if “probabilistic prediction” of aggregate damages somewhat increases the “risk of error in comparison to adversarial adjudication of each claim,” that small increase was outweighed by plaintiffs’ substantial interest in obtaining a remedy.1

1 Calculating damages based on statistical sampling has been recognized in other types of cases as well. See, Bell, 115 Cal.App.4th at 759 (overtime compensation); Sav-on Drug Stores, Inc. v. Super. Ct., 17 Cal.Rptr.3d 906, 918 & n. 6, 923 & n.12 (Cal. 2004) (noting with approval the use of statistical sampling in Bell and aggregate techniques in other cases); see also In re Simon II Litig., 211 F.R.D. 86, 150-154 (E.D.N.Y. 2002) (authorizing statistical sampling in mass torts case) Avery v. State Farm Mut. Auto Ins. Co., 746 N.E.2d 1242, 1252-56 (Ill. App. 2001)

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The balance struck by the trial judge in this case is well within the
scope of this Court’s holding in Hilao. Judge Jenkins anticipated relying on a
well-accepted, formula analysis of all of Wal-Mart’s business records -- not a
sample -- to compute damages. Such a comprehensive aggregate approach is
appropriate in this case because individualized hearings would add little to the
accuracy of calculating damages.
B. Antitrust Actions It is a settled practice for courts in antitrust class actions to rely upon
class-wide aggregate techniques in calculating individual damages awards without
individualized hearings of class member claims.2 The Second Circuit stated that:
[I]f defendants' argument (that the requirement of individualized proof on the question of damages is in itself sufficient to preclude class treatment) were uncritically accepted, there would be little if any place for the class action device in the adjudication of antitrust claims. Such a result should not be and has not been readily embraced by the various courts confronted with the same argument. In re Visa, 280 F.3d 124, 140 (2d Cir. 2001) (quoting In re Alcoholic Beverages

(consumer fraud); Manual For Complex Litig. – Fourth Ed., § 11.493 (use of sampling acceptable in pretrial procedures).
2 See Newberg at §10:7 n.1 (citing numerous cases); see also In re Polypropylene Carpet Antitrust Litig., 996 F.Supp. 18, 29 (N.D. Ga. 1997) (aggregate proof of damages through econometric techniques is appropriate); In re Potash, 159 F.R.D. 682, 697 (D. Minn. 1995) (“the fact that the damages calculation may involve individualized analysis is not by itself sufficient to preclude certification when liability can be determined on a class-wide basis.”).

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Litig., 95 F.R.D. 321, 327-38 (E.D.N.Y. 1982) and citing other cases).3 In In re Visa, plaintiffs sought certification of a class of merchants and
trade associations harmed by Visa’s and MasterCard’s “tying arrangements” whereby merchants had only two options: accept all classes of Visa and MasterCard cards or none at all. Id. at 131. This policy forced merchants to accept a class of debit cards with higher per transaction fees than other types of Visa and MasterCard cards. Defendants argued that merchants had the ability to mitigate any damages relating to the higher debit card fee by “steering” any given customer to use other lower fee cards in his or her wallet, thus requiring individualized hearings on damages and rendering the case unmanageable as a class action. Id. at 137, 140. The Second Circuit affirmed the district court’s finding that damages could likely be calculated using a statistical formula, noting that the district court retained a range of tools to manage individual damages issues that might arise at later stages of the litigation. Id. at 141.4 Here, as in In re Visa, should subsequent

3 Wal-Mart was one of the named plaintiffs in this case, representing a class of approximately 5 million merchants. See Wal-Mart Stores, Inc. v. VISA USA, Inc., -F.3d --, 2005 WL 15056, *1 (2d Cir Jan. 4, 2005). Apparently Wal-Mart had no argument with the use of class-wide, aggregate techniques to determine individual damages when it itself was a plaintiff. The Second Circuit recently approved a $3 billion settlement in this case, the largest in the history of antitrust law. Id.
4 The court noted that the district court had “numerous management tools” at its disposal, including: 1) bifurcating liability and damage trials, 2) appointing a Special Master to preside over individual damages proceedings, 3) decertifying the

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proceedings make individual hearings appropriate, the trial court may modify its class certification.5
C. Securities Actions Courts routinely employ class-wide, formula-based techniques to
calculate individual damages in securities class actions. See Newberg at § 10:8. Class damage determinations generally require using complex statistical models such as the Proportional Trading Model and the Accelerated Trading Model, which yield aggregate damages amounts. These models take into account several factors, such as “[t]he transition probabilities that govern the rate(s) at which shares move from one class of shareholders to another,” and different investor classes’ “relative trading intensities.” John Finnerty & George Pushner, “An Improved Two-Trader Model for Measuring Damages in Securities Fraud Class Actions,” 8 Stan. J.L.

class after the liability phase, 4) creating subclasses, or 5) altering the class. Id. at 141.
5 Similarly, plaintiffs in In re Cardizem CD Antitrust Litigation, 200 F.R.D. 326, 348 (E.D. Mich. 2001), sought certification of a class of consumers and third-party health care benefit providers harmed by the defendants’ alleged agreement to delay the release of cheaper, generic competitors that the proposed class would have switched over to. Id. at 343. As did the court below in the instant case, the Cardizem court made sure the proposed class definition eliminated the need for individual proofs by excluding from the class individuals whose “brand loyalty” would have prevented them from switching over to the generic substitute. Id. at 343. The court went on to reject arguments that plaintiffs’ proposed methodology for aggregate damages calculation was imprecise because it relied on averaging, noting that a degree of imprecision is permitted in calculating aggregate damages, particularly when the methodology is offered in preliminary fashion, as here, as part of a class certification motion. Id. at 348.

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Bus. & Fin. 213, 218 (2003); id. at 230-31 (citing empirical studies showing “that investors trade the common stocks in their portfolios with different intensities,” statistical estimates of which impact damages determinations differently).6
Courts regularly approve judgments of aggregate damages awards based on class-wide statistical analyses in securities cases.7 Given the large numbers of class members often involved in securities class actions and the correspondingly large number of shares and transactions at issue, requiring individual proofs of damages would imperil enforcement of the nation’s laws against large-scale securities fraud; cf. Basic v. Levinson, 485 U.S. 224, 242 (1988) (approving “fraud-on-the-market” theory in order to prevent individualized proof of reliance from impairing class action enforcement of securities laws).

6 Statistical models are necessary the large volume of trades and the presence of “street name” trades (which obscure the identity of the security owner), makes precise individual damages determinations infeasible or impossible. Jon Koslow, “Estimating Aggregate Damages In Class-Action Litigation Under Rule 10b-5 For Purposes of Settlement,” 59 Fordham L. Rev. 811, 828 (1991). See also Michael Barclay & Frank C. Torchio, “A Comparison of Trading Models Used for Calculating Aggregate Damages in Securities Litigation,” 64 Law & Contemp. Probs. 105, 106 (2001).
7 See, e.g., Harmsen v. Smith, 693 F.2d 932, 945-46 (9th Cir. 1982) (aggregate damages need not be proved to a “mathematical certainty”); Van Gemert v. Boeing Co., 553 F.2d 812 (2d Cir. 1977) (approving aggregate damages judgment), aff’d 444 U.S. 472 (1980); In re Melridge, Inc. Sec. Litig., 837 F. Supp. 1076, 1080 (D. Or. 1993) (aggregate proof of damages by expert appropriate); see also In re Scorpion Tech., Inc. Sec. Litig., 1994 WL 774029, at *4 (N.D. Cal. Aug. 10, 1994) (individual issues regarding damages do not defeat class certification in a securities case); In re Activision Sec. Litig., 621 F. Supp. 415, 434 (N.D. Cal. 1985) (same).

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This Court has stated that in securities class actions, because “[t]he amount of damages is invariably an individual question[, it cannot] . . . defeat class action treatment.” Blackie v. Barrack, 524 F.2d 891, 905 (9th Cir. 1975) (affirming class certification). Moreover, denying class certification on manageability grounds because of individual damages issues creates an incentive for “corporations to commit grand acts of fraud.” In re Memorex Securities Litigation, 61 F.R.D. 88, 96 (N.D. Cal. 1973). In this case, denial of class certification for lack of manageability would similarly immunize Wal-Mart from Title VII challenges to large-scale discrimination merely because the class is large, a perverse consequence that Congress could not have intended.
D. Consumer Actions Courts have approved of aggregate techniques for computing class-
wide damages in numerous consumer class actions.8

8 See, e.g., In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) (insurance rates); Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32 (1st Cir. 2003) (cell phone charges); Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978) (credit card charges); Avery, 746 N.E.2d at 1252-56 (Ill. App. 2001) (failure to pay for original equipment manufacturer parts); Occidental Land, Inc. v. Super. Ct. of Orange County, 134 Cal. Rptr. 388, 393 (Cal. 1976) (developer fraud); see also Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) (stating, in a 17-million-member class action against banks and tax preparers for RICO violation that “Rule 23 allows district courts to devise imaginative solutions to problems created by . . . individual damages issues”); Cf. Klay v. Humana, Inc., 382 F.3d 1241, 1259-60 (11th Cir. 2004) (“Particularly where damages can by computed according to some formula, statistical analysis, or other easy or essentially

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In Smilow, the plaintiffs alleged that the defendant’s practice of charging customers for incoming cellular telephone calls constituted breach of contract and violation of various state and federal statutes. 323 F.3d at 34-35. The defendant argued that the district court erred in concluding that objective data regarding the plaintiffs’ loss could be extracted from defendant’s computer system and analyzed through a “mechanical process.” Id. at 40. The First Circuit credited the district court’s determination and stated that class certification should ordinarily not be denied because damages calculation issues arise. Id. at 40 n. 8.
In In re Monumental Life Ins. Co., the Fifth Circuit reversed denial of class certification and ordered the use of the plaintiffs’ proposed “standardized formulas or restitution grids to calculate individual class members' damages,” over defendants’ objection. Id. at 419. The Fifth Circuit relied on the fact that the relevant variables were objective, and that damages would “flow from liability in much the same manner that an award of backpay results from a finding of employment discrimination.” Id. at 419 (internal quotations and citations omitted).
As in Smilow and Monumental Life, Wal-Mart’s employment records allow mechanical application of a formula to objective evidence for damages determinations.

mechanical methods, the fact that damages must be calculated on an individual basis is not impediment to class certification.”).

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V. AWARDING PUNITIVE DAMAGES ON AN AGGREGATE BASIS IS CONSISTENT WITH DUE PROCESS. Contrary to Wal-Mart’s argument, State Farm Mut. Auto Ins. Co. v.
Campbell, Wal-Mart Brf. 47-48, does not warrant reversal. Campbell, by its own terms, is consistent with class-wide determination of punitive damages and itself suggests the solution of “inclusion” if all persons are impacted by the same course of reprehensible conduct. 538 U.S. 408, 421 (2003) (citing Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 821-22 (1985)). Inclusion is necessary because “[d]ue process does not permit courts, in the calculation of punitive damages, to adjudicate the merits of other parties’ hypothetical claims against a defendant.” Id. at 423 (emphasis added). Without inclusion, there would be risk of multiple punitive damage awards for the same incident because “in the usual case nonparties are not bound by the judgment other plaintiff obtains.” Id. In a Rule 23(b)(2) class action, such as the instant case, absent class members are included and are bound by the punitive damages judgment obtained by “some other plaintiff”, i.e., the class representative, on behalf of the entire class.
Indeed, class-wide, aggregate determination of punitive damages shields defendants from “expos[ure] to the risk of multiple punitive damages awards flowing from the same incident.” In re Exxon Valdez, 296 F. Supp. 2d 1071, 1091-92 (D. Alaska 2004); Fischer v. Johns-Manville Corp, 512 A.2d 466, 478 (N.J. 1986) (class actions are the “solution” to cumulative punitive damages

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awards); Elizabeth Cabraser, The Effect of State Farm v. Campbell on Punitive
Damages in Mass Torts and Class Action Litigation, SJ035 ALI-ABA 1163, 1165
(2004) (State Farm supports aggregation); Semra Mesulam, Collective Rewards
and Limited Punishment, 104 Colum. L. Rev. 1114, 1143-44 (2004) (proposing
punitive damage class as solution to multiple punishments problem). Numerous
individual suits against Wal-Mart in different courts, based on the same course of
discriminatory conduct makes cumulative punitive damages awards more likely.
See In re Exxon Valdez, 296 F. Supp. 2d at 1092. Such a result is contrary to the
Supreme Court’s holding in State Farm.
Calculating punitive damages on an aggregate basis therefore does not
violate Wal-Mart’s due process rights. Consistent with this principle, courts
regularly award punitive damages to class members on an aggregate basis in class actions.9
VI. CONCLUSION Calculating individual class member damages on the basis of class-
wide, aggregate proof without the necessity of individualized damage hearings is
consistent with due process where there is objective loss data that can be readily
9 See, e.g., Hilao, 103 F.3d at 786 (human rights); In re Exxon Valdez, 296 F. Supp. 2d at 1110 (environment); In re Simon II, 211 F.R.D. at 100 (mass tort); Day v. NLO, 851 F. Supp. 869, 884 (S.D. Ohio 1994) (mass tort); Kernan v. Holiday Univ., Inc., 1990 WL 289505, at *5 (D. Md. Aug. 14, 1990) (employment discrimination case); Barefield v. Chervron, 1988 WL 188433, at *4 (N.D. Cal. Dec. 6, 1988) (same).

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and accurately analyzed. It is also consistent with the fundamental purpose of

Rule 23 class actions to permit individuals with small claims to obtain justice.

Thus, the district court acted well within its discretion when it found

that an aggregate approach to damages for the equal pay claims was consistent

with Rule 23 and due process.

Dated: January 10, 2005

Respectfully submitted,

By:

Bill Lann Lee Jahan C. Sagafi Lieff, Cabraser, Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

Adrienne Bloch Communities For A Better Environment 1611 Telegraph Avenue, Suite 450 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438

Gail Hillebrand Consumers Union 1535 Mission Street San Francisco, CA 94103 Telephone: (415) 431-6747 Facsimile: (415) 431-0906

Stuart Rossman National Consumers Law Center 77 Summer Street, 10th floor Boston, MA 02110-1006 Telephone: (617) 542-8010 Facsimile: (617) 542-8028

Jennie Green Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499

368183.3

Attorneys for Amici Curiae - 15 -

CERTIFICATE OF COMPLIANCE
I certify that, pursuant to Fed. R. App. P.32(a)(7)(C) and Ninth Circuit
Rule 32-1, the attached petition is proportionately spaced, has a typeface of 14
points, and contains 3,560 words, according to the counter of the word processing
program with which it was prepared.
Dated: January 10, 2005
Bill Lann Lee Lieff, Cabraser, Heimann & Bernstein, LLP Embarcadero Center West 275 Battery Street, 30th Floor San Francisco, CA 94111-3339

368183.3

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TABLE OF CONTENTS

Page

I. INTRODUCTION ..........................................................................................1
II. AMICI’S STATEMENTS OF INTEREST.....................................................1
III. THE DUE PROCESS CLAUSE PERMITS TRIAL COURTS THE DISCRETION IN APPROPRIATE CASES TO RELY ON AGGREGATE PROOF OF DAMAGES WITHOUT THE NECESSITY FOR INDIVIDUALIZED HEARINGS...................................3
IV. AGGREGATE TECHNIQUES ARE COMMONLY USED TO CALCULATE CLASS-WIDE DAMAGES IN COMPARABLE CLASS ACTIONS..........................................................................................5
A. Human Rights Actions .........................................................................6
B. Antitrust Actions ..................................................................................7
C. Securities Actions.................................................................................9
D. Consumer Actions ............................................................................. 11
V. AWARDING PUNITIVE DAMAGES ON AN AGGREGATE BASIS IS CONSISTENT WITH DUE PROCESS..................................... 12
VI. CONCLUSION............................................................................................ 14

-i-
368183.3

TABLE OF AUTHORITIES

Page

Cases
Avery v. State Farm Mut. Auto Ins. Co., 746 N.E.2d 1242 (Ill. App. 2001) .................................................................. 6, 11
Barefield v. Chervron, 1988 WL 188433 (N.D. Cal. Dec. 6, 1988)....................................................... 14
Basic v. Levinson, 485 U.S. 224 (1988) ........................................................................................... 10
Bell v. Farmers Ins. Exch., 115 Cal.App.4th 715 (Cal. App. 2004)............................................................ 5, 6
Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975).............................................................................. 10
Carnegie v. Household Int’l, Inc., 376 F.3d 656 (7th Cir. 2004).............................................................................. 11
Connecticut v. Doehr, 501 U.S. 1 (1991) ............................................................................................. 3, 4
Day v. NLO, 851 F. Supp. 869 (S.D. Ohio 1994) ................................................................... 14
Deposit Guaranty Nat’l Bank v. Roper, 445 U.S. 326 (1985)..............................................................................................5
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980)..................................................................................2
Fischer v. Johns-Manville Corp, 512 A.2d 466 (N.J. 1986)................................................................................... 13
Gilbert v. Homar, 520 U.S. 924 (1997) .............................................................................................4
Harmsen v. Smith, 693 F.2d 932 (9th Cir. 1982).............................................................................. 10
Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996)....................................................................... passim
In re Activision Sec. Litig., 621 F. Supp. 415 (N.D. Cal. 1985) .................................................................... 10

368183.3

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TABLE OF AUTHORITIES (continued)

Page

In re Alcoholic Beverages Litig., 95 F.R.D. 321 (E.D.N.Y. 1982) ............................................................................7
In re Cardizem CD Antitrust Litigation, 200 F.R.D. 326 (E.D. Mich. 2001) .......................................................................9
In re Exxon Valdez, 296 F. Supp. 2d 1071 (D. Alaska 2004) ...................................................... 13, 14
In re Melridge, Inc. Sec. Litig., 837 F. Supp. 1076 (D. Or. 1993) ....................................................................... 10
In re Memorex Securities Litigation, 61 F.R.D. 88 (N.D. Cal. 1973)........................................................................... 11
In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004)........................................................................ 11, 12
In re Polypropylene Carpet Antitrust Litig. 996 F.Supp. 18 (N.D. Ga. 1997) ...........................................................................7
In re Potash, 159 F.R.D. 682 (D. Minn. 1995)...........................................................................7
In re Scorpion Tech., Inc. Sec. Litig., 1994 WL 774029 (N.D. Cal. Aug. 10, 1994) .................................................... 10
In re Simon II Litig., 211 F.R.D. 86 (E.D.N.Y. 2002) ..................................................................... 6, 14
In re Visa, 280 F.3d 124 (2d Cir. 2001)............................................................................. 7, 8
Kernan v. Holiday Univ., Inc., 1990 WL 289505 (D. Md. Aug. 14, 1990) ........................................................ 14
Matthews v. Eldridge, 424 U.S. 319 (1976) ......................................................................................... 3, 4
Occidental Land, Inc. v. Super. Ct. of Orange County, 134 Cal. Rptr. 388 (Cal. 1976)........................................................................... 11
Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978) ........................................................................... 11

368183.3

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TABLE OF AUTHORITIES (continued)

Page

Sav-on Drug Stores, Inc. v. Super. Ct., 17 Cal.Rptr.3d 906 (Cal. 2004).............................................................................6
Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32 (1st Cir. 2003) .......................................................................... 11, 12
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408 (2003) ..................................................................................... 12, 13
Story Parchment Co. v. Patterson Parchment Co., 282 U.S. 555 (1931)..............................................................................................5
Van Gemert v. Boeing Co., 553 F.2d 812 (2d Cir. 1977), aff’d 444 U.S. 472 (1980) ................................... 10
Wal-Mart Stores, Inc. v. VISA USA, Inc., -- F.3d --, 2005 WL 15056 (2d Cir Jan. 4, 2005).................................................8

Other Authorities
Consumer Class Actions: A Practical Litigation Guide (4th ed. 1999) ...................3
Elizabeth Cabraser, The Effect of State Farm v. Campbell on Punitive Damages in Mass Torts and Class Action Litigation, SJ035 ALI-ABA 1163, 1165 (2004).................................................................. 13
John Finnerty & George Pushner, “An Improved Two-Trader Model for Measuring Damages in Securities Fraud Class Actions,” 8 Stan. J.L. Bus. & Fin. 213 (2003) ......................................................................9
Jon Koslow, “Estimating Aggregate Damages In Class-Action Litigation Under Rule 10b-5 For Purposes of Settlement,” 59 Fordham L. Rev. 811 (1991)......................................................................... 10
Michael Barclay & Frank C. Torchio, “A Comparison of Trading Models Used for Calculating Aggregate Damages in Securities Litigation,” 64 Law & Contemp. Probs. 105 (2001)............................................................. 10
Michael J. Saks, Justice Improved: The Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts, 44 Stan. L. Rev. 815 (1992) ..................................................................................4
Semra Mesulam, Collective Rewards and Limited Punishment, 104 Colum. L. Rev. 1114 (2004) ....................................................................... 13

368183.3

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TABLE OF AUTHORITIES (continued)

Page

Rules Rule 23 ............................................................................................................. 13, 14

Treatises Manual For Complex Litig. – Fourth Ed.,
§ 11.493.................................................................................................................6
Newberg on Class Actions § 10:2 (4th ed. 2002) .............................................................................................4
Newberg, § 10:5 ........................................................................................................5
Newberg, § 10:7 ........................................................................................................7
Newberg, § 10:8 ........................................................................................................9

-v-
368183.3

 
 04-16688 04-1

, I endantlAppel

Appeal

Northern

a

Nos. 04-16688 & 04-16720
IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, DEBORAH GUNTER, KAREN WILLIAMSON, CHRISTINE KWAPNOSKI, and EDITH ARANA, Plaintiffs/ Appellees/Cross-Appellants, vs. WAL-MART STORES, INC., Defendan t/Appellant/Cross- Appell ee.
On Appeal From The United States District Court For The Northern District Of California
BRIEF OF AMICI CURIAE CONSUMERS UNION, NATIONAL CONSUMER LAW CENTER, CENTER FOR CONSTITUTIONAL RIGHTS, AND COMMUNITIES FOR A BETTER ENVIRONMENT IN
OPPOSITION TO FOR REHEARING EN BANC

Mark Savage Consumers Union 1535 Mission Street San Francisco, CA 94103 Telephone: (415) 431-6747 Facsimile: (415) 431-0906

Bill Lann Lee Lewis, Feinberg, Lee, Renaker
& Jackson, P.C. 1330 Broadway, Suite 1800 Oakland, Califo111ia Telephone: (510) 839-6824 Facsimile: (510) 839-7839

Adrienne Bloch COilllnunities For A Better
Environment 1611 Telegraph Avenue, Suite 450 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438

Jennie Green Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499

Stuart Rossman National Consumers Law Center 77 Summer Street, 10th floor Boston, MA 02110-1006 Telephone: (617) 542-8010 Facsimile: (617) 542-8028

Attorneys/or Amici Curiae

DISCLOSURE STATEMENT None of the amici has a parent corporation or stock that is owned by a publicly held corporation.

TABLE OF CONTENTS

Page No.

I. INTR0 DUCTI0 N................................................................................. " .. ... ... 1
II. UNDER THE DUE PROCESS CLAUSE, TRIAL COURTS HAVE THE DISCRETION IN APPROPRIATE CASES TO RELY ON AGGREGATE PROOF OF DAMAGES WITHOUT THE NECESSITY FOR INDIVIDUALIZED HEARINGS ................................... 1
III. AGGREGATE TECHNIQUES ARE COMMONLY USED TO CALCULATE CLASS-WIDE DAMAGES IN CLASS ACTIONS ENFORCING FEDERAL RIGHTS ............................................................... 2
A. Antitrust Actions ................................................................................... 3
B. Securities Actions .................................................................................. 4
C. Consulner Actions ................................................................................. 6
D. Human Rights Actions ............................................................... " ......... 7

VI. CONCLUSION ............................................................................................... 7

TABLE OF AUTHORITIES Page No.
FEDERAL CASES Basic v. Levinson, 485 U.S. 224 (1988) ................................................................... 6 Carnegie v. Household In1'l, Inc., 376 F.3d 656 (7th Cir. 2004) .............................. 6 Connecticut v. Doehr, 501 U.S. 1 (1991) .................................................................. 1 Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137 (N.D. Cal. 2004) .......................... 2 Dukes v. Wal-Mart Stores, Inc., 474 F.3d 1214 (9th Cir. 2007) .............................. 2 Hannsen v. Smith, 693 F.2d 932 (9th Cir. 1982) ...................................................... 5 Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) ...................................... 2, 7 In re Activision Sec. Litig., 621 F. Supp. 415 (N.D. Cal. 1985) ............................... 5 In re Alcoholic Beverages Litig., 95 F.R.D. 321 (E.D.N.Y. 1982) .......................... 3 In re Melridge, Inc. Sec. Litig., 837 F. Supp. 1076 (D. Or. 1993) ............................ 5 In re Monmnental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) ................................ 6 In re Polypropylene Carpet Antitrust Litig., 996 F.Supp. 18 (N.D. Ga. 1997)......... 3 In re Potash, 159 F.R.D. 682 (D. Minn. 1995) .......................................................... 3 In re Scorpion Tech., Inc. Sec. Litig., No. C 93-20333 RPA, 1994 WL 774029, (N.D. Cal. Aug. 10, 1994) ......................................................................................... 5 In re VisaCheck/Mastermoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) ..... 3,4 Klay v. Humana, Inc., 382 F.3d 1241 (1Ith Cir. 2004) ............................................ 6 Matthews v. Eldridge, 424 U.S. 319 (1976) .............................................................. 1 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ........................................................ 2
11

Roper v. Consurve, Inc., 578 F.2d 1106 (5th Cir. 1978) .......................................... 6 Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d 32 (1st Cir. 2(03) ...........6 Van Gernert v. Boeing Co., 553 F.2d 812 (2d Cir. 1977) (approving aggregate damages judglnent), aff'd 444 U.S. 472 (1980) ........................................................ 5 Wal-Mart Stores, Inc. v. VISA USA, Inc., 396 F.3d 96 (2d Cir. 2(05) ................... 3 STATE CASES Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715 (Cal. Ct. App. 2004) ............ 7 Occidental Land, Inc. v. Super. Ct., 134 Cal. Rptr. 388 (Cal. 1976) ........................ 6 SaY-on Drug Stores, Inc. v. Super. Ct., 17 Cal. Rptr. 3d 906 (Cal. 20(4) ................ 7 OTHER AUTHORITIES 3 Newberg on Class Actions (4th ed. 2(06) ........................................................... 3,4 Jon Koslow, Estimating Aggregate Damages In Class-Action Litigation Under Rule 10b-5 For Purposes of Settlement, 59 Fordham L. Rev. 811 (1991) ............... 5 Manual For Complex Litig. § 11.493 (4th ed.) ......................................................... 7 Michael Barclay & Frank C. Torchio, A Comparison of Trading Models Used for Calculating Aggregate Damages in Securities Litigation, 64 LAW & CONTEMP. PROBS. 105, 106 (2001) ........................................................................................... 5 John Finnerty and George Pushner, An Improved Two-Trader Model for Measuring Damages in Securities Fraud Class Actions, 8 Stan. J.L. Bus. & Fin. 213,218 (2003) ..................................................................................................... 4,5
111

I. INTRODUCTION The petition for rehearing en bane should be denied because the panel
opinion correctly rejected Wal-Mart's contention that the Due Process Clause gives Wal-Mart the absolute right to an individualized damage hearing for each class member. That claim is inconsistent with the long-standing reliance of courts on aggregate techniques for calculating class-wide damages in class actions generally, as well as in employment discrimination cases in particular.
Amici Curiae are public interest organizations that participate in litigation to enforce federal rights in the areas of antitrust, securities, consumer, human rights, and environmental law. If Wal-Mart' s renewed contention were accepted, amici believe that existing class action enforcelnent in these areas - as well as employment discrimination - would be significantly iInpaired. H. UNDER THE DUE PROCESS CLAUSE, TRIAL COURTS HAVE
THE DISCRETION IN APPROPRIATE CASES TO RELY ON AGGREGATE PROOF OF DAMAGES WITHOUT THE NECESSITY FOR INDIVIDUALIZED HEARINGS.
Due process requires that a fair balance be struck between vindicating a plaintiff's interest in obtaining a remedy, avoiding an erroneous deprivation of a defendant's property, and "any ancillary interest the [Court] may have in providing the procedure or foregoing the added burden of providing greater protections." Connecticut v. Doehr, 501 U.S. 1, 11 (1991) (applying balancing test enunciated in MattheHJS v. Eldridge, 424 U.S. 319 (1976) to private litigants) (applying Doehr).
1

Applying the DoehriMatthews balancing test, this Court held in Hilao v. Estate of Marcos that due process permits statistical sampling in calculating personal injury and wrongful death damages for a class of Filipino torture victims, injuries more varied than the purely economic injuries at issue here. 103 F.3d 767, 786-87 (9th Cir. 1996). See discussion of Hilao infra at III.D.
Wal-Mart's due process contention wholly ignores the interest balancing engaged in by the trial court, which appropriately gave great weight to Wal-Mart's "extraordinarily sophisticated" computerized employee records that make possible the accurate determination of the class's losses frOlll discrimination. Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 180 (N.D. Cal. 2004). Further, Wal-Mart's petition for rehearing nowhere acknowledges the ample protections which the district court's certification order provided for Wal-Mart at any subsequent damages phase, id. at 172-73, and which the panel opinion ratified. Dukes v. Wal-Mart Stores, Inc., 474 F.3d 1214, 1241-42 (9th Cir. 2007).1 III. AGGREGATE TECHNIQUES ARE COMMONLY USED TO
CALCULATE CLASS-WIDE DAMAGES IN CLASS ACTIONS ENFORCING FEDERAL RIGHTS.
Wal-Mart's due process arguments should be viewed through the lens of the long-standing reliance by courts on aggregated damage-calculation 1Moreover, as the district court noted, damages are secondary to the class-wide injunctive and declaratory relief at the heart of this class action. 222 F.R.D. at 172 (discussing Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003).
2

techniques in a variety of substantive areas of law.
A. Antitrust Actions
It is a settled practice for courts in antitrust class actions to rely upon
class-wide aggregate techniques in calculating individual damages awards without
individualized hearings of class member claims.2 The Second Circuit has stated
that:
[I]f defendants' argument (that the requirement of individualized proof on the question of damages is in itself sufficient to preclude class treatment) were uncritically accepted, there would be little if any place for the class action device in the adjudication of antitrust claims. Such a result should not be and has not been readily embraced by the various courts confronted with the same argument.
In re VisaCheckiMasterrnoney Antitrust Litig., 280 F.3d 124, 140 (2d Cir. 2001)
(quoting III re Alcoholic Beverages Litig., 95 F.R.D. 321, 327-38 (E.D.N.Y. 1982)
and citing other cases).3
2 See 3 NEWBERG ON CLASS ACTIONS § 10:7 n.l (4th ed. 2006) (citing nU111erOUS cases). See also In re Polypropylene Carpet Antitrust Litig., 996 F.Supp. 18,29 (N.D. Ga. 1997) (holding that aggregate proof of damages through econometric techniques is appropriate); In re Potash, 159 F.R.D. 682, 697 (D. Minn. 1995) ("the fact that the damages calculation may invol ve individualized analysis is not by itself sufficient to preclude certification when liability can be determined on a class-wide basis."). 3Wal-Mart was one of the named plaintiffs in this case, representing a class of approximately 5 million merchants. See Wed-Mart Stores, Inc. v. VISA USA, Inc., 396 F.3d 96 (2d Cir. 2005). Apparently Wal-Mart had no argument with the use of class-wide, aggregate techniques to determine individual damages when it itself
3

In In re Visa, plaintiffs sought certification of a class of merchants and trade associations harmed by Visa's and MasterCard's "tying arrangements" that forced merchants to accept debit cards with higher per-transaction fees than other types of Visa and MasterCard cards. 280 F.2d 124, 131 (2d Cir. 2001). Defendants argued that merchants had the ability to mitigate any daInages relating to the higher debit card fee, thus requiring individualized hearings on damages and rendering the case ul1lnanageable as a class action. Id. at 137, 140. The Second Circuit, however, affirmed the use of a statistical formula, noting that the district court - as here - retained tools to manage individual damages issues that might arise at later stages of the litigation. Id. at 141.4
B. Securities Actions Courts routinely employ class-wide, formula-based techniques to
calculate individual damages in securities class actions. See 3 NEWBERG ON CLASS ACTIONS § 10:8 (4th ed. 2006). Class damage determinations in such cases generally require using complex statistical models. See John Finnerty & George
was a plaintiff. The Second Circuit approved a $3 billion settlement in this case, the largest in the history of antitrust law. Id. 4The court noted that the district court had "a number of management tools" at its disposal, including: 1) bifurcating liability and damage trials, 2) appointing a special master to preside over individual damages proceedings, 3) decertifying the class after the liability phase, 4) creating subclasses, or 5) altering the class. Id. at 141.
4

Pushner, An Improved Two-Trader Model for Measuring Damages in Securities
Fraud Class Actions, 8 Stan. J.L. Bus. & Fin. 213,218 (2003). Finnerty and
Pushner cite empirical studies showing "that investors trade the common stocks in
their portfolios with different intensities," statistical estimates of which impact
damages determinations differently.s Id. at 230-31
Courts regularly approve judgments of aggregate damages awards
based on class-wide statistical analyses in securities cases.6 Given the large
numbers of class members involved in many securities class actions and the
correspondingly large number of shares and transactions at issue, requiring
individual proofs of damages would imperil enforcement of the nation's laws
S Statistical models are necessary because the large volume of trades and the presence of "street name" trades (which obscure the identity of the security owner), make precise individual damages determinations infeasible or impossible. Jon Koslow, Estimating Aggregate Damages In Class-Action Litigation Under Rule lOb-5 For Purposes ofSettlement, 59 FORDHAM L. REV. 811, 828 (1991). See also Michael Barclay & Frank C. Torchio, A Comparison of Trading Models Usedfor Calculating Aggregate Damages in Securities Litigation, 64 LAW & CONTEMP. PROBS. 105, 106 (2001). 6 See, e.g., Harmsen v. Smith, 693 F.2d 932,945-46 (9th Cir. 1982) (aggregate damages need not be proved to a "mathematical certainty"); Van Gemert v. Boeing Co., 553 F.2d 812,815 (2d Cir. 1977) (approving aggregate damagesjudglnent), aff'd 444 U.S. 472 (1980); In re Melridge, Inc. Sec. Litig., 837 F. Supp. 1076, 1080 (D. Or. 1993) (aggregate proof of damages by expert appropriate). See also In re Scorpion Tech., Inc. Sec. Litig., No. C 93-20333 RPA, 1994 WL 774029, at *4 (N.D. Cal. Aug. 10, 1994) (individual issues regarding damages do not defeat class certification in a securities case); In re Activisioll Sec. Litig., 621 F. Supp. 415,434 (N.D. Cal. 1985) (same).
5

against large-scale securities fraud. Cf Basic v. Levinson, 485 U.S. 224, 242
(l988) (approving "fraud-on-the-market" theory in order to prevent individualized
proof of reliance from impairing class action enforcement of securities laws).
C. Consumer Actions Courts have approved of aggregate techniques for computing class-
wide damages in numerous consumer class actions.7
In Smilow v. Southwestern Bell Mobile Sys., Inc., for example, the
plaintiffs alleged that the defendant's practice of charging customers for incoming
cellular telephone calls constituted a breach of contract and the violation of various
state and federal statutes. 323 F.3d32, 34-35 (lst Cir. 2003). The defendant
argued that the district court erred in concluding that objective data regarding the
plaintiffs' loss could be extracted from defendant's computer system and analyzed
through a "mechanical process." Id. at 40. The First Circuit credited the district
7 See, e.g., In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) (insurance rates); Smilow v. Southwestern Bell Mobile Sys., Inc., 323 F.3d32 (lst Cir. 2003) (cell phone charges); Roper v. Consurve, Inc., 578 F.2dll06 (5th Cir. 1978) (credit card charges); Occidental Land, Inc. v. Super. Ct., 134 Cal. Rptr. 388,393 (Cal. 1976) (developer fraud). See also Carnegie v. Household Int'l, Inc., 376 F.3d 656,661 (7th Cir. 2004) (stating, in a 17-million-member class action against banks and tax preparers for RICO violation, that "Rule 23 allows district courts to devise imaginative solutions to problems created by ... individual damages issues"). Cf Klay v. Hwnana, Inc., 382 F.3d 1241, 1259-60 (lIth Cir. 2004) ("Particularly where damages can by computed according to some fonnula, statistical analysis, or other easy or essentially mechanical methods, the fact that damages must be calculated on an individual basis is not impediment to class certifi cation. ").
6

court's determination and stated that class certification should ordinarily not be denied because damages calculation issues arise. Id. at 40 n.8. As in Smilow, WalMart's employment records allow mechanical application of a formula in order to generate objective evidence of damages.
D. Human Rights Actions In Hilao, this Court approved statistical sampling as a means of
calculating individual damages on a class-wide, aggregate basis for thousands of Filipino victims of torture. 103 F.3d at 782. In conducting the balancing required by the Due Process Clause, this Court reasoned that even if "probabilistic prediction" of aggregate damages somewhat increases the "risk of error in comparison to adversarial adjudication of each claim," that small increase was outweighed by the plaintiffs' substantial interest in obtaining a remedy.s Id. at 786. This case, therefore, is well within the scope of this Court's holding in Hilao. IV. CONCLUSION
The petition for rehearing en banc should be denied. The panel opinion correctly held that an aggregate approach to damages for the equal pay
S Calculating damages based on statistical sampling has been recognized in other types of cases as well. See Bell v. Fanners Ins. Exchange, 115 Cal. App. 4th 715, 759 (Cal. Ct. App. 2004) (overtime compensation); Sav-oll Drug Stores, Inc. v. Super. Ct., 17 Cal. Rptr. 3d 906, 918 & n.6, 923 & n.12 (Cal. 2004) (noting with approval the use of statistical sampling in Bell and aggregate techniques in other cases). See also Manual For Complex Litig. § 11.493 (4th ed.) (use of sampling acceptable in pretrial procedures).
7

claims was consistent with Rule 23 and the Due Process Clause. Dated: March 27, 2007

Adrienne Bloch Communities For A Better Environment 1611 Telegraph Avenue, Suite 450 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438
Jennie Green Center for Constitutional Rights 666 Broadway, 7th Floor New York, NY 10012 Telephone: (212) 614-6464 Facsimile: (212) 614-6499

I
Bill ~ann Lee Le~is, Feinberg, Lee, Renaker
& Jackson, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 Telephone: (510) 839-6824 Facsimile: (510) 839-7839
Mark Savage Consumers Union 1535 Mission Street San Francisco, CA 94103 Telephone: (415) 431-6747 Facsimile: (415) 431-0906
Stuart Rossman National Consumers Law Center 77 Summer Street, 10th floor Boston, MA 02110-1006 Telephone: (617) 542-8010 Facsimile: (617) 542-8028

8

CERTIFICATE OF COMPLIANCE

I certify that, pursuant to Fed. R. App. P.32(a)(7)(C) and Ninth Circuit

Rule 32-1, the attached petition is proportionately spaced, has a typeface of 14

points, and contains 1, 132 words, according to the counter of the word processing

program with which it was prepared.

Dated: March 27, 2007

v
Bill Lann Lee Lewis, Feinberg, Lee, Renaker
& Jackson, PC 1330 Broadway, Suite 1800 Oakland, California Telephone: (510) 839-6824 Facsimile: (510) 839-7839

9

PROOF OF SERVICE

I hereby certify that on this 2ih day of March, 2007, I caused two copies of

the foregoing document:

BRIEF OF AMICI CURIAE CONSUMERS UNION, NATIONAL CONSUMER LAW CENTER, CENTER FOR CONSTITUTIONAL RIGHTS, AND COMMUNITIES FOR A BETTER ENVIRONMENT IN OPPPOSITION TO FOR REHEARING EN BANC

to be served on the persons listed below by placing two true and correct copies

thereof via regular U.S. mail, addressed as follows:

JOSEPH M. SELLERS CHRISTINE E. WEBBER CHARLES E. TOMPKINS, IV JULIE GOLDSMITH REISER COHEN, MILSTEIN, HAUSFELD & TOLL, PLLC 1100 New York Ave., #500 Washington, D.C. 20005-3964 (202 )408 -4600
BRAD SELIGMAN Counsel of Record JOCELYN D. LARKIN THE IMPACT FUND 125 University Avenue, Suite 102 Berkeley, CA 94710 (510) 845-3473
IRMA D. HERRERA DEBRA A. SMITH EQUAL RIGHTS ADVOCATES 1663 Mission Street, Suite 250 San Francisco, CA 94103 (415) 621-0672

SHEILA Y. THOMAS 5260 Proctor Avenue Oakland, CA 94618 (510) 339-3739
STEVE STEMERMAN ELIZABETH A. LAWRENCE SARAH VARELA DAVIS, COWELL & BOWE, LLP 595 Market Street, Suite 1400 San Francisco, California 94105 (415) 597-7200
STEPHEN TINKLER CHARLES FIRTH TINKLER & FIRTH 309 Johnson Street Santa Fe, NM 87501 (505) 982-8533

DEBRA GARDNER PUBLIC JUSTICE CENTER 500 East Lexington Street Baltimore, MD 21202 (410) 625-9409
MERIT BENNETT TALIA KOSH Bennett & Kosh 460 St. Michaels Drive, Suite 703 Santa Fe, NM 87505 (505) 983-9834

SHAUNA MARSHALL HASTINGS COLLEGE OF THE LAW 200 McAllister Street San Francisco, CA 94102 (415) 565-4685

Attorneys for Plaintiffs-Appellees

Paul Grossman Nancy L. Abell PAUL, HASTINGS, JANOFSKY & WALKERLLP 515 South Flower Street Los Angeles, California 90071 (213) 683-6000
Theodore J. Boutrous, J1'. Gail E. Lees GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 9007l

Rae T. Vann McGUINESS NORRIS & WILLIANS, LLP 1015 Fifteenth Street, NW, Suite 1200 Washington, DC 20005 (202) 789-8600
Robin S. Conrad Shane Brennan NATIONAL CHAMBER LITIGATION CENTER, INC. 1615 H Street, NW Washington, DC 20062 (202) 463-5337

Mark A. Perry Amanda M. Rose GIBSON, DUNN & CRUTCHER, LLP One Montgomery Street San Francisco, California 94104 (415) 393-8200

John H. Beisner Evelyn L. Becker O'MELVENY & MYERS LLP 1625 Eye Street, NW Washington, DC 20006 (202) 383-5300

W. Stephen Cannon Raymond C. Fay Laura C. Fentonmiller Constantine Cannon, LLP 1627 I Street, NW, Suite 1000 Washington, DC 20006 (202) 204-3500
Richard L. Berckman James M. Beck Jason Murtagh Deschert, LLP Cira Centre 2929 Arch Street Philadelphia, Pennsylvania 191042808 (215) 994-4000
Jennifer L. Brown Shook, Hardy & Bacon, LLP 333 Bush Street, Suite 600 San Francisco, California 94104-2828 (415) 544-1900

Richard Krisher LATHAM & WATKINS, LLP 633 West fifth Street, Suite 4000 Los Angeles, California 90071 (213) 485-1234
Daniel J, Popeo Richard Samp Washington Legal Foundation 2009 Massachusetts Avenue, NW Washington, DC 20037 (202) 588-0302
Maureen K. Bogue 50 Beale Street P.O. Box 3965 San Francisco, California 94105-1895 (415) 768-5793

Bill Lann Lee LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 94612 (510) 839-6824

 
 (Slip Opinion)

OCTOBER TERM, 2010

1

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES

Syllabus
WAL-MART STORES, INC. v. DUKES ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 10–277. Argued March 29, 2011—Decided June 20, 2011
Respondents, current or former employees of petitioner Wal-Mart, sought judgment against the company for injunctive and declaratory relief, punitive damages, and backpay, on behalf of themselves and a nationwide class of some 1.5 million female employees, because of Wal-Mart’s alleged discrimination against women in violation of Title VII of the Civil Rights Act of 1964. They claim that local managers exercise their discretion over pay and promotions disproportionately in favor of men, which has an unlawful disparate impact on female employees; and that Wal-Mart’s refusal to cabin its managers’ authority amounts to disparate treatment. The District Court certified the class, finding that respondents satisfied Federal Rule of Civil Procedure 23(a), and Rule 23(b)(2)’s requirement of showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The Ninth Circuit substantially affirmed, concluding, inter alia, that respondents met Rule 23(a)(2)’s commonality requirement and that their backpay claims could be certified as part of a (b)(2) class because those claims did not predominate over the declaratory and injunctive relief requests. It also ruled that the class action could be manageably tried without depriving Wal-Mart of its right to present its statutory defenses if the District Court selected a random set of claims for valuation and then extrapolated the validity and value of the untested claims from the sample set.
Held: 1. The certification of the plaintiff class was not consistent with
Rule 23(a). Pp. 8–20. (a) Rule 23(a)(2) requires a party seeking class certification to

2

WAL-MART STORES, INC. v. DUKES

Syllabus
prove that the class has common “questions of law or fact.” Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Here, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination. The crux of a Title VII inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876, and respondents wish to sue for millions of employment decisions at once. Without some glue holding together the alleged reasons for those decisions, it will be impossible to say that examination of all the class members’ claims will produce a common answer to the crucial discrimination question. Pp. 8–12.
(b) General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, describes the proper approach to commonality. On the facts of this case, the conceptual gap between an individual’s discrimination claim and “the existence of a class of persons who have suffered the same injury,” id., at 157–158, must be bridged by “[s]ignificant proof that an employer operated under a general policy of discrimination,” id., at 159, n. 15. Such proof is absent here. Wal-Mart’s announced policy forbids sex discrimination, and the company has penalties for denials of equal opportunity. Respondents’ only evidence of a general discrimination policy was a sociologist’s analysis asserting that WalMart’s corporate culture made it vulnerable to gender bias. But because he could not estimate what percent of Wal-Mart employment decisions might be determined by stereotypical thinking, his testimony was worlds away from “significant proof” that Wal-Mart “operated under a general policy of discrimination.” Pp. 12–14.
(c) The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of giving local supervisors discretion over employment matters. While such a policy could be the basis of a Title VII disparate-impact claim, recognizing that a claim “can” exist does not mean that every employee in a company with that policy has a common claim. In a company of Wal-Mart’s size and geographical scope, it is unlikely that all managers would exercise their discretion in a common way without some common direction. Respondents’ attempt to show such direction by means of statistical and anecdotal evidence falls well short. Pp. 14–20.
2. Respondents’ backpay claims were improperly certified under Rule 23(b)(2). Pp. 20–27.
(a) Claims for monetary relief may not be certified under Rule 23(b)(2), at least where the monetary relief is not incidental to the requested injunctive or declaratory relief. It is unnecessary to decide

Cite as: 564 U. S. ____ (2011)

3

Syllabus
whether monetary claims can ever be certified under the Rule because, at a minimum, claims for individualized relief, like backpay, are excluded. Rule 23(b)(2) applies only when a single, indivisible remedy would provide relief to each class member. The Rule’s history and structure indicate that individualized monetary claims belong instead in Rule 23(b)(3), with its procedural protections of predominance, superiority, mandatory notice, and the right to opt out. Pp. 20–23.
(b) Respondents nonetheless argue that their backpay claims were appropriately certified under Rule 23(b)(2) because those claims do not “predominate” over their injunctive and declaratory relief requests. That interpretation has no basis in the Rule’s text and does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify eliminating Rule 23(b)(3)’s procedural protections, and creates incentives for class representatives to place at risk potentially valid monetary relief claims. Moreover, a district court would have to reevaluate the roster of class members continuously to excise those who leave their employment and become ineligible for classwide injunctive or declaratory relief. By contrast, in a properly certified (b)(3) class action for backpay, it would be irrelevant whether the plaintiffs are still employed at Wal-Mart. It follows that backpay claims should not be certified under Rule 23(b)(2). Pp. 23–26.
(c) It is unnecessary to decide whether there are any forms of “incidental” monetary relief that are consistent with the above interpretation of Rule 23(b)(2) and the Due Process Clause because respondents’ backpay claims are not incidental to their requested injunction. Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Once a plaintiff establishes a pattern or practice of discrimination, a district court must usually conduct “additional proceedings . . . to determine the scope of individual relief.” Teamsters v. United States, 431 U. S. 324, 361. The company can then raise individual affirmative defenses and demonstrate that its action was lawful. Id., at 362. The Ninth Circuit erred in trying to replace such proceedings with Trial by Formula. Because Rule 23 cannot be interpreted to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b), a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. Pp. 26–27.
603 F. 3d 571, reversed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and ALITO, JJ., joined, and in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined as to Parts I and III.

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Syllabus
GINSBURG, J., filed an opinion concurring in part and dissenting in part, in which BREYER, SOTOMAYOR, and KAGAN, JJ., joined.

Cite as: 564 U. S. ____ (2011)

1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–277
_________________
WAL-MART STORES, INC., PETITIONER v.
 BETTY DUKES ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 20, 2011] 

JUSTICE SCALIA delivered the opinion of the Court.
We are presented with one of the most expansive class actions ever. The District Court and the Court of Appeals approved the certification of a class comprising about one and a half million plaintiffs, current and former female employees of petitioner Wal-Mart who allege that the discretion exercised by their local supervisors over pay and promotion matters violates Title VII by discriminating against women. In addition to injunctive and declaratory relief, the plaintiffs seek an award of backpay. We consider whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2).
I 
 A 

Petitioner Wal-Mart is the Nation’s largest private employer. It operates four types of retail stores throughout the country: Discount Stores, Supercenters, Neighborhood Markets, and Sam’s Clubs. Those stores are divided into seven nationwide divisions, which in turn comprise 41 regions of 80 to 85 stores apiece. Each store has between

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WAL-MART STORES, INC. v. DUKES

Opinion of the Court
40 and 53 separate departments and 80 to 500 staff positions. In all, Wal-Mart operates approximately 3,400 stores and employs more than one million people.
Pay and promotion decisions at Wal-Mart are generally committed to local managers’ broad discretion, which is exercised “in a largely subjective manner.” 222 F. R. D. 137, 145 (ND Cal. 2004). Local store managers may increase the wages of hourly employees (within limits) with only limited corporate oversight. As for salaried employees, such as store managers and their deputies, higher corporate authorities have discretion to set their pay within preestablished ranges.
Promotions work in a similar fashion. Wal-Mart permits store managers to apply their own subjective criteria when selecting candidates as “support managers,” which is the first step on the path to management. Admission to Wal-Mart’s management training program, however, does require that a candidate meet certain objective criteria, including an above-average performance rating, at least one year’s tenure in the applicant’s current position, and a willingness to relocate. But except for those requirements, regional and district managers have discretion to use their own judgment when selecting candidates for management training. Promotion to higher office—e.g., assistant manager, co-manager, or store manager—is similarly at the discretion of the employee’s superiors after prescribed objective factors are satisfied.
B
The named plaintiffs in this lawsuit, representing the 1.5 million members of the certified class, are three current or former Wal-Mart employees who allege that the company discriminated against them on the basis of their sex by denying them equal pay or promotions, in violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as

Cite as: 564 U. S. ____ (2011)

3

Opinion of the Court
amended, 42 U. S. C. §2000e–1 et seq.1 Betty Dukes began working at a Pittsburg, California,
Wal-Mart in 1994. She started as a cashier, but later sought and received a promotion to customer service manager. After a series of disciplinary violations, however, Dukes was demoted back to cashier and then to greeter. Dukes concedes she violated company policy, but contends that the disciplinary actions were in fact retaliation for invoking internal complaint procedures and that male employees have not been disciplined for similar infractions. Dukes also claims two male greeters in the Pittsburg store are paid more than she is.
Christine Kwapnoski has worked at Sam’s Club stores in Missouri and California for most of her adult life. She has held a number of positions, including a supervisory position. She claims that a male manager yelled at her frequently and screamed at female employees, but not at men. The manager in question “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” App. 1003a.
The final named plaintiff, Edith Arana, worked at a Wal-Mart store in Duarte, California, from 1995 to 2001. In 2000, she approached the store manager on more than one occasion about management training, but was brushed off. Arana concluded she was being denied opportunity for advancement because of her sex. She initiated internal complaint procedures, whereupon she was told to apply directly to the district manager if she thought her store manager was being unfair. Arana, however, decided against that and never applied for management training again. In 2001, she was fired for failure to comply with Wal-Mart’s timekeeping policy.
These plaintiffs, respondents here, do not allege that
——————
1 The complaint included seven named plaintiffs, but only three remain part of the certified class as narrowed by the Court of Appeals.

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Opinion of the Court
Wal-Mart has any express corporate policy against the advancement of women. Rather, they claim that their local managers’ discretion over pay and promotions is exercised disproportionately in favor of men, leading to an unlawful disparate impact on female employees, see 42 U. S. C. §2000e–2(k). And, respondents say, because WalMart is aware of this effect, its refusal to cabin its managers’ authority amounts to disparate treatment, see §2000e–2(a). Their complaint seeks injunctive and declaratory relief, punitive damages, and backpay. It does not ask for compensatory damages.
Importantly for our purposes, respondents claim that the discrimination to which they have been subjected is common to all Wal-Mart’s female employees. The basic theory of their case is that a strong and uniform “corporate culture” permits bias against women to infect, perhaps subconsciously, the discretionary decisionmaking of each one of Wal-Mart’s thousands of managers—thereby making every woman at the company the victim of one common discriminatory practice. Respondents therefore wish to litigate the Title VII claims of all female employees at Wal-Mart’s stores in a nationwide class action.
C
Class certification is governed by Federal Rule of Civil Procedure 23. Under Rule 23(a), the party seeking certification must demonstrate, first, that:
“(1) the class is so numerous that joinder of all members is impracticable,
“(2) there are questions of law or fact common to the class,
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
“(4) the representative parties will fairly and adequately protect the interests of the class” (paragraph

Cite as: 564 U. S. ____ (2011)

5

Opinion of the Court
breaks added).
Second, the proposed class must satisfy at least one of the three requirements listed in Rule 23(b). Respondents rely on Rule 23(b)(2), which applies when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”2
Invoking these provisions, respondents moved the District Court to certify a plaintiff class consisting of “ ‘[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart’s challenged pay and management track promotions policies and practices.’ ” 222 F. R. D., at 141–142 (quoting Plaintiff ’s Motion for Class Certification in case No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 37). As evidence that there were indeed “questions of law or fact common to” all the women of Wal-Mart, as Rule 23(a)(2) requires, respondents relied chiefly on three forms of proof: statistical evidence about pay and promotion disparities between men and women at the company, anecdotal reports of discrimination from about 120 of Wal-Mart’s female employees, and the testimony of a sociologist, Dr. William Bielby, who conducted a “social

——————
2 Rule 23(b)(1) allows a class to be maintained where “prosecuting separate actions by or against individual class members would create a risk of ” either “(A) inconsistent or varying adjudications,” or “(B) adjudications . . . that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impeded their ability to protect their interests.” Rule 23(b)(3) states that a class may be maintained where “questions of law or fact common to class members predominate over any questions affecting only individual members,” and a class action would be “superior to other available methods for fairly and efficiently adjudicating the controversy.” The applicability of these provisions to the plaintiff class is not before us.

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WAL-MART STORES, INC. v. DUKES

Opinion of the Court
framework analysis” of Wal-Mart’s “culture” and personnel practices, and concluded that the company was “vulnerable” to gender discrimination. 603 F. 3d 571, 601 (CA9 2010) (en banc).
Wal-Mart unsuccessfully moved to strike much of this evidence. It also offered its own countervailing statistical and other proof in an effort to defeat Rule 23(a)’s requirements of commonality, typicality, and adequate representation. Wal-Mart further contended that respondents’ monetary claims for backpay could not be certified under Rule 23(b)(2), first because that Rule refers only to injunctive and declaratory relief, and second because the backpay claims could not be manageably tried as a class without depriving Wal-Mart of its right to present certain statutory defenses. With one limitation not relevant here, the District Court granted respondents’ motion and certified their proposed class.3
D
A divided en banc Court of Appeals substantially affirmed the District Court’s certification order. 603 F. 3d 571. The majority concluded that respondents’ evidence of commonality was sufficient to “raise the common question whether Wal-Mart’s female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII.” Id., at 612 (emphasis deleted). It also agreed with the District Court that the named plaintiffs’ claims were sufficiently typical of the class as a whole
——————
3 The District Court excluded backpay claims based on promotion opportunities that had not been publicly posted, for the reason that no applicant data could exist for such positions. 222 F. R. D. 137, 182 (ND Cal. 2004). It also decided to afford class members notice of the action and the right to opt-out of the class with respect to respondents’ punitive-damages claim. Id., at 173.

Cite as: 564 U. S. ____ (2011)

7

Opinion of the Court
to satisfy Rule 23(a)(3), and that they could serve as adequate class representatives, see Rule 23(a)(4). Id., at 614– 615. With respect to the Rule 23(b)(2) question, the Ninth Circuit held that respondents’ backpay claims could be certified as part of a (b)(2) class because they did not “predominat[e]” over the requests for declaratory and injunctive relief, meaning they were not “superior in strength, influence, or authority” to the nonmonetary claims. Id., at 616 (internal quotation marks omitted).4
Finally, the Court of Appeals determined that the action could be manageably tried as a class action because the District Court could adopt the approach the Ninth Circuit approved in Hilao v. Estate of Marcos, 103 F. 3d 767, 782– 787 (1996). There compensatory damages for some 9,541 class members were calculated by selecting 137 claims at random, referring those claims to a special master for valuation, and then extrapolating the validity and value of the untested claims from the sample set. See 603 F. 3d, at 625–626. The Court of Appeals “s[aw] no reason why a similar procedure to that used in Hilao could not be employed in this case.” Id., at 627. It would allow Wal-Mart “to present individual defenses in the randomly selected ‘sample cases,’ thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination.” Ibid., n. 56 (emphasis deleted).
——————
4 To enable that result, the Court of Appeals trimmed the (b)(2) class in two ways: First, it remanded that part of the certification order which included respondents’ punitive-damages claim in the (b)(2) class, so that the District Court might consider whether that might cause the monetary relief to predominate. 603 F. 3d, at 621. Second, it accepted in part Wal-Mart’s argument that since class members whom it no longer employed had no standing to seek injunctive or declaratory relief, as to them monetary claims must predominate. It excluded from the certified class “those putative class members who were no longer Wal-Mart employees at the time Plaintiffs’ complaint was filed,” id., at 623 (emphasis added).

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WAL-MART STORES, INC. v. DUKES

Opinion of the Court
We granted certiorari. 562 U. S. ___ (2010).
II
The class action is “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U. S. 682, 700–701 (1979). In order to justify a departure from that rule, “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 216 (1974)). Rule 23(a) ensures that the named plaintiffs are appropriate representatives of the class whose claims they wish to litigate. The Rule’s four requirements—numerosity, commonality, typicality, and adequate representation—“effectively ‘limit the class claims to those fairly encompassed by the named plaintiff ’s claims.’ ” General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 156 (1982) (quoting General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 330 (1980)).
A
The crux of this case is commonality—the rule requiring a plaintiff to show that “there are questions of law or fact common to the class.” Rule 23(a)(2).5 That language is
——————
5 We have previously stated in this context that “[t]he commonality and typicality requirements of Rule 23(a) tend to merge. Both serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence. Those requirements therefore also tend to merge with the adequacy-of-representation requirement, although the latter requirement also raises concerns about the competency of class counsel and conflicts of interest.” General Telephone Co. of Southwest v. Fal-

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9

Opinion of the Court
easy to misread, since “[a]ny competently crafted class complaint literally raises common ‘questions.’ ” Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131–132 (2009). For example: Do all of us plaintiffs indeed work for Wal-Mart? Do our managers have discretion over pay? Is that an unlawful employment practice? What remedies should we get? Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury,” Falcon, supra, at 157. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways—by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparateimpact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention—for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
“What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to gen-
——————
con, 457 U. S. 147, 157–158, n. 13 (1982). In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequaterepresentation requirements of Rule 23(a).

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WAL-MART STORES, INC. v. DUKES

Opinion of the Court
erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers.” Nagareda, supra, at 132.
Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” 457 U. S., at 160, and that certification is proper only if “the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” id., at 161; see id., at 160 (“[A]ctual, not presumed, conformance with Rule 23(a) remains . . . indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” Falcon, supra, at 160 (quoting Coopers & Lybrand v. Livesay, 437 U. S. 463, 469 (1978); some internal quotation marks omitted).6
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6 A statement in one of our prior cases, Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974), is sometimes mistakenly cited to the contrary: “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 maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see id., at 165), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases.

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Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See Szabo v. Bridgeport Machines, Inc., 249 F. 3d 672, 676–677 (CA7 2001) (Easterbrook, J.).
In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart engages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employment decision,” Cooper v. Federal Reserve Bank of Richmond, 467 U. S. 867, 876 (1984). Here respondents wish

——————
Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individual members” would often be an insuperable barrier to class certification, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plaintiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. ___, ___ (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits.
7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that . . . discrimination was the company’s standard operating procedure[,] the regular rather than the unusual practice.” Teamsters v. United States, 431 U. S. 324, 358 (1977); see also Franks v. Bowman Transp. Co., 424 U. S. 747, 772 (1976). If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” Teamsters, supra, at 361.

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to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored.
B
This Court’s opinion in Falcon describes how the commonality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class comprising all employees wrongfully denied promotions and all applicants wrongfully denied jobs. 457 U. S., at 152. We rejected that composite class for lack of commonality and typicality, explaining:
“Conceptually, there is a wide gap between (a) an individual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typical of the class claims.” Id., at 157–158.
Falcon suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of every applicant or employee who might have been prejudiced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” Id., at 159, n. 15. Second, “[s]ignificant proof that an employer operated under a general policy of discrimination conceivably

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could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” Ibid. We think that statement precisely describes respondents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evaluating employees under a common standard.
The second manner of bridging the gap requires “significant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 1567a–1596a, and as the District Court recognized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respondents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” Id., at 152. He could not, however, “determine with any specificity how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart. At his deposition . . . Dr. Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Evidence 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

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U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a general policy of discrimination.”
C
The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common
——————
8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analysis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and behavior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); id., at 1745, 1747 (“[A] social framework necessarily contains only general statements about reliable patterns of relations among variables . . . and goes no further. . . . Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); id., at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of WalMart’s stores nationwide for the multi-year class period”).

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and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of discriminatory conduct,” Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 990 (1988).
To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” Id., at 990–991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U. S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sexbased disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions.
Respondents have not identified a common mode of exercising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analysis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way

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without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short.
The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin conducted his analysis region-by-region, comparing the number of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart . . . [and] these disparities . . . can be explained only by gender discrimination.” 603 F. 3d, at 604 (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Ibid.
Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In Falcon, we held that one named plaintiff ’s experience of discrimination was insufficient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” 457 U. S., at 158. A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” 603 F. 3d, at 637. A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uniform, store-by-store disparity upon which the plaintiffs’ theory of commonality depends.
There is another, more fundamental, respect in which

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respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is challenged.” Watson, 487 U. S., at 994; accord, Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 656 (1989) (approving that statement), superseded by statute on other grounds, 42 U. S. C. §2000e–2(k). That is all the more necessary when a class of plaintiffs is sought to be certified. Other than the bare existence of delegated discretion, respondents have identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice.
Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In Teamsters v. United States, 431 U. S. 324 (1977), in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial

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discrimination from particular individuals. See id., at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, id., at 337, and the class itself consisted of around 334 persons, United States v. T.I.M.E.-D. C., Inc., 517 F. 2d 299, 308 (CA5 1975), overruled on other grounds, Teamsters, supra. The 40 anecdotes thus represented roughly one account for every eight members of the class. Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class members. 517 F. 2d, at 315, and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of WalMart’s 3,400 stores. 603 F. 3d, at 634 (Ikuta, J., dissenting). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. Id., at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “operate[s] under a general policy of discrimination,” Falcon, supra, at 159, n. 15, which is what respondents must show to certify a companywide class.9
The dissent misunderstands the nature of the foregoing
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9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class.” Post, at 5, n. 4 (GINSBURG, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a general policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all.

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analysis. It criticizes our focus on the dissimilarities between the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality requirement with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10
In sum, we agree with Chief Judge Kozinski that the members of the class:
“held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. . . . Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d,
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10 For this reason, there is no force to the dissent’s attempt to distinguish Falcon on the ground that in that case there were “ ‘no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post, at 9, n. 7 (quoting Falcon, 457 U. S., at 162 (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post, at 9, n. 7), the same employment practices do not “touch and concern all members of the class.”

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at 652 (dissenting opinion).
III
We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, 511 U. S. 117, 121 (1994) (per curiam) expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief.
A
Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Nagareda, 84 N. Y. U. L. Rev., at 132. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an

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individualized award of monetary damages. That interpretation accords with the history of the Rule.
Because Rule 23 “stems from equity practice” that predated its codification, Amchem Products, Inc. v. Windsor, 521 U. S. 591, 613 (1997), in determining its meaning we have previously looked to the historical models on which the Rule was based, Ortiz v. Fibreboard Corp., 527 U. S. 815, 841–845 (1999). As we observed in Amchem, “[c]ivil rights cases against parties charged with unlawful, classbased discrimination are prime examples” of what (b)(2) is meant to capture. 521 U. S., at 614. In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, 313 F. 2d 284, 289, n. 5 (CA5 1963); Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., 311 F. 2d 107, 109 (CA4 1962) (per curiam); Frasier v. Board of Trustees of N.C., 134 F. Supp. 589, 593 (NC 1955) (three-judge court), aff’d, 350 U. S. 979 (1956).
Permitting the combination of individualized and classwide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impossible or unworkable, as in a (b)(1) class,11 or that the relief
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11 Rule 23(b)(1) applies where separate actions by or against individual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 614 (1997), or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the

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sought must perforce affect the entire class at once, as in a (b)(2) class. For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, Amchem, 521 U. S., at 614 (internal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” id., at 615 (quoting Advisory Committee’s Notes, 28 U. S. C. App., p. 697 (1994 ed.)). It allows class certification in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B).
Given that structure, we think it clear that individualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) class. When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into

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individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, . . . in which numerous persons make claims against a fund insufficient to satisfy all claims,” Amchem, supra, at 614.

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whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Predominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) requires the judge to make findings about predominance and superiority before allowing the class. Similarly, (b)(2) does not require that class members be given notice and optout rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 812 (1985). While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an additional reason not to read Rule 23(b)(2) to include the monetary claims here.
B
Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and declaratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to

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establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudication nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protections whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction.
Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “predominate.” But it also created the possibility (if the predominance test were correct) that individual class members’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally estopped from independently seeking compensatory damages based on that same denial. That possibility underscores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have.
The predominance test would also require the District Court to reevaluate the roster of class members continually. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed

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by Wal-Mart lack standing to seek injunctive or declaratory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the validity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declaratory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plaintiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certified under Rule 23(b)(2) at all.
Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U. S. C. §2000e–5(g)(2)(B)(i) and (ii) (distinguishing between declaratory and injunctive relief and the payment of “backpay,” see §2000e–

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5(g)(2)(A)).
C
In Allison v. Citgo Petroleum Corp., 151 F. 3d 402, 415 (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “incidental to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” Ibid. We need not decide in this case whether there are any forms of “incidental” monetary relief that are consistent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this standard, and in any event they cannot.
Contrary to the Ninth Circuit’s view, Wal-Mart is entitled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed remedial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay . . . or any other equitable relief as the court deems appropriate.” §2000e–5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimination, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” §2000e–5(g)(2)(A).

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Opinion of the Court

We have established a procedure for trying pattern-orpractice cases that gives effect to these statutory requirements. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings . . . to determine the scope of individual relief.” Teamsters, 431 U. S., at 361. At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the individual applicant was denied an employment opportunity for lawful reasons.” Id., at 362.
The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized proceedings. 603 F. 3d, at 625–627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U. S. C. §2072(b); see Ortiz, 527 U. S., at 845, a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent backpay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) class.

* * * The judgment of the Court of Appeals is

Reversed.

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Opinion of GINSBURG, J.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–277
_________________
WAL-MART STORES, INC., PETITIONER v.
 BETTY DUKES ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
 APPEALS FOR THE NINTH CIRCUIT

[June 20, 2011] 

JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and dissenting in part.
The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in violation of Title VII, 42 U. S. C. §2000e et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20– 27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class questions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or compensatory damages—and that a class action is “superior” to other modes of adjudication.
Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2).

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1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47.

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In so ruling, the Court imports into the Rule 23(a) determination concerns properly addressed in a Rule 23(b)(3) assessment.
I 
 A 

Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the class.”2 The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions §3.10, pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality requirement,” Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003). See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members).
A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Dictionary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved . . . [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either
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2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante, at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolution of those issues.

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of fact or of law, the resolution of which will advance the determination of the class members’ claims.3
B
The District Court, recognizing that “one significant issue common to the class may be sufficient to warrant certification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonality. See Califano v. Yamasaki, 442 U. S. 682, 703 (1979) (“[M]ost issues arising under Rule 23 . . . [are] committed in the first instance to the discretion of the district court.”).
The District Court certified a class of “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (internal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making employment decisions such as . . . promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male managerial workforce” using “arbitrary and subjective criteria.” Ibid. Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that em-
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3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting . . . questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question.

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ployees be willing to relocate.” Id., at 56a. Absent instruction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commission, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995).
Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management employees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” Id., at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” Ibid.; cf. Ledbetter v. Goodyear Tire & Rubber Co., 550 U. S. 618, 643 (2007) (GINSBURG, J., dissenting).
The District Court identified “systems for . . . promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are common to all class members.” 222 F. R. D., at 149. The selection of employees for promotion to in-store management “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Id., at 148. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Ibid.
Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. WalMart provides no standards or criteria for setting wages within that band, and thus does nothing to counter unconscious bias on the part of supervisors. See id., at 146–147.

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Opinion of GINSBURG, J.
Wal-Mart’s supervisors do not make their discretionary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed . . . corporate culture,” such as frequent meetings to reinforce the common way of thinking, regular transfers of managers between stores to ensure uniformity throughout the company, monitoring of stores “on a close and constant basis,” and “Wal-Mart TV,” “broadcas[t] . . . into all stores.” Id., at 151–153 (internal quotation marks omitted).
The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suffused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (internal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart executives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 (internal quotation marks omitted).
Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by . . . neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, con-
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4 The majority purports to derive from Teamsters v. United States, 431 U. S. 324 (1977), a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the class. Ante, at 17–18. Teamsters, the Court acknowledges, see ante, at 18, n. 9, instructs that statistical evidence alone may suffice, 431 U. S., at 339; that decision can hardly be said to establish a numerical floor before anecdotal evidence can be taken into account.

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trolled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked. Id., at 159.5 The results, the District Court found, were sufficient to raise an “inference of discrimination.” Id., at 155–160.
C
The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The practice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce disparate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of discrimination is heightened when those managers are predominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes.
The plaintiffs’ allegations resemble those in one of the
——————
5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante, at 16 (internal quotation marks omitted). In fact, his regression analyses showed there were disparities within stores. The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order.
6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musicians through auditions open to all comers. Id., at 716. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Id., at 738.

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Opinion of GINSBURG, J.
prototypical cases in this area, Leisner v. New York Tel. Co., 358 F. Supp. 359, 364–365 (SDNY 1973). In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” Id., at 365 (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” Ibid. (internal quotation marks omitted). It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own.
We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such practices are motivated by discriminatory intent but also when they produce discriminatory results. See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 988, 991 (1988). But see ante, at 17 (“[P]roving that [a] discretionary system has produced a . . . disparity is not enough.”). In Watson, as here, an employer had given its managers large authority over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion system” caused a discriminatory effect based on race. 487 U. S., at 984 (internal quotation marks omitted). Four different supervisors had declined, on separate occasions, to promote the employee. Id., at 982. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Ibid.
Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” Id., at 990–991. See also Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 657 (1989) (recognizing “the use of ‘subjective decision making’ ” as an “em-

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Opinion of GINSBURG, J.
ployment practic[e]” subject to disparate-impact attack). The plaintiffs’ allegations state claims of gender dis-
crimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the District Court adequately demonstrated that resolving those claims would necessitate examination of particular policies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s stores. Rule 23(a)(2), setting a necessary but not a sufficient criterion for classaction certification, demands nothing further.
II 
 A 

The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and promotion policies are discriminatory. See ante, at 9 (“Reciting” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not sufficient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the proposed class” that “have the potential to impede the generation of common answers.” Ante, at 9–10 (quoting Nagareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted).
The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Practice §23.23[2], p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi-
——————
7 The Court places considerable weight on General Telephone Co. of Southwest v. Falcon, 457 U. S. 147 (1982). Ante, at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in Falcon alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and

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Opinion of GINSBURG, J.
fication requires, in addition to the four 23(a) findings, determinations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is superior to other available methods for . . . adjudicating the controversy.”8
The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor Nagareda, whose “dissimi-

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failure to hire Mexican-American applicants. There were “no common questions of law or fact” between the claims of the lead plaintiff and the applicant class. 457 U. S., at 162 (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intentionally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ibid., appropriate for facially neutral practices. “[T]he only commonality [wa]s that respondent is a MexicanAmerican and he seeks to represent a class of Mexican-Americans.” Ibid. Here the same practices touch and concern all members of the class.
8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class members would create a risk of . . . inconsistent or varying adjudications . . . [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members . . . ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief . . . is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added).

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Opinion of GINSBURG, J.
larities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).9 “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623 (1997). If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3).
Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilarities” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See Amchem Products, 521 U. S., at 623, n. 19 (Rule 23(b)(1)(B) “does not have a predominance requirement”); Yamasaki, 442 U. S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual background of each claim will affect the outcome of the legal issue”). For example, in Franks v. Bowman Transp. Co., 424 U. S. 747 (1976), a Rule 23(b)(2) class of AfricanAmerican truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. Id., at 772 (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunc-

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9 Cf. supra, at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question . . . common to the members of the class” (quoting Nagareda, The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003)).

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tive] relief to the entire class.” Ibid.
B
The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class members, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante, at 15.
Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, is a practice actionable under Title VII when it produces discriminatory outcomes. 487 U. S., at 990–991; see supra, at 7–8. A finding that Wal-Mart’s pay and promotions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking individual remedies for company-wide discrimination. Teamsters v. United States, 431 U. S. 324, 359 (1977); see Albemarle Paper Co. v. Moody, 422 U. S. 405, 415–423 (1975). That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, §2000e–5(g)(2)(A) (barring backpay if a plaintiff “was refused . . . advancement . . . for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination.
* * *
The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion.

 
 For Opinion See 603 F.3d 571 , 556 F.3d 919 , 509 F.3d 1168 , 474 F.3d 1214
United States Court of Appeals, Ninth Circuit.
Betty DUKES, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine Kwapnoski, and Edith Arana, PLAINTIFFS/APPELLEES/CROSS-APPELLANTS, v.
WAL-MART STORES, INC., Defendant/Appellant/Cross-Appellee. Nos. 04-16688, 04-16720 November 29, 2004.
On Appeal from the United States District Court for the Northern District of California
Principal Brief for Wal-Mart Stores, Inc.
Paul Grossman, Nancy L. Abell, Paul, Hastings, Janofsky, & Walker LLP, 515 South Flower Street, Los Angeles, California 90071, (213) 683-6000Theodore J. Boutrous, Jr., Counsel of Record, Gail E. Lees, Paul DeCamp, Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles, California 90071, (213) 229-7000, Mark A. Perry, Araanda M. Rose, Gibson, Dunn & Crutcher LLP, One Montgomery Street, San Francisco, California 94104, (415) 393-8200
FNAttorneys for Wal-Mart Stores, Inc.
CORPORATE DISCLOSURE STATEMENT
Wal-Mart Stores, Inc. has no parent corporation and no publicly held corporation owns 10% or more of its stock.
TABLE OF CONTENTS
STATEMENT OF JURISDICTION ... 1
STATEMENT OF ISSUES ... 2
STATEMENT OF THE CASE ... 2
STATEMENT OF FACTS ... 3
SUMMARY OF ARGUMENT ... 9
STANDARD OF REVIEW ... 14
ARGUMENT ... 15
I. The District Court Altered Substantive Law In Concluding That The Class Meets Rule 23(a)'s Commonality And Typicality Requirements ... 15
A. Decentralized Decisionmaking Does Not Itself Give Rise To An Inference Of Company-Wide Discrimination And,

In Fact, Cuts Directly Against Commonality ... 17 B. Plaintiffs Did Not Adduce “Significant Proof” Of A Corporate Policy Of Discrimination ... 22 1. Statistics ... 23 2. Sociology ... 29 3. Anecdotes ... 32 II. The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Manageable ... 35 A. Wal-Mart Is Entitled To Defend Itself ... 36 1. Title VII ... 39 2. Due Process ... 45 B. Wal-Mart Is Entitled To The Same Rights As Every Other Litigant ... 49 III. The District Court Altered Substantive Law By Failing To Recognize That Monetary Relief Plainly Predominates And Concluding That The Class Meets The Requirements of Rule 23(b)(2) ... 50 A. Rule 23(b)(2) Is Inapposite On Its Face ... 51 B. Substantial Monetary Relief Predominates ... 53 1. Backpay ... 54 2. Punitive Damages ... 56 CONCLUSION ... 61
TABLE OF AUTHORITIES Cases Abram v. UPS of Am., Inc., 200 F.R.D. 424 (E.D. Wis. 2001) ... 25, 28, 32 Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ... passim Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ... 15 Anderson v. Douglas & Lomason Co., 26 F.3d 1277 (5th Cir. 1994) ... 17 Barefield v. Chevron, 1988 WL 188433 (N.D. Cal. Dec. 6, 1988) ... 58

Beck v. Boeing Co., 203 F.R.D. 459 (W.D. Wash. 2001), aff'd in relevant part, 60 Fed. Appx. 38 (9th Cir. 2003) ... 10, 23, 39 BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ... 13, 48, 49, 58 Bradford v. Sears, Roebuck & Co., 673 F.2d 792 (5th Cir. 1982) ... 20 Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) ... 39, 54 Catlett v. Mo. Highway & Transp. Comm'n, 828 F.2d 1260 (8th Cir. 1987) ... 43 Cimino v. Raymark Indus., Inc., 151 F.3d 297 (5th Cir. 1998) ... 46 City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ... 52 Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000) ... 17 Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984) ... 12, 33, 37 Cooper v. Southern Co., _ F.3d _, 2004 WL 2537436 (11th Cir. Nov. 10, 2004) ... passim Coopers &. Lybrand v. Livesay, 437 U.S. 463 (1978) ... 26, 27 Cornell v. Donovan, 51 F.3d 894 (9th Cir. 1995) ... 16 Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002), aff'd, 539 U.S. 90 (2003) ... 12, 44 Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ... 30 Degen v. United States, 517 U.S. 820 (1996) ... 45 Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001) ... 17 Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) ... passim Donaldson v. Microsoft Corp., 205 F.R.D. 558 (W.D. Wash. 2001) ... 28, 53 East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977) ... 16 EEOC v. Chicago Miniature Lamp Works, 668 F. Supp. 1150 (N.D. Ill. 1987) ... 42, 43 EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) ... 42 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ... 26 Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ... 55

Faibisch v. Univ. of Minn., 304 F.3d 797 (8th Cir. 2002) ... 52 Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595 (S.D.N.Y. 1982) ... 53 Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) ... 46 Garcia v. Veneman, 211 F.R.D. 15 (D.D.C. 2002) ... 23 Gariety v. Grant Thornton, 368 F.3d 356 (4th Cir. 2004) ... 27 Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147 (1982) ... passim Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) ... 55 Grosz v. Boeing Co., 2003 U.S. Dist. LEXIS 25341 (C.D. Cal. Nov. 7, 2003), permission to appeal granted, No. 04-55428 (9th Cir. Mar. 11, 2004) ... 43, 44 Hameed v. Bridge, Structural, & Ornamental Iron Workers, 637 F.2d 506 (8th Cir. 1980) ... 40, 42 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) ... 11, 27 Hartman v. Duffey, 19 F.3d 1459 (D.C. Cir. 1994) ... 11, 19, 28 Hawkins v. Comparet-Cassani, 251F.3dl230(9th Cir. 2001) ... 15 Hovey v. Elliott, 167 U.S. 409 (1897) ... 45 In re Bridgestone/Firestone, Inc., 288 F.3d 1012 (7th Cir. 2002) ... 35 In re Hotel Tel. Charges, 500 F.2d 86 (9th Cir. 1974) ... 60 Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1997) ... 52, 53 Kanter v. Warner-Lambert Co., 265 F.3d 853 (9th Cir. 2001) ... 57 King v. Gen. Elec. Co., 960 F.2d 617 (7th Cir. 1992) ... 34 Lemon v. Operating Eng'rs, 216 F.3d 577 (7th Cir. 2000) ... 14, 56 Lewis v. Casey, 518 U.S. 343, 349 (1996) ... 44 Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018 (9th Cir. 2003) ... 14, 15 Lott v. Westinghouse Savannah River Co., 200 F.R.D. 539 (D.S.C. 2000) ... 25 Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001) ... 44

Millsap v. McDonnell Douglas Corp., 368 F.3d 1246 (10th Cir. 2004) ... 55 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ... 52, 56, 57 Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995) ... 34 Morgan v. UPS, 380 F.3d 459 (8th Cir. 2004) ... 11, 27 Nelson v. Adams USA, Inc., 529 U.S. 460 (2000) ... 45 O'Shea v. Littleton, 414 U.S. 488 (1974) ... 53 Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) ... 9, 15, 53 Paige v. California, 291 F.3d 1141 (9th Cir. 2002), cert. denied, 537 U.S. 1189 (2003) ... 25 Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ... 39, 40, 42, 45 Probe v. State Teachers' Ret. Sys., 780 F.2d 776 (9th Cir. 1986) ... 57 Provencher v. CVS Pharm., 145 F.3d 5 (1st Cir. 1998) ... 55 Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655 (N.D. Ga. 2001) ... 20 Rhodes v. Cracker Barrel, 2002 WL 32058462 (N.D. Ga. Dec. 31, 2002), report and recommendation adopted, 213 F.R.D. 619 (N.D. Ga. 2003) ... 21 Schwarzschild v. Tse, 69 F.3d 293 (9th Cir. 1995) ... 14 Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072 (9th Cir. 1986) ... 17 Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir. 1993) ... 40, 41, 42 Sikes v. Teleline, Inc., 281 F.3d 1350 (11th Cir.), cert. denied, 537 U.S. 884 (2002) ... 48 Sperling v. Hoffman-LaRoche, Inc., 924 F. Supp. 1346 (D.N.J. 1996) ... 19 Stastny v. Southern Bell Tel & Tel. Co., 628 F.2d 267 (4th Cir. 1980) ... passim State Farm Mut Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ... passim Staton v. Boeing Co., 327 F.3d 955 (9th Cir. 2003) ... 21 Ste. Marie v. Erie R.R. Ass'n, 650 F.2d 395 (2d Cir. 1981) ... 34 Stewart v. Gen. Motors Corp., 542 F.2d 445 (7th Cir. 1976) ... 40

Szabo v. BridgeportMachs., Inc., 249 F.3d 672 (7th Cir. 2001) ... 27 Teamsters v. United States, 431 U.S. 324 (1977) ... Passim Thompson v. Am. Tobacco Co., 189 F.R.D. 544 (D. Minn. 1999) ... 53 Ticor Title Ins. Co. v. Brown, 511 U.S. 117(1994) ... 14, 54, 56 Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124 (2d Cir. 2001) ... 31 Wagner v. Taylor, 836 F.2d 578 (D.C. Cir. 1987) ... 54 Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ... 24 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ... Passim Webb v. Barnes Group, Inc., No. 3:02-CV-2716-R (N.D. Tex. July 7, 2004) ... 21 West v. Prudential Sec., Inc., 282 F.3d 935 (7th Cir. 2002) ... 31 Western Elec. Co. v. Stern, 544 F.2d 1196 (3d Cir. 1976) ... 46 White v. Ford Motor Co., 312 F.3d 998 (9th Cir. 2002) ... 48 Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th Cir. 1982) ... 55, 57 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, amended, 273 F.3d 1266 (9th Cir. 2001) ... passim Constitution U.S CONST, amend. V ... passim U.S CONST, amend. VII ... passim Statutes 28 U.S.C. § 1292(e) ... 2 28 U.S.C. § 1331 ... 1 Rules Enabling Act ... passim 28 U.S.C. § 2072(b) ... 15 Title VII of the Civil Rights Act of 1964 (as amended) ... passim

42 U.S.C. § 1981a(b)(1) ... passim
42 U.S.C. § 2000e-2(a)(1) ... 36
42 U.S.C. § 2000e-2(k) ... 18
42 U.S.C. § 2000e-5(f)(3) ... 1, 50
42 U.S.C. § 2000e-5(g) ... 36
42 U.S.C. § 2000e-5(g)(2)(A) ... 44
42 U.S.C. § 2000e-5(g)(2)(B) ... 36
42 U.S.C. § 2000e-5(g)(2)(B)(ii) ... 12, 37, 44
Rules
Fed. R. Civ. P. 23 ... passim
Fed. R. Evid. 702 ... 30
Fed.R. Evid. 1101(b) ... 30
Other Authorities
Gregory C. Chow, Tests of Equality Between Sets of Coefficients in Two Linear Regressions, Econometrica, vol. 28, no. 3, at 591 (1960) ... 26
Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. Chi. Legal F. 475 ... 18, 19
William H. Greene, Econometric Analysis (3d ed. 1997) ... 26
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 (1988) ... 40
Justin Scheck, Expert Witness, The Recorder, Oct. 28, 2004 ... 29
Wal-Mart Stores, Inc. respectfully submits that the district court's order certifying the largest employment class action in history should be vacated. The district court recognized that “no court has ever confronted a motion for class certification in an employment case of this size - or anything close to it.” ER 1193-1194. Contradicting Supreme Court precedent and decisions from inside and outside this Circuit, the court certified an elephantine class action that, if allowed to proceed, would strip both absent class members and Wal-Mart of basic due process rights. In violation of the Rules Enabling Act, the district court repeatedly, and expressly, altered substantive law in its effort to jam this case into the class action procedural device. Indeed, the court acknowledged that its approach - which it labeled “rough justice” - would allow persons who have suffered no injury to recover backpay and, potentially, punitive damages, while undercompensating others whose rights to sue individually could be foreclosed by the judgment. The district court's unprecedented, unworkable, unconstitutional, and unlawful certification order should be vacated forthwith.

STATEMENT OF JURISDICTION
The district court, which had jurisdiction over this Title VII action pursuant to 28 U.S.C. § 1331 and 42 U.S.C. § 2000e-5(f)(3), entered its class certification order on June 21, 2004. Pursuant to Federal Rule of Civil Procedure 23(f), Wal-Mart petitioned for permission to appeal on July 6, 2004, and this Court granted the petition on August 13, 2004. This Court has jurisdiction under 28 U.S.C. § 1292(e).
STATEMENT OF ISSUES
1. Did the district court err in concluding that the divergent sex-discrimination claims of the six named plaintiffs are both common to and typical of all claims that might be asserted by more than 1.5 million absent class members challenging discretionary pay and promotion decisions made locally by tens of thousands of managers at approximately 3,400 stores nationwide?
2. Did the district court err in concluding that Wal-Mart is not entitled to mount an individualized defense at any stage of the contemplated class proceedings?
3. Did the district court err in concluding that plaintiffs' claims for monetary relief, which potentially amount to billions of dollars, do not predominate over their claims for injunctive or declaratory relief, which most of the putative class members lack standing even to seek?
STATEMENT OF THE CASE
The named plaintiffs, six current or former employees of Wal-Mart, sued under Title VII, alleging a pattern and practice of intentional discrimination against women with respect to pay and promotions. ER 7. Over Wal-Mart's objection, the district court certified a class consisting of more than 1.5 million members, defined to include “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices.” ER 1220.
STATEMENT OF FACTS
1. Wal-Mart, the largest private employer in the world, operates approximately 3,400 retail stores in the United States and employs more than 1 million people. ER 1139. Wal-Mart's domestic stores, each of which includes as many as 53 departments and 170 job classifications, comprise 7 divisions, 41 regions, and more than 400 districts within those regions. ER 497-504. Wal-Mart has adopted and enforces company-wide equal employment opportunity policies to foster diversity, to ensure fair treatment for all employees, and to prohibit unlawful discrimination. ER 65 6-673.
It is undisputed that compensation and promotion decisions for hourly employees at Wal-Mart are made almost exclusively on a case-by-case, discretionary basis by local store managers in response to the particular needs of their individual stores and the vagaries of the local markets from which employees are drawn. ER 1146. As the district court explained, individual store managers “are granted substantial discretion in making salary decisions for hourly employees in their respec- tive stores” and, “[a]s with salary decisions, the parties agree that subjectivity is a primary feature of promotion decisions for in-store employees.” ER 1149, 1151.
2. The named plaintiffs are four former and two current Wal-Mart employees. They worked at different stores, at different times, in different positions. They were promoted to (and demoted from) different job classifications, disciplined for different offenses, and paid different amounts for performing different jobs. They transferred to different stores and different positions within stores, applied for different management training opportunities, and quit (or were

fired) for different reasons. They claim to have been discriminated against on the basis of sex in different ways, by different managers, in different circumstances. These are their different stories:
Edith Arana worked at the Duarte, California store from 1995 to 2001. ER 313. She began as a personnel manager, and several months later, after receiving a mixed performance review, she moved to the position of test scanner. ER 322-327. In July 1997, she applied for and received a promotion to support manager, along with a raise. ER 315-316, 328-331, 341. In July 1998, she stepped down from the support manager position because she did not wish to work the required shifts. ER 332-336. Ms. Arana claims that she expressed interest in or applied for several positions but that men were hired instead. ER 317-319. She was fired in 2001 for falsifying her time records. ER 320, 337-340.
Betty Dukes was hired as a cashier in the Pittsburg, California store in 1994. ER 376. She sought a promotion to customer service manager in April 1996 and was promoted to that position in June 1997. ER 376, 377. A series of disciplinary infractions precluded further promotions and, ultimately, led to a demotion to cashier. ER 377-378, 383-387. In 2001, she was reassigned as a greeter because unspecified injuries prevented her from performing the cashier's job. ER 379. Ms. Dukes claims that two male greeters in the same store are paid higher wages than she is. ER380.
Deborah Gunter worked part-time at a Texas store in 1993 and full-time at three California stores from 1996 to 1999. ER 402. She requested and received transfers between departments, shifts, and stores to accommodate her circumstances. ER 403-404, 406, 408. She applied for a department manager position but was not selected; she also claims that two less-qualified men were promoted over her as support manager. ER 404-407. She also claims that a supervisor made sexually explicit comments that upset her. ER 406. Her store manager made clear to the alleged harasser that harassment would not be tolerated, and Ms. Gunter's request to transfer to another store was granted. ER 411-416. About three months later, she quit after complaining about her schedule. ER 417-418.
Christine Kwapnoski has “spent most of [her] adult life” working for SAM'S CLUB stores in Missouri and California. ER432. She began work in 1986 and was allegedly denied promotion into the team leader and other management positions on several occasions before June 2001, when she was made an area manager, and March 2003, when she began management training. ER 432-433, 435. She claims that one supervisor “screamed” at her and “other female employees, but seldom did he scream at men.” ER 434. Ms. Kwapnoski also claims that some male co-workers were paid the same as she was despite her greater experience. ER435.
Cleo Page worked in 1997 and 1998 as a cashier in the Tulsa, Oklahoma store and at the return desk at the Union City and Livermore, California stores. ER 451-452. In December 1998, she “applied for and was promoted to” customer service manager; less than a year later, she was promoted to department manager. ER 452-453. A year later, she quit after being disciplined. ER 454-455. Ms. Page claims that she earned less than the male employee who managed the sporting goods department, a position for which she did not apply. ER 453-454.
Patricia Surgeson was hired as a cashier in the Vacaville, California store in 1997. ER 460. A male co-worker allegedly grabbed her buttocks and made inappropriate comments; when she complained to a supervisor, she was transferred to another department. ER 460. She sought a promotion to department manager in late 1998 and within six months was promoted to manager of the lay-away department. ER 461. Ms. Surgeson later moved to the Cash Office as a “step up,” where she claims to have learned that the man who replaced her in lay-away earned more than she had in that job. ER 462. She quit in 2001 to take a new job. ER 465-467.
3. These named plaintiffs sued Wal-Mart on behalf of a putative class of female employees who allegedly were victims of sex discrimination during their various employments at approximately 3,400 Wal-Mart stores across the country. ER 1139. The class encompasses individuals ranging from part-time entry-level hourly employees to large-store salaried managers earning well above $100,000 per year. Notwithstanding the manifold differences between and among the named plaintiffs, the district court concluded that their pay and promotion claims were repre-

sentative of those that might be asserted under Title VII by each and every female Wal-Mart store employee in the United States over a six-year period (ER 1140-1142) - more than 1.5 million women, a group that outnumbers the active duty military personnel in the Army, Navy, Marine Corps, and Air Force combined. The size of the putative class exceeds the entire population of at least 12 of the 50 States.
a. Wal-Mart submitted unrebutted evidence that there was no statistically significant evidence of gender disparity at over 90% of the stores - which on average have approximately 500 to 1,000 current and former employees within the class definition, and where well over one million class members worked - and women came out slightly ahead of their male counterparts in approximately 35-40% of the stores, although not to a statistically significant degree in most. ER 473-656. Wal-Mart also showed that there is no discernible class-wide pattern of promotion decisions adverse to women. ER 473-656. Even though decentralized decisionmaking by definition leads to highly individualized pay and promotion determinations, the district court concluded that the six named plaintiffs' dissimilar experiences could be extrapolated to millions of women at thousands of facilities across the nation. Pointing to aggregated statistics that allegedly show statistically significant gender-based discrepancies in pay and promotion, a sociologist's “conjecture” that Wal-Mart is “vulnerable” to gender bias, and a relative handful of anecdotes regarding individual instances of purported discrimination, the court held that Rule 23(a)'s commonality and typicality requirements were satisfied. See ER 1218.
b. The court acknowledged that this class “dwarfs” any previous employment class action, and is “unique” and “historic” for this reason alone. ER 1140, 1141. Nevertheless, the court concluded that the trial would not be unmanageable because plaintiffs could try to establish liability on the basis of class-wide statistics, while the court would prohibit Wal-Mart from mounting an individualized defense on either liability or remedy. ER 1196. To reach this result, the court was forced to expressly do away with the individualized defense to which employers are entitled in sex-discrimination cases \{see Teamsters v. United States, 431 U.S. 324 (1977)) on the ground that it would be “infeasible,” “virtually impossible” and “impractical on its face” given the magnitude of the class. ER 1199-1200.
c. Finally, although plaintiffs seek potentially billions of dollars in backpay and punitive damages, and more than half of the putative class is no longer employed at Wal-Mart, the district court certified the class Rule 23(b)(2) on the ground that the claims for monetary relief do not predominate over the injunctive or declaratory relief sought. ER 1191. The court recognized that, if liability were established, the case management plan contemplated in the certification order would undercompensate some plaintiffs and provide a “windfall” to others, and would punish Wal-Mart for conduct that violated no law. ER 1191-1192, 1200-1201. This, the court said, was “rough justice.” ER1201.
SUMMARY OF ARGUMENT
The Rules Enabling Act precludes district courts from altering the substantive law in order to certify a class. Ortiz v, Fibreboard Corp., 527 U.S. 815 (1999). In derogation of this fundamental principle, the court below repeatedly altered substantive law in order to force this case into the class procedural device.
I. The district court committed legal error when it failed to properly apply Rule 23(a)'s commonality and typicality requirements. Gen. Tel. Co. of the Southwest v. 457 U.S. 147 (1982).
A. According to the district court, the “common feature” binding the class members' claims was the delegation of discretion to individual store managers to make pay and promotion decisions. ER 1151. The Supreme Court, however, has explained that an employer's decision to delegate decisionmaking authority raises no inference of discriminatory conduct. Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988). As a result, a plaintiff challenging the exercise of discretion must provide, before a class can be certified, “significant proof” that the company operated under a general policy of discrimination. Because decentralized decisionmaking cuts against a finding of commonality, courts routinely deny certification in cases such as this one. E.g., Cooper v. Southern Co., - F.3d - , 2004 WL 2537436 (11th Cir. Nov. 10, 2004); Stastny v. Southern Bell Tel & Tel Co., 628 F.2d 267 (4th Cir. 1980). In fact, it appears that no other

court has ever certified a class of employees who challenge the exercise of delegated discretion at multiple facilities where there is substantial evidence that a significant portion of the class has not been subjected to discrimination.
B. Plaintiffs' statistics, sociology, and anecdotes did not satisfy their heavy burden of establishing system-wide discrimination.
1. To establish commonality in a multiple-facility case, each decisionmaking unit (e.g., each store) must display roughly the same statistical disparities. Beck v. Boeing Co., 203 F.R.D. 459 (W.D. Wash. 2001), affd in rele-vantpart, 60 Fed. Appx. 38 (9th Cir. 2003). Wal-Mart's unrebutted evidence showed that more than 90% of the stores showed no statistically significant disparities in pay. The district court ignored this evidence on the ground that it went to the “merits,” but courts may not ignore evidence that bears directly on the Rule 23 (a) requirements even though the evidence may also relate to the underlying merits of the case. Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992). Wal-Mart's store-by-store data bore directly on commonality because proof of discrimination in some districts and not others tends to defeat the argument that discrimination was the employer's nationwide standard operating procedure. Morgan v. UPS, 380 F.3d 459 (8th Cir. 2004). Thus, even if plaintiffs' statistics showed some discrimination in the system, they failed to establish that the class members suffered a common injury. Hartman v. Duffey, 19 F.3d 1459 (D.C. Cir. 1994).
2. Plaintiffs' sociologist opined that Wal-Mart was “vulnerable” to gender bias, although he “conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” ER 1227. The district court erred in failing to recognize that plaintiffs' sociological conjectures, even if admissible, confirm the lack of commonality.
3. Plaintiffs produced 113 declarations regarding individual instances of alleged discrimination. This anecdotal evidence establishes, at most, one instance of discrimination for every 13,000 putative class members., and does not provide a predicate for finding a company-wide policy of discrimination. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984).
II. To conclude that maintenance of this class action would not be unmanageable, the district court had to strip Wal-Mart of its right to present evidence showing no discrimination occurred at particular stores or against specific individual claimants, in violation of Title VII, the Rules Enabling Act, and due process.
A. The Supreme Court has long recognized that an employer is entitled to show that each challenged employment decision was not the product of discrimination. Teamsters v. United States, 431 U.S. 324 (1977). The 1991 amendments to Title VII reinforced this mandate. 42 U.S.C. § 2000e-5(g)(2)(B)(ii); Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002) (en bane), aff'd, 539 U.S. 90 (2003). The district court, however, erroneously eliminated this basic requirement, declaring that Wal-Mart “is not... entitled to circumvent or defeat the class nature of this proceeding by litigating whether every individual store discriminated against individual class members.” ER 1196.
1. The court recognized that individualized Teamsters hearings would not be feasible and would render the class unmanageable, so it decided to do away with this requirement of substantive Title VII law for the sole purpose of certifying a class, in violation of the Rules Enabling Act. The so-called “formula” cases cited by the district court as authority for dispensing with Teamsters hearings in fact contemplated that such hearings would occur. E. g., Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984).
2. Moreover, Wal-Mart has a due process and Seventh Amendment right to individualized determinations, particularly as to punitive damages. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003).
B. The district court was of the view that Title VII contains no “exception” for large employers such as Wal-Mart, but that is not the point. Large corporate defendants are just as entitled to the protections of substantive law, including due

process, as are other litigants. BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996). That is all Wal-Mart is seeking.
III. The district court certified this class under Rule 23(b)(2), which applies “only where the primary relief sought is declaratory or injunctive.” Zinser v. Ac-cufix Research Inst., Inc., 253 F.3d 1180, amended, 273 F.3d 1266 (9th Cir. 2001). Since plaintiffs seek potentially billions of dollars in backpay and punitive damages, (b)(2) certification was improper.
A. Rule 23(b)(2) applies only where the defendant has acted in a manner “generally applicable to the class.” The evidence establishes that, if anything, any discrimination that may have occurred was not system-wide, and instead was sporadic and varied widely.
B. The Supreme Court has recognized the substantial possibility that actions seeking monetary damages are only certifiable under Rule 23(b)(3). Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994). The district court failed to heed the due process implications of its (b)(2) certification.
1. The district court characterized plaintiffs' backpay claims as “equitable,” and on that basis reasoned that these claims “predominated” over the punitive damages claims. Rule 23(b)(2) does not, however, apply to all “equitable” relief; rather, it applies only to claims for “declaratory” or “injunctive” relief. Backpay is neither, but rather constitutes monetary relief that cuts against (b)(2) certification.
2. Plaintiffs' claim for punitive damages is also wholly inconsistent with (b)(2) certification. Both Title VII and due process require a fact-specific inquiry into the circumstances of each plaintiff before such punishment may be imposed. State Farm, supra; see Lemon v. Operating Eng'rs, 216 F.3d 577 (7th Cir. 2000); 42 U.S.C. § 1981a(b)(1).
STANDARD OF REVIEW
The district court's order presents issues of law subject to de novo review. Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995) (“We review the district court's interpretation of [Rule 23] de novo”). While this Court “reviewfs] a district court's decision regarding class certification for an abuse of discretion” (Lier- boe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 n.5 (9th Cir. 2003)), “[a] court abuses its discretion if its certification order is premised on legal error.” Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1237 (9th Cir. 2001).
ARGUMENT
The most fundamental principle of class-action litigation is that a court may not “abridge, enlarge, or modify any substantive right” in order to certify a class. 28 U.S.C. § 2072(b). The Supreme Court has repeatedly emphasized that this command of the Rules Enabling Act is a binding constraint on the purely procedural class action device. Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612-13 (1997). Yet the district court repeatedly altered the substantive law - the express requirements of both Title VII and the Constitution, as authoritatively construed by the Supreme Court - solely for the purpose of certifying the largest employment class action in history.
I. The District Court Altered Substantive Law In Concluding That The Class Meets Rule 23(a)'s Commonality And Typicality Requirements
“[A] Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982). Because “actual, not presumed, conformance with Rule 23(a)” is an “indispensable” prerequisite to class certification, a district court commits re- versible error if it “fail [s] to evaluate carefully the legitimacy of

the named plaintiffs plea” that the Rule 23 (a) requirements are met. Id. at 160, The district court's order, albeit prolix, establishes that the court failed to engage in the “rigorous analysis” mandated by Falcon and Rule 23 by glossing over the widely divergent claims of the named plaintiffs and 1.5 million class members, altering the substantive law, and trampling on Wal-Mart's due process rights instead of recognizing the impossibility and unfairness of litigating these claims in a single, massive class action.
The core prerequisites to class certification imposed by Rule 23(a) are commonality and typicality, which “tend to merge.” Falcon, 457 U.S. at 157 n.13. These requirements ensure that the class representatives possess the same interests, and have suffered the same alleged injuries, as the absent class members and thus are qualified to bring claims on behalf of the whole group. East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395,403 (1977). They are not mere technicalities, but rather ensure that a federal court has Article III jurisdiction to adjudicate the claims of absent parties. See Cornett v. Donovan, 51 F.3d 894, 897 n.2 (9th Cir. 1995). Here, the six named plaintiffs failed to establish that they can represent more than 1.5 million others.
A. Decentralized Decisionmaking Does Not Itself Give Rise To An Inference Of Company-Wide Discrimination And, In Fact, Cuts Directly Against Commonality
The district court accepted plaintiffs' theory that the millions of pay and promotion decisions made by tens of thousands of Wal-Mart managers were connected by the “common feature” of “a broad range of discretion.” ER 1151. The court's decision contradicts both substantive Title VII law and Rule 23(a)'s commonality requirement.
The Supreme Court has stated that “an employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988); see also Sengupta v. Morrison-Knudsen Co., 804 F.2d 1072, 1075 (9th Cir. 1986) (“the use of subjective employment criteria is not unlawful per se”); Coleman v. Quaker Oats Co., 232 F.3d 1271, 1285 (9th Cir. 2000) (“subjective evaluations are not unlawful per se and ‘their relevance to proof of discriminatory intent is weak’ “) (citations omitted); Denney v. City of Albany, 247 F.3d 1172, 1186 (11th Cir. 2001) (“an employer's use of subjective factors in making a hiring or promotion decision does not raise a red flag”); Anderson v. Douglas &Lomason Co., 26 F.3d 1277, 1284 (5th Cir. 1994) (“the use of subjective or discretionary decision-making does not itself create an inference of discriminatory conduct”). This is because it is often “quite reasonable” for a com- pany to delegate decisionmaking responsibility. Watson, 487 U.S. at 990. The discretion afforded to individual Wal-Mart store managers allows them to set wages at their respective stores in light of what other employers in the relevant labor markets offer similarly skilled workers. For example, if persons with specific knowledge and skills command a premium wage in particular markets, store managers in those markets have discretion to meet the competition. ER 570-576.
In light of these considerations, basing a class action on an alleged “practice” of decentralized, discretionary decisionmaking is difficult, and private plaintiffs asserting such a theory have a substantial evidentiary obstacle at the certification stage: “Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class... if the discrimination manifested itself in hiring and promotion decisions in the same general fashion, such as through entirely subjective decisionmaking processes.” Falcon, 457 U.S. at 159 n.15 (emphases added).[FN1] Plaintiffs thus bore the burden of adducing, before the class could be certified, “significant proof” that Wal-Mart used discretionary deci-sionmaking to further a corporate policy of sex discrimination. Hartman v. Duf-fey, 19 F.3d 1459, 1472 (D.C. Cir. 1994) (plaintiff must show that discrimination “pervaded all of the employer's challenged employment decisions”); Cooper v. Southern Co., - F.3d -, 2004 WL 2537436, at *14 (11th Cir. Nov. 10, 2004) (plaintiffs must show that discrimination sustained was “part of an overarching pattern and practice of intentional discrimination”). Decentralized, discretionary decisionmaking is not inherently discriminatory, nor does it affect all employees in the same way.
FN1. It is far from clear that the delegation of discretion to local managers to make pay and promotion decisions even constitutes a “practice” that may be challenged under Title VII. See Watson, 487 U.S. at 994

(plurality opinion) (“The plaintiff must begin by identifying the specific employment practice that is challenged,” which may be “difficult when subjective selection criteria are used”); cf. 42 U.S.C. § 2000e-2(k). It is more logically viewed as a policy that permits many different practices at the local level. See Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. Chi. Legal F. 475, 508-09.
The district court was therefore plainly wrong when it said that “the fact that Wal-Mart's compensation and promotion policies consistently permit managers to utilize a great deal of subjectivity. supports a finding of commonality.” ER 1154 (emphasis added). The delegation of discretion itself is insufficient to meet plaintiffs' burden of proof. See Sperling v. Hoffman-LaRoche, Inc., 924 F. Supp. 1346, 1363 (D.N.J. 1996) (“a decision by a company to give managers the discretion to make employment decisions, and the subsequent exercise of that discretion by some managers in a discriminatory manner, is not tantamount to a decision by a company to pursue a systematic, companywide policy of intentional discrimination, i.e., a pattern or practice of discrimination”). On the contrary, decentralized decisionmaking “cuts against” an inference of commonality. Stastny v. Southern Bell Tel Co., 428 F.2d 267, 279 (4th Cir. 1980); see also, e.g., Reid v. Lockheed Martin Aeronautics Co., 205 F.R.D. 655, 670 (N.D. Ga. 2001) (“Plaintiffs' theory is that Defendants had a centralized policy of decentralization, which is insufficient on these facts to satisfy commonality or typicality with respect to Plaintiffs' proposed multi-facility classes”).
It is undisputed that the pay and promotion decisions at issue are made by local managers exercising significant discretion and that one local manager's decisions will not affect employees in other stores or districts. Even within stores, there are many different departments, most if not all with their own local sub-market in terms of pay scale, competition, experience among employees, and levels of required expertise. ER 570-576. Plaintiffs failed to demonstrate that despite these overwhelming differences, the 1.5 million class members each shared a common experience of discrimination. Bradford v. Sears, Roebuck & Co., 673 F.2d 792, 794-96 (5th Cir. 1982) (district court's failure to consider the defendant's evidence of different decisionmaking practices at different facilities was re- versible error). To the contrary, as shown below, the statistics here demonstrate that any pay disparity was localized in fewer than 10% of the stores nationally.
As the Eleventh Circuit recently recognized, “[w]here, as here, class certification was sought by employees working in widely diverse job types, spread throughout different facilities and geographic locations, courts have frequently declined to certify classes.” Cooper, 2004 WL 2537436, at *13; see also, e.g., Rhodes v. Cracker Barrel, 2002 W L 32058462, at *58 (N.D. Ga. Dec. 31, 2002) (collecting 20 decisions denying certification where plaintiffs brought discrimination claims attacking decentralized decisionmaking), report and recommendation adopted, 213 F.R.D. 619 (N.D. Ga. 2003); Webb v. Barnes Group, Inc., No. 3:02-CV-2716-R (N.D. Tex. July 7, 2004) (denying certification where salary decisions were “made by at least 75 supervisors and managers”) (copy of decision included in appendix). Cf. Staton v. Boeing Co., 327 F.3d 955 (9th Cir. 2003) (commonality is not defeated if there is some evidence of local discretion in otherwise centralized employment practices).
The district court tried to sidestep the obvious lack of commonality inherent in plaintiffs' theory of the case by stating that “the focal point will be the practice of utilizing excess subjectivity, rather than the facts concerning each individual decision.” ER 1156. By definition, however, the so-called “practice” of “subjective” decisionmaking affects each individual differently, and undoubtedly bene- fited many individual class members whose managers exercised their discretion regarding pay and promotions based on wholly legitimate factors. Accordingly, Wal-Mart's delegation of discretion to local managers cannot establish, standing alone, that Wal-Mart engaged in an “employment pattern, practice or policy that demonstrably affects all members of a class in substantially, if not completely, comparable ways.” Stastny, 628 F.2d at 273; see also Cooper, 2004 WL 2537436, at *14. The district court's contrary conclusion is literally unprecedented: This case marks the first time in history that a court has certified a class of employees who challenge the exercise of delegated discretion at multiple facilities where, as discussed in more detail below, there is substantial, unrebutted evidence that a significant number of class members at a significant number of facilities were not subject to discrimination.
B. Plaintiffs Did Not Adduce “Significant Proof” Of A Corporate Policy Of Discrimination

In an effort to carry their burden of establishing commonality, plaintiffs relied on three categories of “evidence”: statistics, sociology, and anecdotes. The district court found this sufficient, stating that “where, as here, such subjectivity is part of a consistent corporate policy and supported by other evidence giving rise to an inference of discrimination... commonality is satisfied.” ER 1154. The court was wrong.
1. Statistics
“[Statistical data showing comparable disparities in treatment experienced by protected employees at a sufficient number of the separate facilities” “might conceivably” lead to an “inference that it reflects a system-wide policy or practice.” Stastny, 628 F.2d at 278. To establish commonality on a company-wide basis in a multiple-facility case, each decisionmaking unit - here, each Wal-Mart store or department - must exhibit comparable statistical disparities, and there certainly cannot be wide variations among the units. Beck v. Boeing Co., 203 F.R.D. 459, 464 (W.D. Wash. 2001), aff'd in relevant part, 60 Fed. Appx. 38 (9th Cir. 2003); Garcia v. Veneman, 211 F.R.D. 15, 22 (D.D.C. 2002).
Even though their theory of the case attacks the delegation of discretion to local managers at the individual store level, plaintiffs' experts opined that, when aggregated to a regional or nationwide basis, sex-based disparities in pay and promotion were statistically significant. ER 70-161, 162-287. The court concluded that plaintiffs' aggregated data raised an “inference” of system-wide discrimination in pay and promotions. ER 1172.
Wal-Mart's expert opined that, when measured on a store-by-store basis, there was no statistically significant evidence of discrimination at the vast majority of stores. In particular, “more than 90% of the stores had no pay rate differences between men and women that were statistically significant.” ER 473-655. The Supreme Court has cautioned courts in employment cases to focus on the statistically significant data. See, e.g., Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-55 (1989). At the more than 90% of stores exhibiting no statistically significant gender disparities, the data do not show trends favoring either men or women on a consistent basis. ER 579-580. Female employees fared slightly better than their male counterparts at approximately 35-40% of Wal-Mart's stores, and males fared slightly better at approximately 53% of the stores, although these results are, in effect, within the statistical margin of error and thus do not indicate meaningful disparities in either direction. ER 579-580, 581-582.
Plaintiffs and their experts did not rebut Wal-Mart's showing that the disaggregated data establish that there is no statistically significant evidence of discrimination at the vast majority (more than 90%) of Wal-Mart stores. The district court, however, simply ignored this unrebutted evidence.
The court said that it would not resolve a “battle of the experts” or referee any “statistical dueling” between the parties' experts. ER 1144, 1163, 1168, 1170. Whatever the merits of that position in the abstract, it has no application in this case. Cf. Cooper, 2004 WL 2537436, at * 11 & n.l 1 (“the district court would have erred if it had certified a class without first determining that the named plaintiffs had claims common to those of the unnamed class members”). The record before the district court established, as a matter of unrebutted fact, that if the data are examined on a store-by-store basis - and these are large stores that provide an ample sample size - no statistically significant disparities exist at more than 90% of the locations. Plaintiffs' aggregated statistics attempted to obscure this fact, which is critical to the certification decision. Cf. Abram v. UPS of Am., Inc., 200 F.R.D. 424, 431 (E.D. Wis. 2001) (“If Microsoft founder Bill Gates and nine monks are together in a room, it is accurate to say that on average the people in the room are extremely well-to-do, but this kind of aggregate analysis obscures the fact that 90% of the people in the room have taken a vow of poverty”).
With respect to the statistical evidence of discrimination, the material dispute was not primarily factual (or statistical), but legal: Should the data be examined on an aggregated basis or not? That is a foundational question of law that the district court was obligated to answer before proceeding to decide the certification motion. In particular, this Court has made clear that the use of “aggregated statistical data” is appropriate only “where it is more probative than subdivided

data.” Paige v. California, 291 F.3d 1141, 1148 (9th Cir. 2002), cert, denied, 537 U.S. 1189 (2003). Plaintiffs, as the proponents of the aggregated data, bore the burden of showing that it was more probative than the store-by-store data proffered by Wal-Mart. Lott v. Westinghouse Savannah River Co., 200 F.R.D. 539, 560-61 (D.S.C. 2000); Abram, 200 F.R.D. at 431. This they manifestly failed to do.
Moreover, Wal-Mart's expert confirmed that substantial variability among stores precludes aggregating at the nationwide level. She demonstrated that plaintiffs' evidence failed the Chow statistical test, which plaintiffs' expert inexplicably failed to apply and which in effect examines the sameness of data sets to determine whether they can properly be aggregated for analysis. ER 473-655, 1165; Gregory C. Chow, Tests of Equality Between Sets of Coefficients in Two Linear Regressions, Econometrica, vol. 28, no. 3, at 591 (1960); William H. Greene, Econometric Analysis 349 (3d ed. 1997). Even the statistics at the regional level did not show a consistent pattern. ER 1173. It is an error of law not to use the Chow test, or some other statistical test, where there is evidence that aggregation of statistics masks relevant dissimilarities.
The district court did not make the required finding that plaintiffs' aggregated statistics were more probative than Wal-Mart's store-by-store analysis. Rather, the court concluded that Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), precluded any examination of the “merits” at the certification stage, including Wal-Mart's challenge to plaintiffs' use of aggregated statistics. ER 1143, 1159-1160, 1163. That is clearly incorrect: The Supreme Court has declared that “[e] valuation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims.” Coopers & Ly- brand v. Livesay, 437 U.S. 463, 469 n.12 (1978) (citation omitted); see also Cooper, 2004 WL 2537436, at *10.
Numerous decisions recognize that the commonality determination, in particular, requires careful evaluation of the evidence presented by both sides before a class can be certified. See, e.g., Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 674-77 (7th Cir. 2001); Gariety v. Grant Thornton, 368 F.3d 356, 365-67 (4th Cir. 2004); Cooper, 2004 WL 2537436, at *14 & n.11. As this Court has explained, “we are ‘at liberty to consider evidence which goes to the requirements of Rule 23 even though the evidence may also relate to the underlying merits of the case.’ “Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir. 1992) (citation omitted). Simply put, a court may not forego the “rigorous analysis” required by Falcon merely because some evidence that bears directly on that analysis also goes to the merits.
More fundamentally, the district court altered the substantive law by ignoring the store-by-store evidence of extensive non-discrimination. As the Eighth Circuit recently explained, “proof of discrimination in some districts and not others tends to defeat the argument that discrimination was [the employer's] nationwide standard operating procedure.” Morgan v. UPS, 380 F.3d 459, 464 (8th Cir. 2004) (emphasis added). The Fourth Circuit has also confronted precisely this problem, and has explained that “[i]f facility concentrated discrimination” is the “reality behind the system-wide statistical disparities,” then to infer system-wide discrimination “has the forbidden effect of using the procedural device of Rule 23 to abridge the defending party's substantive rights” because “the inferred commonality completely alters the proof burdens and indeed the very substantive elements of claim and defense that would apply” in individual actions. Stastny, 628 F.2d at 280 n.20. The district court's decision cannot be reconciled with this clear statement of established law, a rule the court simply overlooked.
The key point for purposes of class certification is that even if the statistical evidence proffered by plaintiffs would allow for an inference of some discrimination, it does not permit - let alone require - the additional inference that such discrimination was practiced uniformly and resulted in common injuries to over 1.5 million women throughout the Wal-Mart system. Hartman, 19 F.3d at 1472 (although “plaintiffs' statistics may have demonstrated that discrimination... was afoot, nothing in the record so far permits the additional inference that class members suffered a common injury”); see also Donaldson v. Microsoft Corp., 205 F.R.D. 558, 567 (W.D. Wash. 2001) (“The burden is on plaintiffs to establish a class-wide pattern of discrimination, and plaintiffs' own statistics belie the existence of such a pattern”); Abram, 200 F.R.D. at 431 (“The lack of any consistent pattern belies the notion that class members have been affected in common ways by the supposed ‘practice’ of ‘subjective decision-making”’). As a matter of law, that additional

inference cannot be made in the face of Wal-Mart's store-by-store evidence.
2. Sociology
The district court asserted that Wal-Mart “relies on its strongly imbued culture to guide managers in the exercise of their discretion” - although the court was of the view that it “would be premature and inappropriate... to determine the precise degree to which the forms of centralized control at Wal-Mart keep managerial discretion in check.” ER 1159. In this regard, the district court simply ignored Wal-Mart's actual company-wide policies, which prohibit discrimination and encourage equal opportunity. ER 1160-1161.
Unable to identify any discriminatory policy at Wal-Mart, plaintiffs put forth a sociologist, William Bielby, who opined that Wal-Mart “employees achieve a common understanding of the company's way of conducting business.” ER 291. He could not say that this “way” was discriminatory, nor could he opine that this “common understanding” actually causes discrimination. Instead, Bielby's opinion was only that Wal-Mart is “vulnerable to” bias or gender stereotyping. ER 289, 293, 295, 296. Such vulnerability, it appears, is not unique to Wal-Mart, as Bielby has leveled the same charge against a host of other companies (see Justin Scheck, Expert Witness, The Recorder, Oct. 28, 2004, at 6) based on a simplistic assumption that all people are vulnerable to stereotyping to some unde- fined extent. Far from testifying that Wal-Mart's supposed “vulnerability” was common or typical, “Bielby conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” ER 1227. Yet the district court said that his testimony was enough to “raise[] an inference of corporate uniformity and gender stereotyping that is common to all class members.” ER 1162.
Wal-Mart moved to strike Bielby's declaration as not meeting the standards for expert testimony established by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rule of Evidence 702. The court acknowledged that Bielby's opinions involve “conjecture” and do not result in “a quantifiable analysis,” but dismissed those concerns as inherent in “the nature of this particular field of science.” ER 1162. The court expressly refused to “apply the full Daubert ‘gatekeeper’ standard at this stage,” concluding that “a lower Daubert standard should be employed.” ER 1225.
The district court's refusal to apply Daubert was erroneous and stands as yet another example of the court's twisting the substantive law in furtherance of the procedural class action device. Daubert sets the standard for the admissibility of evidence in federal court. If Bielby's “opinion” is not admissible - and Wal-Mart submits that it is not - then it may not be relied upon to sustain a certification order. See Fed. R. Evid. 1101(b). In other words, if the jury would not be entitled to hear Bielby testify - again, as Wal-Mart submits that it would not - then his declaration is worthless to plaintiffs. The district court's failure to apply this elementary principle is grounds for reversal. See Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 135 (2d Cir. 2001) (“A district court [deciding a class certification motion] must ensure that the basis of the expert opinion is not so flawed that it would be inadmissible as a matter of law”); Cooper, 2004 WL 2537436, at *10 (“before a district court determines the efficacy of class certification, it may be required to make an informed assessment of the parties' evidence”); West v. Prudential Sec., Inc., 282 F.3d 935, 938 (7th Cir. 2002) (“A district judge may not duck hard questions by observing that each side has some support, or that considerations relevant to class certification also may affect the merits. Tough questions must be faced and squarely decided, if necessary by holding evidentiary hearings and choosing between competing perspectives.”).
Moreover, even assuming arguendo that Bielby's opinion is admissible, the fact that Wal-Mart might be “vulnerable” to gender stereotypes does not answer the question of commonality. The question would remain how (if at all) and through whom (if anyone) that vulnerability manifested itself; Bielby's theories say nothing about these critical issues. Certainly, he did not attempt to overcome the unrebutted evidence that there is no statistically significant disparity at more than 90% of the stores. To the extent Bielby's testimony is informative at all, Wal-Mart's store-by-store evidence confirms that the supposed vulnerability resulted in actual discrimination, if at all, at only a small percentage of stores. This evidence, like the rest, cuts against commonality.

3. Anecdotes
The court also looked to plaintiffs' “anecdotal evidence” of discrimination, in the form of declarations from 113 class members. ER 1180-1181. The court said that these anecdotes further supported an inference that Wal-Mart's “policies and procedures have the effect of discriminating against Plaintiffs in a common manner.” ER1181.
The court, however, cited just three declarations in support of its conclusion that the anecdotal evidence supported a commonality determination. Even if three managers allowed bias to infect their decisions, as these declarants allege, the resulting discrimination is one step removed from the company's decision to delegate discretion to those managers. Abram, 200 F.R.D. at 430. None of the declarations submitted by plaintiffs even attempts to establish a common, company-wide policy of discrimination as distinct from individualized allegations of purportedly (and almost entirely unsubstantiated) discriminatory acts. Wal-Mart submitted declarations from female employees that refute the notion of such a company-wide policy. ER 1095-1100, 1101-1105, 1106-1116, 1117-1123, 1124-1131, 1132-1136, 1088-1094.
In fact, a substantial number of the declarations submitted by plaintiffs, even if accepted as entirely truthful, fail to make out even a prima facie case of sex discrimination. See, e.g., ER 297-208, 345-347, 351-370, 388-392, 393-400, 437-443, 444-449, 468-472. The remaining declarations depict a relative handful of widely divergent, and in many instances entirely unique, events that occurred in the context of billions of hours of workplace activity by millions of employees over several years across the nation. These declarations hardly can be deemed representative or probative of discrimination in pay or management-track promotion. See, e.g., ER 456-458 (mentoring), 428-430 (quid pro quo sexual harassment), 424-426 (pregnancy discrimination), 343 (denial of departmental transfer), 349 (exclusion from operating forklifts), 420-421 (difficulty transferring to hardware department), 372-373 (assignment to undesirable location), 310-311 (assignment to undesirable shift). If anything, the limited number of disparate anecdotes adduced by the named plaintiffs establishes a lack of commonality among the putative class members' experiences and claims and defeats certification.
“[A] class plaintiff's attempt to prove the existence of a companywide policy, or even a consistent practice within a given department, may fail even though discrimination against one or two individuals has been proved.” Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 878 (1984). In Cooper, the Court held that anecdotal evidence from three employees was not sufficient to support a claim of discrimination on behalf of a few hundred employees. Yet here, the district court cited just three anecdotal declarations to sustain a class of more than 1.5 million employees. In this regard as well, the district court's decision is literally unprecedented.
Plaintiffs' declarations, from 113 class members, represent less than 1/100th of one percent of the class of at least 1.5 million women, and make anecdotal claims of discrimination in only about three percent of Wal-Mart's 3,400 stores. Plaintiffs' evidence, in other words, shows at most one instance of discrimination for every 13,000 class members - yet courts have routinely found a lack of commonality even with many more anecdotes as a percentage of the class. In Mooney v. Aramco Services Co., 54 F.3d 1207 (5th Cir. 1995), for example, the court held that ten individualized instances of discrimination were insufficient to support a class of just 154 employees, because “[tjestimony of anecdotal witnesses with different supervisors, working in different parts of the company was simply too attenuated.” Id. at 1221. A fortiori., the individualized instances of discrimination advanced by plaintiffs here establish at most “isolated, sporadic discrimination” and cannot suffice to establish commonality or typicality. King v. Gen. Elec. Co., 960 F.2d 617, 625 (7th Cir, 1992); see also, e.g., Ste. Marie v. Erie R.R. Ass'n, 650 F.2d 395, 406 (2d Cir. 1981) (seven anecdotal instances insufficient to support pattern or practice claim in class of several hundred).
Like the rest of their evidence, plaintiffs' anecdotes establish no more than the possibility of discrimination at a limited number of individual stores - a possibility that exists in any institution of this size, no matter how hard it tr ies to prohibit discrimination. None of this evidence amounts to the “significant proof” of a company-wide policy that is an

absolute prerequisite, under both Rule 23 (a) and substantive Title VII law, to class certification. Falcon, 457 U.S. at 159 n.15.
II. The District Court Eliminated Wal-Mart's Defenses And Otherwise Altered Substantive Law In Concluding That The Class Is Manageable
The district court acknowledged that “no court has ever confronted a motion for class certification in an employment discrimination case of this size - or anything close to it.” ER 1193-1194. The court nonetheless concluded that this action presents no problems of manageability. To do so, the court repeatedly denied Wal-Mart its substantive defenses - which, if employed, would concededly render the class unmanageable. ER 1205. It could not be more clear that the district court's certification violates the Rules Enabling Act's prohibition against “abridging], enlarging], or modify [ing] any substantive right.” The court's remaking of substantive law in order to render this case manageable for class treatment mandates reversal. In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1020 (7th Cir. 2002) (“Tempting as it is to alter doctrine in order to facilitate class treatment, judges must resist so that all parties' legal rights may be respected”).
A. Wal-Mart Is Entitled To Defend Itself
Under Title VII, it is 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)(l). An employee who has been discriminated against may obtain a declaration to that effect as well as an injunction against further discrimination. Id. § 2000e-5(g). An employee may also seek monetary relief, including compensatory damages and backpay, unless the employer demonstrates that it “would have taken the same action in the absence of the impermissible motivating factor.” Id. § 2000e-5(g)(2)(B). Finally, an employee may seek punitive damages upon a showing that the employer acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. § 1981a(b)(l).
A class action challenging a so-called “pattern or practice” of discrimination typically proceeds in two stages: At the first stage, the plaintiffs must prove that “discrimination was the company's standard operating procedure.” Teamsters, 431 U.S. at 336. If the plaintiffs carry their burden at the first stage, a rebuttable presumption arises that each class member is entitled to appropriate relief. Id. at 361. During the second stage of a pattern or practice trial, “a district court must usually conduct additional proceedings... to determine the scope of individual relief by affording the employer the opportunity “to demonstrate that the individual... was denied an employment opportunity for lawful reasons.” Id. at 361-62; see, e.g., Cooper, 467 U .S. at 876 (following a finding of pattern or practice discrimination “additional proceedings are ordinarily required to determine the scope of individual relief for the members of the class”); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 421 (5th Cir. 1998) (“The second stage of apattern or practice claim is essentially a series of individual lawsuits, except that there is a shift of the burden of proof in the plaintiff's favor”).
Given the widely diverging experiences of the named plaintiffs, of the other declarants, and (presumably) of the 1.5 million absent class members, an individualized examination of a class member's individual employment experience is required before Wal-Mart can be adjudged to have discriminated against her and or-dered to pay damages. The Supreme Court recognized as much in Teamsters, and the 1991 amendments to Title VII codified this principle. 42 U.S.C. § 2000e-5(g)(2)(B)(ii) (precluding monetary relief or reinstatement for employee where employer demonstrates it would have taken same action in absence of impermissible motive). The district court recognized, however, that “holding individual hearings for the number of women potentially entitled to backpay in this case is impractical on its face, and thus the traditional Teamsters mini-hearing approach is not feasible here.” ER 1199; see ER 1205 (“Plaintiffs concede [that] such additional proceedings would be unmanageable in this case”). Instead of denying certification, however, the court decided to strip Wal-Mart of its right to defend itself in order to serve the class action device.

The court said that plaintiffs' evidence “should properly focus on matters relevant to the class as a whole, such as statistical analysis and evidence of system-wide policies and practices,” and that “defendants are expected to respond to plaintiffs' pattern and practice claim on a class-wide basis.” ER 1195. Wal-Mart “is no more entitled to 3,244 individual store-by-store trials than it would be enti-tled to try each class member's individual claim in a case of smaller scope,” the court maintained, adding that Wal-Mart “is not... entitled to circumvent the class nature of the proceeding by litigating whether every individual store discriminated against individual class members.” ER 1196. The court decided that, if Wal-Mart were found liable for discriminating against the class based on the plaintiffs' aggregated statistics, the court could simply use a “formula” to determine the total amount of backpay and punitive damages (to be distributed pro rata in proportion to claimants' backpay awards) owed by Wal-Mart to the class as a whole, without regard to whether recipients were victims of discrimination. See ER 1199-1203. It then proposed appointing a special master to identify the actual or potential dis-criminatees, using “objective” evidence captured in Wal-Mart's personnel database (which, the court acknowledged, lacks relevant information such as prior experience, ER 1213), and to distribute monetary relief to those persons with “no need for the defendant to participate further in the issue of which class members are eligible to share in the award.” ER 1203, 1211-1215.
The unprecedented procedures adopted by the district court, which would effectively deprive Wal-Mart of its right of defense, cannot be squared with governing substantive law, including the mandates of due process. The court erred in elevating the class procedure over Wal-Mart's substantive rights. “That this shortcut was necessary in order for this suit to proceed as a class action should have been a caution signal to the district court that class-wide proof of damages was impermissible.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 343 (4th Cir. 1998); see also Beck, 203 F.R.D. at 467 (“The Court is at a loss to fashion a method of arriving at [backpay] without individualized hearings into the specific circumstances of each person's employment”).
1. Title VII
In dispensing with Teamsters hearings, the district court purported to rely on a handful of stale cases in which courts determined that when it is difficult to identify precisely which claimants would have been hired or promoted absent demonstrated discrimination, each class member's damages may be approximated using an appropriate formula. See, e.g., Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 261-62 (5th Cir. 1974). None of these cases supports the district court's approach here.
Pettway addressed only the determination of a total backpay amount to be shared among actual victims of discrimination; the court “did not suggest that a class-wide procedure would eliminate the need for each class member to establish that she was a victim.” 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). In fact, Pettway explicitly recognized that the employer would have an opportunity to challenge particular class members' entitlement to backpay. 494 F.2d at 259-60 (employer must be allowed to show “that other factors would have prevented his transfer regardless of the discriminatory employment practices”). Tellingly, the same court that decided Pettway has held that individualized hearings are a requirement in cases with punitive damages claims. Allison, 151 F.3d at 418. Other so-called “formula” cases cited by the district court as ostensible authority for dispensing with Teamsters hearings also provided that such hearings would, in fact, occur. See, e.g., Hameed v. Bridge, Structural, & Ornamental Iron Workers, 637 F.2d 506, 518-22 (8th Cir. 1980); Stewart v. Gen. Motors Corp., 542 F.2d 445, 452-53 (7th Cir. 1976).
The district court's heavy reliance on Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993), as support for the elimination of Teamsters hearings (see ER 1214), is revealing. In Shipes, the employer waived individualized hearings regarding liability or the amount of monetary relief, and in fact argued for “class- wide monetary relief and for each class member to receive a “pro rata share of a pre-determined total monetary award.” 987 F.2d at 316. The plaintiffs in Shipes, on behalf of a class of approximately 350 employees from two interrelated facilities in the same city, likewise did not argue that there should be individualized liability determinations. Instead, they sought - and the district court there ordered - individualized evaluations regarding the amount of monetary relief. Id. at 315-16. The Fifth Circuit affirmed, and in doing so emphasized that “only those individuals who have suffered a loss of pay because of the

illegal discrimination are entitled to compensation” and that “Title VII does not require a remedy for those not discriminated against.” Id. at 318. Shipes is thus contrary to the district court's ruling.
This Court's decision in Domingo v. New England Fish Co., 727 F.2d 1429, 1435 (9th Cir. 1984), also conflicts with the district court's approach. In Domingo, the Court found that the “lack of objective hiring criteria and use of word-of-mouth recruitment” made it difficult for individual class members to show eligibility and damages. Accordingly, Domingo stated in dictum that class-wide statistics could be used to show discrimination and that it would be sufficient for each individual class member to demonstrate eligibility by simply showing quali-fication. 727 F.2d at 1444. The Court made clear, however, that the use of a formula was only to facilitate the calculation of “the measure of backpay.” Id. (quot- ing Pettway, 494 F.2d at 261) (emphasis added). The employer would then have “the burden of proving that the applicant was unqualified or showing some other valid reason why [a particular] claimant was not, or would not have been, acceptable.” Id. at 1445 (citing Teamsters, 431 U.S. at 362).
The district court characterized Domingo as “binding precedent.” ER 1202. When it came to Domingo's provision for Teamsters hearings, however, the district court reversed course and stated dismissively that Domingo had “simply imported this procedure from Teamsters without considering whether it was necessary.” ER 1203. In dispensing with the “binding precedent” of this Court and the Supreme Court in this manner, the district court committed reversible error.
The district court also erred in supposing that the formula cases were authority for departing from ordinary Title VII requirements on account of the size of a putative class. The “formula” cases that the district court invoked to create this gargantuan class action typically involved a f ew hundred employees and only one or two facilities. Domingo, for instance, involved one facility and 124 claims. 727 F.2d at 1435. Hameed involved one facility, 202 class members, and three positions. 637 F.2d at 520; see also, e.g., EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872, 874 (7th Cir. 1994) (one facility, 17 positions, and 451 class members); Shipes, 987 F.2d at 315 (two related facilities in same city, although company had over 30 in 13 states); EEOC v. Chicago Miniature Lamp Works, 668 F. Supp. 1150, 1153-54 (N.D. 111. 1987) (one facility, 700 positions and 2,000 claimants); Catlett v. Mo. Highway & Transp. Comm'n, 828 F.2d 1260, 1268 (8th Cir. 1987) (one facility, 38 positions, and 150 class members); Stewart, 542 F.2d at 450 (one department within one facility).
In contrast, discrimination claims that span multiple facilities with many different decisionmakers, relying on different factors, and involving various job categories are often considered unmanageable. For example, in Grosz v. Boeing Co., 2003 U.S. Dist. LEXIS 25341 (C.D. Cal. Nov. 7, 2003), permission to appeal granted, No. 04-55428 (9th Cir. Mar. 11, 2004), the proposed plaintiff class spanned “the operations of different heritage companies, multiple physical locations, and countless localized compensation practices.” Id. at *14. The court held that such a class was “unworkably diverse.” Id. at *15. Citing the formula cases, the named plaintiffs requested that the court rely on a formulaic approach to determine eligibility and calculate their claimed backpay and punitive damages. Id. at *19. The court rejected their invitation and required a finding of individual harm to each class member before damages could be awarded. Id. at *20-21. Such an undertaking, with so many diverse plaintiffs from different facilities being rejected for various reasons, was simply unmanageable. Id. at *21. So, too, here.
Finally, the operative facts in the formula cases predate the 1991 amendments to the Civil Rights Act. Title VII now expressly bars a court from ordering
promotion, backpay, or damages if an individual was not the victim of discrimination, and prevents a court from ordering monetary relief if the employer can show it would have made the same decision in the absence of a discriminatory motive. 42 U.S.C. § 2000e-5(g)(2)(A), (B)(ii) (where the employer “demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court... shall not award damages”). Contrary to the district court's unfounded assumption (ER 1215), this is an affirmative defense that may be asserted by the employer regardless of whether it is put in issue by the plaintiffs. Costa v. Desert Palace, Inc., 299 F.3d 838, 857 (9th

Cir. 2002) (en bane) (backpay and punitive damages unavailable where “the employer has proved the ‘same decision’ affirmative defense”), aff'd, 539 U.S. 90 (2003). Thus, even in class cases, individual relief can be provided only to those who were actually injured, and those injuries must be proven individually. See Lewis v. Casey, 518 U.S. 343, 349 (1996); Mayweathers v. Newland, 258 F.3d 930, 934 (9th Cir. 2001); see also Grosz, 2003 U.S. Dist. LEXIS 25341, at *20-21.[FN2]
FN2. The “formula” cases are not authority for what the district court did here for an additional reason. Those cases typically were hiring and promotion cases with multiple minority applicants for each position. Since it would be a purely “hypothetical judgment” which of these applicants would have attained the position in the absence of discrimination, the courts typically assigned a monetary award to the position and then - after Teamsters hearings - divided the award among qualified applicants. See, e.g., Domingo, 727 F.2d at 1444; Pettway, 494 F.2d at 261. Plaintiffs' equal pay claim in this case does not present the same dilemma because actual victims and amounts (if any) can be identified, and the formula cases are to that extent wholly inapposite.
2. Due Process
In addition to being incompatible with Title VII and the Teamsters framework, the novel procedures the court adopted would also violate Wal-Mart's basic due process right to present a defense before being deprived of its property. See, e.g., Degen v. United States, 517 U.S. 820, 828 (1996); Hovey v. Elliott, 167 U.S. 409, 433 (1897). In Nelson v. Adams USA, Inc., 529 U.S. 460 (2000), the Court explained that “[t]he Federal Rules of Civil Procedure are designed to further the due process of law that the Constitution guarantees.” Id. at 465. The defendant in that case “was never afforded a proper opportunity to respond to the claim against him”; “[pjrocedure of this style,” the Court wrote, “has been questioned even in systems... less concerned than ours with the right to due process.” Id. at 468. The Third Circuit has explained that “while plaintiffs may make out a prima facie case under Title VII without introducing evidence on individual cases... defen-dants must be allowed to present any relevant rebuttal evidence they choose, including evidence that there was no discrimination against one or more members of the class”; “to deny [a defendant] the right to present a full defense on the issues would violate due process.” Western Elec. Co, v. Stern, 544 F.2d 1196, 1199 (3d Cir. 1976). Far from permitting Wal-Mart to present “any relevant rebuttal evidence [it] choose[s],” the district court has unabashedly denied Wal-Mart the opportunity to present any evidence at all - or otherwise to “participate further” (ER 1203) - during the second phase of the trial, in clear violation of due process.
The trial court's contemplated second phase of trial would also violate Wal-Mart's right under Title VII and the Seventh Amendment to have a jury resolve all factual issues relating to punitive damages. A special master's analysis of incomplete computer data is not a constitutionally acceptable substitute for a jury determination of the nature of the defendant's conduct as to each “aggrieved individual” and the alleged injury resulting therefrom. 42 U.S.C. § 1981a(b)(l); see also Feltnerv. Columbia Pictures Television, Inc., 523 U.S. 340, 355 (1998) (right to jury trial of damages includes right to have jury determine “all issues pertinent to” damages award); Cimino v. Raymark Indus., Inc., 151 F.3d 297, 312 (5th Cir. 1998) (“[T]his Court has long held that the applicability of the Seventh Amendment is not altered simply because the case is [a] class action”).
Moreover, the assessment of class-wide punitive damages without regard to each claimant's actual injury violates the due process requirement that punitive damages must be calibrated to “the specific harm suffered by the plaintiff and the Supreme Court's edict that due process forbids the infliction of punitive damages to “punish and deter conduct that bore no relation to the [plaintiff's] harm.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 422 (2003); see also id. at 423 (a “defendant should be punished for the conduct that harmed the plaintiff, not for being an unsavory individual or business”); id. at 422 (to be punishable, “conduct must have a nexus to the specific harm suffered by the plaintiff”); id. at 426 (“courts must ensure that the measure of punishment is both reasonable and proportionate to the amount of harm to the plaintiff”) (emphasis added); id. at 425 (“The precise award in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff).

The Supreme Court has recognized that, in every case, “punitive damages pose an acute danger of arbitrary deprivation of property” (State Farm, 538 U.S. at 417 (quotation omitted)), and the district court's order magnifies that risk dramatically, and unconstitutionally, by allowing over 1.5 million class members to seek potentially billions of dollars in punitive damages, but absolving those plaintiffs of proving that Wal-Mart engaged in any wrongdoing directed at them that actually injured them. Indeed, since the court has barred Wal-Mart from proving that its store managers did not discriminate as to individual class members (ER 1195-1196), and since wmnjured class members would be allowed to collect lost pay - and punitive damages - under the court's trial plan (ER 1200-1201), the court's order necessarily exposes Wal-Mart to the threat of being punished, severely, for its lawful acts as to individual employees. “‘To punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.’ “White v. Ford Motor Co., 312 F.3d 998, 1019 (9th Cir. 2002) (quoting BMW of N. Am., Inc. v. Gore,5l7 U.S. 559, 573 n.19 (1996)); State Farm, 538 U.S. at 421 (“A State cannot punish a defendant for conduct that may have been lawful”). Quite simply, the court lacks power “[t]o allow recovery by persons who have not been injured or to allow recovery for an injury greater than that caused by the offending conduct.” Sikes v. Teleline, Inc., 281 F.3d 1350, 1365 (11th Cir.), cert, denied, 537 U.S. 884 (2002).
Consistent with this constitutional mandate, the Fifth Circuit has ruled that individual hearings must be held where plaintiffs seek punitive damages. That court has held that punitive damages “must be determined after proof of liability to individual plaintiffs at the second stage of a pattern and practice case”; plaintiffs must prove “how discrimination was inflicted on each plaintiff.” Allison, 151 F.3d at 417-18 (emphases added). This approach is also mandated by the plain text of Title VII. See 42 U.S.C. § 1981a(b)(l) ( “A complaining party may recover punitive damages... if the complaining party demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual”) (emphasis added).
In short, the district court's repeated disregard for governing substantive law compels reversal. The court's order would permit an award of backpay and punitive damages to a class member who did not suffer any discrimination (because, for example, she lacks key qualifications that her male counterparts possess and works at a store where she, and other, women are paid as much as or more than men). Wal-Mart would be forbidden from defending itself against the claims of such a class member. Neither Title VII nor due process permits such a fundamentally unfair result.
B. Wal-Mart Is Entitled To The Same Rights As Every Other Litigant
The district court responded to many of these objections with the statement that “Title VII... contains no exception for large employers.” ER 1140. Plaintiffs can be expected to repeat the same mantra in this Court. Large corporate defendants are, however, just as entitled to due process, and the other protections of the substantive law, as are individuals. BMW, 517 U.S. at 585. The district court simply overlooked the corollary to its own principle: Neither Rule 23 nor the Rules Enabling Act permits altering the substantive law just because an employer is large.
The right answer is that plaintiffs can and should pursue discrimination claims at the decisionmaking level. As noted above, the certification record contains no evidence of discrimination at the vast majority of Wal-Mart stores. Since it is equally undisputed that the challenged hourly pay and management-track promotion decisions are made at the store level, that is the appropriate level for any class-based challenge to Wal-Mart's employment practices. A store-by-store action would have an average of 500 to 1,000 female current and former employees - still large by Title VII standards, but far more manageable than the 1.5-plus million member class erroneously certified by the district court. Store-by-store actions would be brought in the appropriate district to comply with Title VII's venue provision (42 U.S.C. § 2000e-5(f)(3)), and would distribute the burden across the judicial system. Thus, if plaintiffs can adduce competent evidence of discrimination and meet the requirements of Rule 23 at the individual store level, they can seek certification of appropriate classes on that basis under the ordinary substantive and procedural law.
III. The District Court Altered Substantive Law By Failing To Recognize That Monetary Relief Plainly Predominates And Concluding That The Class Meets The Requirements of Rule 23(b)(2)

Plaintiffs urged the district court to certify the class under Rule 23(b)(2), which “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed. R. Civ. P. 23, Adv. Comm. Notes to 1966 amend. This Court has therefore held that “[c]lass certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory or injunctive.” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1195, amended, 273 F.3d 1266 (9th Cir. 2001) (emphasis added). Despite unrebutted evidence that the alleged discrimination did not occur at a majority of Wal-Mart stores, despite the fact that most of the putative class members lack standing to seek injunctive or declaratory relief, and despite plaintiffs' prayer for billions of dollars in backpay and punitive damages, the district court held that certification under (b)(2) was proper.
A. Rule 23(b)(2) Is Inapposite On Its Face
The district court failed even to evaluate the requirement that the challenged conduct be “generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” Fed. R. Civ. P. 23(b). The district court apparently believed Rule 23(b)'s requirements had been satisfied because “Plaintiffs allege Wal-Mart has acted or refused to act - through its discriminatory practices - on grounds generally applicable to the proposed class, which Plaintiffs seek to remedy through injunctive relief and the recovery of lost pay and punitive damages.” ER 1188. This allegation, however, is flatly contradicted by the unrebutted evidence.
While Wal-Mart may have acted in a manner “generally applicable to the class” insofar as it permitted decentralized decisionmaking at local facilities across the country, such a delegation is actionable under Title VII, if at all, only if it is used as a mechanism for effectuating a general policy of discrimination. Wal-Mart's unrebutted statistics, improperly ignored by the district court, show that the vast majority of class members did not work at facilities where discretionary deci-sionmaking was used to discriminate, and its affirmative corporate policies prohibit discrimination, rendering injunctive relief for the “class as a whole” patently inappropriate and Rule 23(b)(2) inapposite on its face. See Stastny, 628 F.2d at 280 n.20 (“If facility concentrated discrimination be the reality behind the system-wide statistical disparities, then it is not the case, as contemplated by Rule 23(b)(2), that the party opposing the class ‘has acted... on grounds generally applicable to the... class”’).
Certification under Rule 23(b)(2) is improper unless reasonable plaintiffs would seek injunctive or declaratory relief “even in the absence of a possible monetary recovery.” Molski v. Gleich, 318 F.3d 937, 950 & n.15 (9th Cir. 2003). Four of the six named plaintiffs, and a majority of the putative class members, no longer work for Wal-Mart and have no standing to seek anything but monetary relief. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Faibisch v. Univ. ofMinn., 304 F.3d 797, 801 (8th Cir. 2002); Jackson v. Motel 6Multipur- pose, Inc., 130 F.3d 999, 1007 (11th Cir. 1997). Thus, they not only would not, but could not, pursue this suit in the absence of any monetary relief; that fundamental principle of constitutional law cannot be ignored simply because this purports to be a class action. Ortiz, 521 U.S. at 831 (Rule 23 “must be interpreted in keeping with Article III constraints”) (quotation omitted); see also O'Shea v. Littleton, 414 U.S. 488, 494 (1974).
B. Substantial Monetary Relief Predominates
The district court recognized that “plaintiffs have foregone compensatory damages in this case,” presumably because a request for such damages would have certainly rendered (b)(2) certification unavailable and made commonality and typicality even more far-fetched than they already are. ER 1189.[FN3] The court ruled, however, that plaintiffs' other monetary claims - which amount to billions of dollars - could be pursued in a (b)(2) action, even though the Supreme Court has recognized that “there is a ‘substantial possibility’ that actions seeking monetary damages are only certifiable under Rule 23(b)(3).” Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994). The district court erred in failing to heed this admonition.

FN3. By eschewing compensatory damages, the named plaintiffs have placed themselves in conflict with any absent class members who might have claims for such damages, making them inadequate representatives. See Thompson v. Am. Tobacco Co., 189 F.R.D. 544, 550-51 (D. Minn. 1999); Feinstein v. Firestone Tire & Rubber Co., 535 F. Supp. 595, 606 (S.D.N.Y. 1982). For example, if a class member suffered injury for which compensatory damages would be available, that claim might be foreclosed. Numerous other intractable conflicts exist amongst the class members. As just one example, a significant fault line within the class is the presence of both alleged victims of discrimination and alleged discriminators, including more than 500 class members who are store managers and thus stand accused of discrimination. SeeDonaldson v. Microsoft Corp., 205 F.R.D. 558, 568 (W.D. Wash. 2001) (recognizing “insurmountable” conflict of class comprising decisionmakers and alleged discriminatees). Further conflicts include, among others, the presence of management and non-management employees. See, e.g., Wagner v. Taylor, 836 F.2d 578, 595 (D.C. Cir. 1987). Given the “divergent aims” of the putative plaintiffs (Broussard, 155 F.3d at 339), these conflicts further support decertification of this sprawling class.
1. Backpay
The governing rule in this Circuit is that “[c]lass certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory or in-junctive” Zinser, 253 F.3d at 1195 (emphasis added). The district court paid lip service to this rule (see ER 1189), but then proceeded to apply a different test - viz., whether “the equitable relief sought predominates over the claim for punitive damages” (ER 1190) (emphasis added). The district court reasoned that “lost pay is recoverable as an equitable, make-whole remedy in employment class actions notwithstanding its monetary nature,” and had “little difficulty concluding... that the equitable relief sought predominates over the claim for punitive damages.” ER 1188, 1190.
Rule 23(b)(2) does not authorize class actions for all “equitable” relief; it applies “only where the primary relief sought is declaratory or injunctive” and backpay is neither. Zinser, 253 F.3d at 1195. Even if Rule 23(b)(2) required that the primary relief be “equitable,” instead of declaratory or injunctive (as this Court has held), the district court nonetheless erred in weighing backpay as counting in favor of (b)(2) certification. “Congress ‘treated [backpay] as equitable’ in Title VII... only in the narrow sense that [Title VII] allow[s] backpay to be awarded together with equitable relief.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 (2002). Outside the context of Title VII, backpay is considered a species of legal compensatory damages. See Millsap v. McDonnett Douglas Corp., 368 F.3d 1246 (10th Cir. 2004); Provencher v. CVS Pharm., 145 F.3d 5, 11 (1st Cir. 1998).
While a p rayer for backpay might not automatically preclude Rule 23(b)(2) certification (e.g., Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-929 (9th Cir. 1982)), for purposes of the Rule 23 inquiry, backpay must be treated as a form of monetary relief weighing against - not in favor of - (b)(2) certification. Eubanks v. Billington, 110 F.3d 87, 95 (D.C. Cir. 1997) (“That backpay is characterized as a form of ‘equitable relief in Title VII cases... 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”).
2. Punitive Damages
A prayer for punitive damages is wholly inconsistent with (b)(2) certification. As the Seventh Circuit has explained, “[a] suit for money damages, even if the plaintiffs seek uniform, class-wide equitable relief as well, jeopardizes [the] presumption of cohesion and homogeneity [underlying (b)(2) certification] because individual claims for compensatory or punitive damages typically require judicial inquiry into the particularized merits of each individual plaintiff's claim.” Lemon v. OperatingEng'rs, 216 F.3d 577, 580 (7th Cir. 2000). “[T]o win punitive damages, an individual plaintiff must establish that the defendant possessed a r eckless indifference to the plaintiff's federal rights - a fact-specific inquiry into that plaintiff's circumstances.” Id. at 581 (emphasis added); see also Allison, 151 F.3d at 417-18. Because punitive damages in employment discrimination cases are “uniquely dependent on the subjective and intangible differences of each class member's individual circumstances,” the Fifth Circuit has held that such claims

cannot be certified under Rule 23(b)(2). Id. at 418.
This aspect of Allison is consonant with this Court's decision in Molski, which reversed the certification of a (b)(2) class asserting claims for treble dam- ages. 318 F.3d at 950-51. Before Molski, this Court had established that monetary relief is generally recoverable in Rule 23(b)(2) class actions only where it is “merely incidental to [the] primary claim for injunctive relief.” Probe v. State Teachers' Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986); see also Kanter v. Warner-Lambert Co., 265 F.3d 853, 860 (9th Cir. 2001) (citing Probe). While Molski held that there is no bright-line rule prohibiting certification of a 23(b)(2) class seeking non-incidental monetary damages, Molski should reasonably be read to create only a n arrow exception to the “general” rule discussed in Probe and Kanter, an exception that merely allows Rule 23(b)(2) classes to proceed where the monetary damages, even if not technically “incidental,” are nonetheless relatively insignificant and the requested injunctive relief is clearly predominant. Certainly, if the monetary relief sought threatens the “cohesion and homogeneity” Rule 23(b)(2) presupposes, certification must be denied. Ticor, 511 U.S. at 121. This Court has never expressly permitted punitive damages in a (b)(2) class action and has indicated on at least two occasions that to do so would be improper. See Williams, 665 F.2d at 929; Zinser, 253 F.3d at 1195.
The district court took a radically different view, holding that “a claim for punitive damages does not detract from the homogeneity or cohesiveness of the class.” ER 1191 (emphasis added). This stemmed from the court's belief that “a punitive damage claim focuses not on facts unique to each class member, but on the defendant's conduct toward the class as a whole.” ER 1191 (quoting Barefield v. Chevron, 1988 WL 188433, at *3 (N.D. Cal. Dec. 6, 1988)) (emphasis added). Title VII, however, requires proof of wrongdoing toward an “aggrieved individual.” 42 U.S.C. § 1981a(b)(l) (emphasis added). As explained above, the Due Process Clause - as authoritatively construed in State Farm and BMW - precludes punishment of Wal-Mart for engaging in lawful activity, and thus demands individualized proof of discriminatory conduct and resulting injury to warrant any imposition of punitive damages.
Ultimately, the district court found this class to be certifiable only by devising an unprecedented process that will have the inevitable consequence of abridging Wal-Mart's substantive rights, running roughshod over basic concepts of fairness and due process, and compromising the rights and interests of absent class members. To put all of this in context, it is useful to consider what will happen in the event the certification order is sustained and plaintiffs prevail in a case conducted according to the procedures set forth in the certification order: • Women who have never experienced any discrimination whatsoever will receive an award of backpay and possibly punitive damages; • Women who were denied a promotion for legitimate reasons, such as misconduct or underperformance, will receive monetary relief; and • Female managers who have never practiced discrimination will be found to have discriminated and be publicly identified as lawbreakers.
These are not mere hypotheticals. If the certification order is sustained and the plaintiffs prevail, each of these scenarios will come about under the district court's case management plan. Given the enormousness of the class, each will be repeated hundreds or thousands of times. Yet each and every one of these scenarios is directly and irrefutably contrary to Title VII, Supreme Court precedent, due process, the Seventh Amendment, the Rules Enabling Act, and common sense.
The substantive law provides that Wal-Mart may not be punished for obeying the law and that no employee may recover monetary relief unless she both suffered discrimination and would not have received the same treatment in the absence of such discrimination. The certification order simply dispenses with these principles. In the end, if class actions are to be certified based on statistics, and if employers are to be deprived of the opportunity to disprove discrimination as to individual employees, then the only option left for employers is to monitor and to eliminate all statistical disparities, even those that exist for nondiscriminatory reasons. The history of Title VII, including the 1991 amendments, demonstrates that Congress not only did not require such a system of management-by-quota, it affirmatively condemned it. See also Watson, 487 U.S. at 993 (“it has long been recognized that legal rules leaving any

class of employers with ‘little choice’ but to adopt [quotas] would be ‘far from the intent of Title VIF”) (citation omitted) (plurality opinion).
This Court has long recognized that “allowing gross damages by treating unsubstantiated claims of class members collectively significantly alters substantive rights... [and] is clearly prohibited by the Enabling Act.” In re Hotel Tel. Charges, 500 F.2d 86, 90 (9th Cir. 1974). Yet that is precisely what the certification order in this case proposes to do. Indeed, the district court recognized that the wholesale adjudication contemplated in its certification order would generate a “windfall” for some employees who had not actually been harmed while “under-compensating” others who had been. The court labeled this “rough justice” (ER 1200-1201), but in fact the court's repeated and express remaking of substantive law would work a gross and manifest injustice that should be corrected by this Court.
CONCLUSION
The class certification order should be vacated.
STATEMENT OF RELATED CASES
Pursuant to Circuit Rule 28-2.6, I hereby certify that I know of no related cases pending in this Court.
Appendix not available.
Betty DUKES, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine Kwapnoski, and Edith Arana, PLAINTIFFS/APPELLEES/CROSS-APPELLANTS, v. WAL-MART STORES, INC., Defendant/Appellant/Cross-Appellee. 2004 WL 3080794 (C.A.9 ) (Appellate Brief )
END OF DOCUMENT

 
 For Opinion See 603 F.3d 571 , 556 F.3d 919 , 509 F.3d 1168 , 474 F.3d 1214
United States Court of Appeals, Ninth Circuit.
Betty DUKES, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine Kwapnoski and Edith Arana, Plaintiffs-Appellees/Cross-Appellants, v.
WAL-MART STORES, INC., Defendant-Appellant/Cross-Appellee. Nos. 04-16688, 04-16720. March 19, 2009.
On Appeal from the United States District Court for the Northern District of California
Brief of the Equal Employment Opportunity Commission as Amicus Curiae in Support of Plaintiffs on Rehearing En Banc
James L. Lee, Depute General Counsel, Vincent J. Blackwood, Acting Associate General Counsel, Carolyn L. Wheeler, Assistant General Counsel, Barbara L. Sloan, Attorney.Equal Employment Opportunity Commission, Office of General Counsel, 131 M Street, N.E., 5th Floor, Washington, D.C. 20507, (202) 663-4721, Fax: (202 663-7090.
*i TABLE OF CONTENTS
TABLE OF AUTHORITIES ... ii
STATEMENT OF INTEREST ... 1
STATEMENT OF ISSUES ... 2
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings ... 2
2. The District Court's Decision ... 6
3. The Ninth Circuit Panel's Decision ... 9
ARGUMENT
I. THE DISTRICT COURT REASONABLY CONCLUDED THAT A CLAIM FOR PUNITIVE DAMAGES MAY BE DETERMINED ON A CLASSWIDE BASIS IN TITLE VII PATTERN-OR-PRACTICE CASES ... 14
II. THE DISTRICT COURT REASONABLY CONCLUDED THAT, IN APPROPRIATE CASES, BACKPAY MAY BE DETERMINED ON A CLASSWIDE BASIS WITHOUT INDIVIDUALIZED HEARINGS ... 23
CONCLUSION ... 31
CERTIFICATE OF COMPLIANCE ... 32

CERTIFICATE OF SERVICE ... 33 Note: Table of Contents page numbers missing in original document
*ii TABLE OF AUTHORITIES Cases Abner v. Kansas City Southern Railroad, 513 F.3d 154 (5th Cir. 2008) ... 19-20 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 24 Barefield v. Chevron, No. C 86-2427 TEH, 1988 WL 188433 (N.D. Cal. Dec. 6, 1988) (unpublished) ... 16-16 Catlett v. Missouri Highway & Transportation Comm'n, 828 F.2d 1260 (8th Cir. 1987) ... 25 Cooper v. Federal Reserve Bank, 467 U.S. 867 (1984) ... 16 Corti v. Storage Technologies Corp., 304 F.3d 336 (4th Cir. 2002) ... 20 Cush-Crawford v. Adchem Corp., 271 F.3d 352 (2d Cir. 2001) ... 19, 20 Desert Palace v. Costa, 539 U.S. 90 (2003) ... 29 Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) ... 24-25 Dukes v. Wal-Mart Stores, 222 F.R.D. 137 (N.D. Cal. 2004) ... passim Dukes v. Wal-Mart Stores, 222 F.R.D. 189 (N.D. Cal. 2004) ... passim *iii Dukes v. Wal-Mart Stores, 509 F.3d 1168 (9th Cir. 2007) ... passim EEOC v. Dial Corp., 259 F. Supp. 2d 710 (N.D. Ill. 2003) ... 17 EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872 (7th Cir. 1994) ... 9, 25, 26 EEOC v. Outback Steakhouse, 576 F. Supp. 2d 1202 (D. Colo. 2008) ... 17 General Telephone Co. v. EEOC, 446 U.S. 318 (1980) ... 18 Griggs v. Duke Power, 401 U.S. 424 (1971) ... 18 Hemmings v. Tidyman's, 285 F.3d 1174 (9th Cir. 2002) ... 15 Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) ... 13

Jenkins v. Raymark Industries, 782 F.2d 468 (5th Cir. 1986) ... 17 Kerr-Selgas v. American Airlines, 69 F.3d 1205 (1st cir. 1995) ... 20 Kolstad v. American Dental Ass'n, 527 U.S. 526 (1999) ... 15 Liberles v. County of Cook, 709 F.2d 1122 (7th Cir. 1983) ... 24-25, 27 Newport v. Fact Concerts, 453 U.S. 247 (1981) ... 16 *iv Pacific Mutual Insurance Co. v. Haslip, 499 U.S. 1 (1991) ... 19 Passantino v. Johnson & Johnson Consumer Products, 212 F.3d 493 (9th Cir. 2000) ... 15, 20 Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... 29 Provencher v. CVS Pharmacy, 145 F.3d 5 (1st Cir. 1998) ... 20 Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ... 9, 24, 27-28, 30 Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993) ... 25, 26 State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003) ... 7-8, 16, 18 Stewart v. General Motors Corp., 542 F.2d 445 (7th Cir. 1976) ... 24-25 Teamsters v. United States, 431 U.S. 324 (1977) ... passim Timm v. Progressive Steel Treating, 137 F.3d 1008 (7th Cir. 1998) ... 19 Williams v. Owens-Illinois, 665 F.2d 918 (9th Cir. 1982) ... 21, 26 Constitutional Provisions, Statutes and Rules U.S. Constitution amendment VII ... 20, 26 42 U.S.C. § 1981a ... 15-22 *v 42 U.S.C. § 1981a(b)(1) ... 15 42 U.S.C. § 1981a(b)(3) ... 22 Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq ... passim 42 U.S.C. § 2000e-2(a) ... 17-18 42 U.S.C. § 2000e-2(m) ... 29-30

42 U.S.C. 2000e-5(f)(1) ... 18
42 U.S.C. § 2000e-5(g)(2) ... 26-30
42 U.S.C. § 2000e-5(g)(2)(A) ... 27-28
42 U.S.C. § 2000e-5(g)(2)(B) ... 28-30
The Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071 (1991) ... passim
§ 2(1) ... 22
§ 107(a)-(b) ... 29-30
Federal Rule of Civil Procedure 23(a) ... 6, 10
Federal Rule of Civil Procedure 23(b)(2) ... passim
Federal Rule of Civil Procedure 23(f) ... 2
Legislative History
H.R. Rep. No. 40(I) 23-63, 102 Cong., 2d Sess., reprinted in 1991 U.S.C.C.A.N. 549 ... 26
137 Cong. Rec. S15471 (daily ed. Oct. 30, 1999) ... 22
Legislative History of Titles VII and XI (GPO 1970) ... 27
*1 STATEMENT OF INTEREST
The Equal Employment Opportunity Commission is the agency charged by Congress with administering, interpreting and enforcing Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and other federal employment discrimination statutes. In this appeal, defendant challenges the district court's holdings, upheld by the panel, that classwide punitive damages remain available and may be determined by a j ury in Stage 1 of a T itle VII pattern-or-practice case; *2 and that backpay may be determined without individualized hearings. Although the Commission's ability to bring an enforcement action alleging a pattern or practice of discrimination does not require class certification under Federal Rule 23, this Court's resolution of issues relating to punitive damages and backpay in class cases may directly affect the Commission's enforcement of Title VII, particularly its systemic litigation. We therefore offer our views to the Court. STATEMENT OF ISSUES[FN1]
FN1. The Commission takes no position on any other issue in this case.
1. Whether classwide punitive damages questions can be resolved in Stage 1 of a bifurcated Title VII pattern-or-practice proceeding.

2. Whether, in appropriate cases, backpay may be determined without individualized hearings.
STATEMENT OF THE CASE
1. Nature of the Case and Course of Proceedings
This is an interlocutory appeal under Federal Rule of Civil Procedure 23(f), seeking review of an order granting in part and denying in part plaintiffs' motion for class certification under Federal Rule 23(b)(2). In 2001, six current or past female Wal-Mart employees brought suit under Title VII alleging that Wal-Mart engages in a pattern or practice of pay and promotion discrimination on the basis of gender. In particular, plaintiffs allege that, due largely to Wal-Mart's subjective decisionmaking practices, female employees are paid less and promoted into management positions more slowly (if at all) than similarly situated male employees. Plaintiffs challenge these practices under both disparate impact and disparate treatment/pattern-or-practice theories and seek injunctive and declaratory relief as well as backpay and punitive damages, though no compensatory damages. Dukes v. Wal-Mart Stores, 222 F.R.D. 137, 141 (N.D. Cal. 2004).
In 2003, plaintiffs moved to certify a class of “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay or management track promotion policies and practices.” 222 F.R.D. at 141-42. To support the motion, plaintiffs proffered expert statistical evidence, largely in the form of regression analyses reported on a regional level, showing statistically significant disparities in pay and promotion between similarly situated male and female employees in each of Wal-Mart's 41 regions.[FN2] Id. at 154-55. In addition, plaintiffs proffered an expert comparison of the percentage of women in management at Wal-Mart and 20 other “benchmark” companies and a sociological study indicating that the lack of women managers at Wal-Mart may result from gender stereotyping. Id. at 151-52. Finally, plaintiffs offered evidence of company policies and practices, including the extent of Home Office oversight of each store, and anecdotal evidence detailing individual experiences from class representatives and other potential class members. To address manageability concerns, plaintiffs recommended that the case be tried in bifurcated proceedings in which a jury would decide in Stage 1 whether there was a pattern or practice of discrimination; if so, whether Wal-Mart acted with malice or reckless disregard of the federally protected rights of the class; and, if so, what amount of punitive damages would be appropriate to punish and deter the conduct. Thereafter, the court would determine disparate-impact liability, as well as injunctive and declaratory relief. Further, plaintiffs suggested, each employee's injury and backpay, if any, would be determined in Stage 2 by computerized computations relying largely on information from Wal-Mart's detailed personnel databases, thus obviating any need for mini-trials. Only women found eligible for backpay through this procedure would share in any punitive damages award. See generally id. at 169-70, 175.
FN2. Regarding pay, plaintiffs' statistical expert concluded that women working in Wal-Mart stores are paid less than men in every region, that pay disparities exist in most job categories, that the salary gap widens over time even for men and women hired into the same jobs at the same time, that women take longer to enter into management positions, and that the higher one looks in the organization, the lower the percentage of women. 222 F.R.D. at 155-57 (adding that total earnings paid to women ranged between 5 and 15 percent less than total earnings paid to similarly-situated men in each year of class period).
As for promotion, the expert found, for example, that it took women 4.38 years longer from date of hire to be promoted to assistant manager while men took 2.86 years, and it took women 10.12 years to reach store manager compared to only 8.64 years for men. Id. at 161.
Wal-Mart opposed class certification. The company mainly argued that a nationwide class action was improper, and plaintiffs' statistical evidence unpersuasive, because the company's decisionmaking processes were subjective and decentralized. Under this view, discrimination, if any, was store- or even manager-specific. Wal-Mart's own expert disaggregated the statistical data into units containing only one store or, frequently, part of a store, and performed

separate regressions on each unit - over 7500 regressions in all. Under this method, the expert found that few statistically significant disparities could be shown.[FN3] 222 F.R.D. at 173-74. Wal-Mart also argued that it was entitled to prove in face-to-face mini-trials with each potential class member that the company would have made the same decision without regard to discrimination; the company argued that this scenario would be impossible given the size of the potential class. Finally, Wal-Mart argued that liability for punitive damages could not be determined on a classwide basis because each class member must independently prove that Wal-Mart acted with malice or reckless indifference to her federally protected rights and the amount of punitive damages, if any, she received must be calibrated to the particular harm she suffered. See, e.g., id. at 172.
FN3. In his rebuttal report, plaintiffs' statistical expert duplicated Wal-Mart's expert's sub-unit analyses, reaggregated the data after weighting them to account for the size of the various data pools and found that, even using Wal-Mart's methods, men nationally earned slightly more than women and the result was statistically significant. Dukes v. Wal-Mart Stores, 222 F.R.D. 189, 195 (N.D. Cal. 2004) (decision on motion to strike expert reports).
2. The District Court's Decision
After extensive briefing and oral argument, the district court issued a lengthy decision granting in large part plaintiffs' motion to certify a class under Rule 23(b)(2). The court concluded that, although the class was large, the issues were “not novel,” and plaintiffs' claims “were relatively narrow in scope.” 222 F.R.D. at 142. Regarding the promotion claim, however, the court denied certification, “on grounds of unmanageability, with respect to Plaintiffs' promotion claims for backpay and punitive damages as to those class members for whom no objective applicant data is available.” Id. at 143. Noting that Wal-Mart had only recently begun posting vacancies for entry-level management positions, having previously employed the “tap-on-the-shoulder” method, the court reasoned that interest in promotion could not be presumed and, given the potential size of the class, plaintiffs could not feasibly identify victims of any proven discrimination without objective applicant data. Id. at 182.
More generally, the district court found that class certification under Federal Rule of Civil Procedure 23(b)(2) was appropriate because plaintiffs' evidence adequately established that there were issues common to the class, that the claims of the class representatives were typical, that they and their counsel would adequately represent the class, and that injunctive and declaratory relief would predominate over any individual relief awarded. Although it declined to choose between the parties' expert's statistical evidence (222 F.R.D. at 156-57). the court concluded that there was sufficient evidence of similar practices and interchange of employees to support, at this preliminary stage, plaintiffs' expert's decision to analyze data on a regional rather than a store or sub-store basis. Id. at 147, 157.
Further, the court found, class treatment would be manageable. The court rejected Wal-Mart's arguments that the claim for punitive damages would preclude class certification. 222 F.R.D. at 170-72. The court reasoned that, “since the purpose of punitive damages is not to compensate the victim but to punish and deter the defendant, a punitive damage claim focuses ‘not on facts unique to each class member, but on the defendant's conduct toward the class as a whole.’ ” Id. (citations omitted). The court distinguished State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), cited by defendant. The plaintiff in State Farm had sued its insurer under Utah law but, in assessing punitive damages, the jury was allowed also to consider conduct by the insurer that affected only persons from states where such conduct was legal; the Supreme Court held that this result “improperly punished the defendant for conduct that ‘bore no relation to the [plaintiff's] harm.’ ” 222 F.R.D. at 172 (quoting State Farm, 538 U.S. at 423). In contrast, here, the court explained, it could ensure that “any award of punitive damages to the class is based solely on evidence of conduct that was directed toward the class.” Id. Moreover, the court could “limit recovery of any punitive damages to those class members who actually recover an award of lost pay,” thereby ensuring that “they were in fact personally harmed by the defendant's conduct,” and could ensure that “any punitive damage award is allocated among the lost pay class in reasonable proportion to individual lost pay awards.” Id.
The court also rejected Wal-Mart's argument that it was entitled to defend against the punitive damages claim on an

individual basis in Stage 2 proceedings. 222 F.R.D. at 174-75. Rather, the claim would be addressed in Stage 1, where, assuming the jury found liability on the pattern-or-practice claims, plaintiffs would then be required to persuade the jury that “the pattern and practice of discrimination was undertaken maliciously or recklessly in the face of a perceived risk that defendant's actions would violate federal law.” Id. If the jury found that punitive damages were appropriate, it would assess also what amount was necessary to punish and deter the conduct; that amount would then be divided among those persons identified as victims in Stage 2.
As for backpay, the court concluded that victims of discrimination could be identified, and backpay calculated, through computer models comparing individual women to similarly situated men. The court noted that cases such as Segar v. Smith, 738 F.2d 1249, 1291 (D.C. Cir. 1984), and EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872, 879-80 & n.9 (7th Cir. 1994), have endorsed such a “formula approach” where, as here, the subjectivity built into the employer's system would call forth a ‘quagmire of hypothetical judgments' in which any supposed accuracy in result would be purely imaginary. 222 F.R.D. at 175-78. The court noted that Wal-Mart maintains a detailed personnel database containing ample information about the objective factors on which pay and promotion decisions were based. The court rejected Wal-Mart's argument that class treatment was impossible because individual liability and relief must be determined in the type of mini-trials contemplated by Teamsters v. United States, 431 U.S. 324 (1977), with respect to each class member. The court noted that “nothing in Teamsters precludes calculating a total backpay award that is allocated among potential victims, where the actual victims cannot realistically be identified even were the court to undertake individual hearings.” 222 F.R.D. at 186-87.
3. The Ninth Circuit Panel Decision
A divided panel of this Court affirmed - both initially and on panel rehearing - the majority of the district court's decision. The majority stressed that its review was limited to whether the district court had “correctly selected and applied Rule 23's criteria.” Under that standard, if plaintiffs “demonstrate that they meet Rule 23's requirements, they should be allowed to pursue their action as a class.” Dukes v. Wal-Mart Stores, 509 F.3d 1168, 1176 (9th Cir. 2007). The majority found no abuse of discretion in the district court's conclusion that plaintiffs had made the requisite demonstration.
Initially, the majority reviewed the evidence and concluded that it satisfied the requirements of Rule 23(a) (numerosity, commonality, typicality and adequacy of representation). In considering the statisticat evidence, for example, the majority agreed with the district court that “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 interchange of employees at the various facilities.” Id. at 1181. In light of those factors, the majority concluded that plaintiffs' expert provided “a reasonable explanation for conducting his research on a regional level,” such that the district court did not abuse its discretion in relying on that evidence in certifying the class. Id. at 1181. See also id. at 1183 (adding that plaintiffs' “factual evidence, expert opinions, statistical evidence, and anecdotal evidence demonstrate that Wal-Mart's female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII”)(original emphasis).
The majority also concluded that the district court did not abuse its discretion in finding that class certification under Rule 23(b)(2) was permissible despite the claims for backpay and punitive damages. The majority acknowledged that Rule 23(b)(2) applies where claims for injunctive or declaratory relief predominate over claims for monetary relief. In determining whether such claims do predominate, however, the majority declined Wal-Mart's invitation to apply the “bright-line rule distinguishing incidental from nonincidental damages” since the Ninth Circuit had already held that predominance should be determined on a case-by-case basis. 509 F.3d at 1186. The majority then concluded that the court did not abuse its discretion in finding that, because a reasonable plaintiff would bring the case seeking to enjoin unlawful pay and promotion practices even in the absence of monetary relief, Rule 23(b)(2) certification was appropriate. 509 F.3d at 1187-88.

Nor was the majority swayed by Wal-Mart's argument that the claim for punitive damages would preclude certification under Rule 23(b)(2), reasoning that “it would be nonsensical to prevent victims of particularly egregious discrimination from simultaneously proceeding as a class action under Rule 23(b)(2) - which is specifically designed to facilitate discrimination class actions - and seeking the punitive damages provided for under Title VII.” 509 F.3d at 1188. For similar reasons, the majority also rejected Wal-Mart's argument that the size of the backpay request should preclude Rule 23(b)(2) certification, noting that a focus on the “potential size of the 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 purposes of Title VII.” Id. at 1186. See also id. at 1187-88 (quoting district court decision, adding that Wal-Mart's argument would lead to “nonsensical result” that the “principal category of cases contemplated by the advisory committee as being certifiable under Rule 23(b)(2) - i.e., ‘actions in the civil rights field where a party is charged with discriminating unlawfully against a class' ... - would no longer be eligible for (b)(2) certification unless the class members agreed to forego the backpay remedy Congress specifically made available to discrimination victims under Title VII”). The majority agreed with Wal-Mart, however, that persons who were no longer employed at Wal-Mart when suit was filed lacked standing to pursue injunctive or declaratory relief. Id. at 1189-90.
Finally, the majority considered whether the suit could proceed in a way that was both manageable and in accordance with due process. The majority noted that the district court had carefully assessed whether the class size would present undue obstacles, and concluded that, for the most part, it would not. The majority first summarized the proposed trial plan. 509 F.3d at 1191 n. 16. Then, without expressly endorsing that plan, the majority concluded that because “there are a range of possibilities ... that would allow this class action to proceed in a manner that is both manageable and in accordance with due process, manageability concerns present no bar to class certification.” 509 F.3d at 1191. In particular, the majority pointed to the procedure used in Hilao v. Estate of Marcos, 103 F.3d 767, 782-87 (9th Cir. 1996), a tort action in which some 10,000 individuals sought damages for injuries resulting from torture or death during the regime of Ferdinand Marcos. To resolve that action, the majority explained, the Court had upheld a procedure whereby a representative sampling of claims was tried and the results were then used to determine damages for the remainder of the class. 509 F.3d at 1192-93. The majority noted that such a procedure, if followed in this case, would allow Wal-Mart to present individual defenses in the randomly selected sample cases. Id. at 1192 n.22; see also id. at 1193 n.23 (suggesting consideration of a “more limited ‘test case’ procedure”).
Judge Kleinfeld dissented. In his view, the proposed class could not be certified because it did not meet the requirements of Rule 23(a). Moreover, the dissent asserted, it is “risible to say that injunctive and declaratory relief ‘predominate’ ”; where, as here, “billions of dollars” in punitive damages are at stake, he asked, “[w]hat Wal-Mart cashier or stocker would care much about how the district court told Wal-Mart to run its business after getting enough cash to quit?” 509 F.3d at 1196-97 (Kleinfeld, J., dissenting).
Further, the dissent concluded, both phases of the proposed trial plan are “constitutionally defective” because Wal-Mart is entitled to an individual jury trial as to each claimant and there is no “legitimate way” for the jury or court to decide upon a punitive damages award. 509 F.3d at 1197. According to the dissent, it is “now firmly established that the Due Process Clause constrains punitive damages to compensatory damages, and that the ratio can rarely exceed a nine to one ratio.” Id. at 1198. Furthermore, punitive damages must reflect the harm that each defendant inflicted on each plaintiff, by comparing each plaintiff's individual compensatory damages with the punitive damages awards against each defendant. Here, however, compensatory damages will never be determined, and back pay will be determined by formula. Thus, “a ratio analysis will not be possible because punitive damages will be unanchored to compensatory damages.” Id.
ARGUMENT
I. THE DISTRICT COURT REASONABLY CONCLUDED THAT A CLAIM FOR PUNITIVE DAMAGES MAY BE DETERMINED ON A CLASSWIDE BASIS IN TITLE VII PATTERN-OR-PRACTICE CASES.

The district court reasonably held that a claim for punitive damages can be determined on a classwide basis in a Title VII pattern-or-practice case. Such a *15 claim focuses on the employer's mental state and conduct toward the class as a whole, rather than specific individuals. A properly-instructed jury can therefore determine whether the employer's conduct warrants a classwide punitive damages award.
Title VII, as amended by the Civil Rights Act of 1991, Pub.L. 102-166 (1991), makes punitive damages available where a “complaining party” demonstrates that the employer engaged in a discriminatory practice “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” 42 U.S.C. § 1981a(b)(1). Interpreting that language, the Supreme Court held that liability for punitive damages depends on the employer's mental state, rather than the nature of the alleged discriminatory conduct. Kolstad v. American Dental Ass'n, 527 U.S. 526, 534-35 (1999). Thus, for example, an employer is “appropriately subject to punitive damages if it acts ‘in the face of a perceived risk that its actions will violate federal law.’ ” Hemmings v. Tidyman's, 285 F.3d 1174, 1197 (9th Cir. 2002) (quoting Kolstad, 527 U.S. at 536). Punitive damages are not appropriate, however, if the employer proves that the discriminatory decisionmaking was “contrary to the employer's good faith efforts to comply with Title VII.” Kolstad, 527 U.S. at 545-46; accord Hemmings, 285 F.3d at 1197-98; Passantino v. Johnson & Johnson Consumer Prods., 212 F.3d 493, 517 (9th Cir. 2000).
*16 Punitive damages lend themselves to classwide determination in a Title VII pattern-or-practice case since neither the claim nor the damages focuses on individual victims of discrimination. The focus of a cl aim under a p attern-or-practice theory is not on individual employment decisions but rather on an overall “pattern of discriminatory decisionmaking.” See Teamsters, 431 U.S. at 360 n.46; cf. Cooper v. Federal Reserve Bank, 467 U.S. 867, 876 (1984) (distinguishing such claims from individual claims). Similarly, punitive damages “are not intended to compensate an injured party, but rather to punish the [wrongdoer] and to deter him and others from similar extreme conduct.” Newport v. Fact Concerts, 453 U.S. 247, 266-67 (1981); accord State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416 (2003) (compensatory damages redress plaintiffs “concrete loss” resulting from defendant's wrongful conduct, but punitive damages “serve a broader function” - “deterrence and retribution”).
Accordingly, if plaintiffs persuade a Stage 1 jury that the employer engaged in a pattern or practice of discrimination “in the face of a perceived risk that its actions will violate federal law,” they have done all that needs to be done to justify an award of punitive damages. And since the focus is on the “defendant's conduct toward the class as a whole,” injured class members' entitlement to share in the award should not vary based on facts unique to their individual claims. See *17Barefield v. Chevron, No. C 86-2427 TEH, 1988 WL 188433, at *3 (N.D. Cal. Dec. 6, 1988) (unpublished); cf. Jenkins v. Raymark Indus., 782 F.2d 468, 474 (5th Cir. 1986) (punitive damages may be determined separately from individuals' injuries). See also EEOC v. Outback Steakhouse, 576 F. Supp. 2d 1202, 1205-06 (D. Colo. 2008) (holding that punitive damages should be decided by Stage 1 jury); EEOC v. Dial Corp., 259 F. Supp. 2d 710, 712-13 (N.D. Ill. 2003) (same).
Wal-Mart disputes this reasoning on three grounds, none of which has merit. First, the company asserts that the language of § 1981a(b)(1) precludes class treatment of punitive damages by requiring “proof of wrongdoing towards an ‘aggrieved individual.’ ” Appellate docket number (“R”)41, Opening Brief at 58. Initially, we note that this characterization of § 1981a is inaccurate. The provision does not require “proof of wrongdoing” directed “towards” an aggrieved individual but rather proof of “malice or reckless indifference to the federally protected rights” of an aggrieved individual. All class members have the same “federally protected right” to be free of gender discrimination in pay and promotion.
Nor does § 1981a's use of the word “individual” render class treatment inappropriate. On the contrary, that word also appears in Title VII's substantive discrimination provisions, which prohibit failing or refusing “to hire or to discharge any individual or otherwise to discriminate against any individual” and limiting, segregating or classifying employees “in any way which would ... tend to deprive any individual of employment opportunities.” 42 U.S.C. § 2000e-2(a). *18 See also, e.g., 42 U.S.C. 2000e-5(f)(1) (charge may be filed by or on behalf of “person claiming to be aggrieved”; within 90 days after receipt of right-to-sue notice, “person claiming to be aggrieved” may bring civil action). Nev-

ertheless, both the Commission and plaintiff-classes have successfully challenged discrimination under these provisions in suits involving multiple potentially “aggrieved individuals.” See, e.g., General Tel. Co. v. EEOC, 446 U.S. 318 (1980); Griggs v. Duke Power, 401 U.S. 424 (1971). The term “aggrieved individual” in § 1981a ensures that “complaining parties,” including the Commission, may not obtain punitive damages for non-class members regardless of the employer's treatment of those individuals. Cf. State Farm, 538 U.S. at 422 (no damages merely because defendant is an “unsavory individual or business”). But use of the word “individual” no more precludes class treatment here than in § 2000e-2(a).
Second, Wal-Mart argues that assessment of classwide punitive damages in Stage 1 “without regard to each claimant's actual injury” violates due process since punitive damages must be “calibrated” to the specific harm suffered by the plaintiff. Opening Brief at 46-47 (citing, e.g., State Farm, 538 U.S. at 422); R147, En Banc Brief at 16. Further, the company argues, individualized trials on this question are required because it is entitled to present “every available defense” before punitive damages can be assessed against it. En Banc Brief at 16-17.
*19 This argument is flawed for several reasons. Under the district court's decision, assuming liability is established, only persons identified as victims and, so, awarded backpay in Stage 2 proceedings, may share in the punitive damages award. At that point, the court will have ample opportunity to apportion punitive damages, as appropriate, based on class members' individual backpay awards.
Moreover, and importantly, unlike in the state law tort cases relied on by Wal-Mart, there is no requirement that punitive damages be proportional to compensatory damages or backpay in Title VII cases. On the contrary, punitive damages may be available to Title VII claimants even in the absence of any backpay or compensatory damages award. See, e.g., Cush-Crawford v. Adchem Corp., 271 F.3d 352, 359 (2d Cir. 2001); Timm v. Progressive Steel Treating, 137 F.3d 1008, 1010 (7th Cir. 1998). This is because, in adding damage claims in the 1991 Civil Rights Act, Congress enunciated a clear standard for the award of punitive damages and imposed caps on the amount of damages, thereby satisfying the Supreme Court's requirement in Pacific Mutual Ins. Co. v. Haslip, 499 U.S. 1, 21 (1991), that punitive damages be “reasonable in their amount and rational in light of their purpose to punish what has occurred and to deter its repetition.” As the Fifth Circuit recently explained, “the combination of the statutory cap and high threshold of culpability for any [punitive damages] award confines the amount of the award to a level tolerated by due process,” and since the circuit “has approved *20 punitive damages with accompanying nominal damages, a ratio-based inquiry becomes irrelevant.” Abner v. Kansas City So. R.R., 513 F.3d 154, 161-165 (5th Cir. 2008); accord Cush-Crawford, 271 F.3d at 357-59 (“To the extent that courts worry about unleashing juries to award limitless punitive damages in cases where no harm had occurred, this concern is eliminated by the imposition of the statutory caps.”). Similarly, this Court has also suggested that punitive damages may not need to be anchored to another form of relief in Title VII cases. See Passantino, 212 F.3d at 514 (without deciding Title VII question, noting that this Circuit has held that punitive damages may be awarded in § 1983 cases without an award of compensatory or nominal damages if plaintiff shows that defendant violated a “federally protected right”).[FN4]
FN4. In the panel decision, the dissenting opinion suggests that punitive damages must be calibrated to compensatory damages without regard to backpay. 509 F.3d at 1197-98 (Kleinfeld, J., dissenting). We are not aware that any circuit has taken that position, although some require nominal damages or backpay as a predicate. See, e.g., Corti v. Storage Tech. Corp., 304 F.3d 336, 341-43 (4th Cir. 2002) (backpay); compare Kerr-Selgas v. American Airlines, 69 F.3d 1205, 1214-15 (1st Cir. 1995) (holding that Title VII punitive damages could not be anchored to state compensatory damages), with Provencher v. CVS Pharmacy, 145 F.3d 5, 11-12 (1st Cir. 1998) (distinguishing Kerr-Selgas, upholding Title VII punitive damages where backpay was awarded).
As for whether Wal-Mart is entitled to present “every available defense” to punitive damages, as noted above, the Supreme Court has specified that, once the jury has determined that the challenged actions were taken with the requisite *21 mental state, the employer's only recourse is to prove that the conduct was contrary to its own good faith efforts to comply with Title VII. Such a showing might be difficult to make if the jury had found a nationwide pat-

tern-or-practice of discrimination.
Third, Wal-Mart argues that trying punitive damages in Stage 1 would violate its Seventh Amendment right to a jury trial. Opening Brief at 46. Any such violation is easily avoided. Typically, as was proposed in this case, in addition to liability, the Stage 1 jury would decide all facts related to punitive damages: whether the defendant acted with malice or reckless indifference and, if so, what award would be required to punish and deter the conduct. Wal-Mart argues that, under this framework, women who had suffered no injury could receive punitive damages, but, as noted above, that simply is not true. Punitive damages would be apportioned only among persons identified as victims in Stage 2 backpay proceedings. Backpay is an equitable determination as to which no jury trial is required. Williams v. Owens-Ill., 665 F.2d 918, 929 & n. 10 (9th Cir. 1982). There is, therefore, no Seventh Amendment right to a jury trial on backpay.
Finally, we note that if Wal-Mart's arguments were accepted, it could effectively preclude a claim for punitive damages in most if not all Title VII pattern-or-practice cases including those brought by the Commission. As the panel majority noted, however, it would be “nonsensical” to prevent victims of *22 particularly egregious discrimination from proceeding collectively, whether in an EEOC enforcement action or a private class action, and seeking the punitive damages Title VII provides. 509 F.3d at 1188. Nor would such a result accord with Congressional intent. On the contrary, Congress added damages to Title VII because it found that “additional remedies [were] needed to deter unlawful harassment and intentional discrimination in the workplace.” Pub. L. 102-166, § 2(1). Moreover, there is evidence that these remedies were intended to apply to collective actions. The damage provision, 42 U.S.C. § 1981a(b)(3), specifies that the amount of damages may not exceed the statutory cap for “each complaining party.” That phrase, which was added by amendment to clarify that “[t]he amount of damages that a victim can recover should not depend on whether that victim files her own lawsuit or joins with other similarly situated victims in a single case,” would be unnecessary if punitive damages were limited to single-claimant cases. See 137 Cong. Rec. S15471 (daily ed. Oct. 30, 1999) (remarks of Sen. Kennedy). We therefore urge this Court to reject Wal-Mart's attempts to restrict punitive damages to small or individual discrimination suits and instead ensure that they remain available in large Title VII pattern-or-practice cases.
*23 II. THE DISTRICT COURT REASONABLY CONCLUDED THAT, IN APPROPRIATE CASES, BACKPAY MAY BE DETERMINED ON A CLASSWIDE BASIS WITHOUT INDIVIDUALIZED HEARINGS.
The district court reasonably concluded that, in appropriate pattern-or-practice cases, backpay may be determined on a classwide basis without individualized hearings. To achieve Title VII's key goal of providing make-whole relief to victims of discrimination, this Court and others have held that classwide relief may be appropriate where, because of factors such as the passage of time and the employer's own subjective employment practices, any attempt to reconstruct individual employment histories more precisely would drag the court into a quagmire of hypothetical judgments. Notwithstanding Wal-Mart's arguments to the contrary, such a p rocedure conflicts with neither the Seventh Amendment nor Title VII.
The standards for liability and relief in pattern-or-practice cases are controlled by Teamsters v. United States, 431 U.S. 324, and its progeny. In Teamsters, the Supreme Court held that, to establish a p rima facie case under a p attern-or-practice theory, plaintiffs must demonstrate that discrimination was “the company's standard operating procedure, the regular rather than the unusual practice.” Id. at 336. If they carry that burden, injunctive and other classwide prospective relief follows. Id. at 361. If backpay or other individual relief is sought, however, the district court must “usually” conduct “additional *24 proceedings” to determine “the scope” of that relief. Id. Because the employer has already been shown to be a wrongdoer, each class member is entitled to individual relief unless the employer proves that she was “denied an employment opportunity for lawful reasons.” Id. at 361-62.
While Teamsters held that the make-whole relief is “usually” determined in some kind of “additional proceedings,” courts construing this language have held that separate mini-trials for individual victims may not always be either necessary or, indeed, preferable. A key goal of Title VII is to ensure that victims of discrimination are made whole for

their injuries. Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975). In addition, once an employer has been shown to be a discriminator, there is a presumption in favor of backpay that can seldom be overcome. See, e.g., Liberles v. County of Cook, 709 F.2d 1122, 1136 (7th Cir. 1983). In some cases, however, because of the class size, the passage of time, and the ambiguity of the challenged employment practices, for example, “any attempt to reconstruct individual employment histories would drag the court into ‘a quagmire of hypothetical judgments.’ ” Segar v. Smith, 738 F.2d 1249, 1290 (D.C. Cir. 1984) (citation omitted); see also Domingo v. New England Fish Co., 727 F.2d 1429, 1444 (9th Cir. 1984). The “choice” therefore is between “no compensation” for injured victims and “an approximate measure of damages.” See Stewart v. General Motors Corp., 542 F.2d 445, 452-53 (7th Cir. 1976). In such *25 cases, courts, including this one. have held that relief may be determined on a classwide basis without individualized hearings. See, e.g., Liberles, 709 F.2d at 1136 (pay case).[FN5] Moreover, “unrealistic exactitude” in backpay calculations is not required (id.), and “[a]ll uncertainties should be resolved against the employer.” Domingo, 727 F.2d at 1445. Cf. Albemarle Paper Co., 422 U.S. at 421 (“backpay should be denied [only] for reasons which, if applied generally, would not frustrate the central statutory purpose of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination”).
FN5. See also EEOC v. O&G Spring & Wire Forms Specialty Co., 38 F.3d 872, 879-80 (7th Cir. 1994) (upholding district court's decision to apportion total backpay award pro-rata among all eligible class members); Shipes v. Trinity Indus, 987 F.2d 311, 318-19 (5th Cir. 1993) (upholding use of backpay formula in hiring, promotion and termination case); Catlett v. Missouri Highway & Transp. Comm'n, 828 F.2d 1260, 1267-68 (8th Cir. 1987) (noting that backpay may be awarded on a classwide rather than individual basis).
Applying similar logic in this case, the district court here reasoned that, if liability were found in Stage 1, since Wal-Mart relied on largely subjective decisionmaking and did not regularly post openings for entry-level management positions, this caselaw would allow the determination of individual relief in something other than Stage 2 mini-trials. Specifically, the court proposed that in Stage 2, victims would be identified and relief, if any, determined through computerized calculations comparing each class member's pay to that of comparable men, mainly with information from Wal-Mart's extensive personnel *26 databases. 222 F.R.D. at 180-86. Compare Shipes v. Trinity Indus., 987 F.2d at 319 (upholding similar procedure).[FN6]
FN6. Alternatively, the majority suggested trying a representative sampling of the claims or using a test case procedure. 509 F.3d at 1190-93 & nn.22-23.
Wal-Mart takes exception to this proposal, arguing that it is entitled to an individualized hearing for every claimant. Initially, the company characterizes the “formula” caselaw as “stale” since it pre-dates passage of the Civil Rights Act of 1991. Opening Brief at 39. On the contrary, however, Teamsters and its progeny remain the standard for pattern-or-practice cases notwithstanding passage of the 1991 Civil Rights Act. Although that Act changed the law in response to a number of Supreme Court cases, Teamsters was not among them. See, e.g., H.R. Rep. No. 40(I) 23-63, 102 Cong., 2d Sess. 23-63, reprinted in 1991 U.S.C.C.A.N. 549, 561-601. Moreover, both O&G Spring and Shipes came down several years after the 1991 Act was passed.
Alternatively, Wal-Mart argues that these proposed classwide relief procedures would violate its rights under the Seventh Amendment and 706(g)(2) of Title VII. The first point is easily dismissed. As noted above, there is no Seventh Amendment right to a jury trial for backpay awards. See Williams, 665 F.2d at 929. Indeed, until the 1991 Civil Rights Act added damages to Title VII, cases were routinely tried to the court.
*27 Title VII likewise does not support Wal-Mart's position. As noted above, the argument centers around section 706(g)(2) of Title VII, 42 U.S.C. § 2000e-5(g)(2), which, according to the company, “explicitly prohibits monetary awards against non-victims.” En Banc Brief at 16; see also Opening Brief at 40 (“individual relief may be provided only to those who were actually injured and those injuries must be proved individually”). To ensure that no non-victim recovers, the company argues, each class member's eligibility for relief must be determined in individualized hearings.

That vastly overstates the meaning of section 706(g)(2). The provision has two parts. Subpart A has been part of Title VII since it was enacted in 1964 (Legislative History of Titles VII and XI, at 1014) and was originally part of a single subsection (g). It states, in pertinent part: “No order of the court shall require ... the hiring, reinstatement or promotion of any individual as an employee, or the payment to him of any back pay, if such individual was ... refused employment or advancement or was suspended or discharged for any reason other than discrimination.” 42 U.S.C. § 2000e-5(g)(2)(A). As noted above, despite this language, courts in appropriate cases have regularly upheld awards of backpay without individualized hearings, reasoning that “unrealistic exactitude is not required” and “ambiguities” should be resolved against the discriminating employer. See Liberles, 709 F.2d at 1136; see also Segar, 738 F.2d at 1292 *28 (holding that § 706(g)(2)(A) cannot be read to require individualized hearings where result would be that many injured claimants would be denied relief “to account for the risk that a small number of undeserving individuals might receive backpay”).
Wal-Mart's Opening Brief makes clear that the company is actually relying on Subpart B, which was added to the statute by the 1991 Civil Rights Act. According to the company, that provision “prevents a court from ordering monetary relief if the employer can show it would have made the same decision in the absence of a discriminatory motive.” Opening Brief at 43-44. The company takes the position that the provision essentially supersedes Teamsters as the operative defense to a pattern-or-practice claim. See, e.g., Opening Brief at 37 (§ 2000e-5(g)(2)(B) “codifies” Teamsters defense). Quoting selectively, Wal-Mart characterizes § 2000e-5(g)(2) as providing: “where the employer ‘demonstrates that [it] would have taken the same action in the absence of the impermissible motivating factor, the court ... shall not award damages.’ ” Opening Brief at 44 (alterations in Wal-Mart's brief). Thus, the argument goes, if pattern-or-practice liability were established, § 2000e-5(g)(2) would entitle Wal-Mart to face-to-face mini-trials with each class member where the company may attempt to prove that no backpay is owing because the same decision would have been made for *29 legitimate reasons - something the district court thought would be impractical here, given the number of potential claimants. Id.
There is no textual basis for this argument. The starting point for analyzing a statute is the statutory text itself. Desert Palace v. Costa, 539 U.S. 90, 98 (2003). Section 2000e-5(g)(2)(B) is part of § 107 of the 1991 Civil Rights Act - the “mixed-motives” provision responding to Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Desert Palace, 539 U.S. at 94. Under Price Waterhouse, if a plaintiff proved that sex played a “motivating” role in the challenged conduct, a defendant could avoid all liability by proving a same-decision defense. Desert Palace, 539 U.S. at 93. To impose liability but limit relief in such cases, Congress enacted § 107. Section 107(a), codified at 42 U.S.C. § 2000e-2(m), provides: [A]n unlawful employment practice is established when the complaining party demonstrates that [sex] ... was a motivating factor for any employment practice, even though other factors also motivated the practice.
§ 107(b), § 2000e-5(g)(2)(B), then states: On a claim in which an individual proves a violation under § 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court ... may grant declaratory relief, injunctive relief ... and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m); and ... shall not award damages ....”
*30 (Emphasis added). Thus, § 2000e-5(g)(2)(B) plainly applies only in situations where plaintiffs prove a violation of § 2000e-2(m).
That is simply not the situation here. Plaintiffs have brought a Teamsters-style pattern-or-practice claim, so § 706(g)(2)(B) has no applicability to the case. Indeed, by rewriting the provision to fit a pattern-or-practice case, Wal-Mart essentially admits that Title VII itself would not require Stage 2 mini-trials for every class member here.
In short, courts' ability to determine backpay on a classwide basis without individualized hearings has proved to be an

important tool for ensuring that individuals injured by systemic discrimination may obtain redress for those injuries where, due to specific circumstances in the case, “any attempt to reconstruct individual employment histories would drag the court into a quagmire of hypothetical judgments” (Segar, 738 F.2d at 1290). This is true in EEOC enforcement actions no less than in private class actions. We therefore urge the Court to ensure that nothing in its decision restricts the availability of these relief procedures in Title VII pattern-or-practice cases.
*31 CONCLUSION
For the foregoing reasons, should it choose to reach these issues, this Court should hold that punitive damages remain available in pattern-or-practice cases and that backpay may be determined on a classwide basis without individualized hearings.
Betty DUKES, Patricia Surgeson, Cleo Page, Deborah Gunter, Karen Williamson, Christine Kwapnoski and Edith Arana, Plaintiffs-Appellees/Cross-Appellants, v. WAL-MART STORES, INC., Defendant-Appellant/Cross-Appellee. 2009 WL 872875 (C.A.9 ) (Appellate Brief )
END OF DOCUMENT

 
 Supreme Court of the United States.
WAL-MART STORES, INC., Petitioner, v.
Betty DUKES, Patricia Surgeson, Edith Arana, Karen Williamson, Deborah Gunter, Christine Kwapnoski,
Cleo Page, on behalf of themselves and all others similarly situated, Respondents. No. 10-277. August 25, 2010.
On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit
Petition for a Writ of Certiorari
Theodore B. Olson, Mark A. Perry, Amir C. Tayrani, Gibson, Dunn & Crutcher LLP, 1050 C onnecticut Avenue, N.W., Washington, D.C. 20036, (202) 955-8500.Theodore J. Boutrous, Jr., Counsel of Record, Rachel S. Brass, Theane Evangelis Kapur, Gibson, Dunn & Crutcher LLP, 333 S outh Grand Avenue, Los Angeles, CA 90071, (213) 229-7000, tboutrous@gibsondunn.com, Counsel for Petitioner. QUESTIONS PRESENTED
In a sharply divided 6-5 decision that conflicts with many decisions of this Court and other circuits, the en banc Ninth Circuit affirmed the certification of the largest employment class action in history. This nationwide class includes every woman employed for any period of time over the past decade, in any of Wal-Mart's approximately 3,400 separately managed stores, 41 r egions, and 400 di stricts, and who held positions in any of approximately 53 departments and 170 different job classifications. The millions of class members collectively seek billions of dollars in monetary relief under Title VII of the Civil Rights Act of 1964, claiming that tens of thousands of Wal-Mart managers inflicted monetary injury on each and every individual class member in the same manner by intentionally discriminating against them because of their sex, in violation of the company's express anti-discrimination policy.
The questions presented are:
I. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) which by its terms is limited to injunctive or corresponding declaratory relief - and, if so, under what

circumstances.
II. Whether the certification order conforms to the requirements of Title VII, the Due Process Clause, the Seventh Amendment, the Rules Enabling Act, and Federal Rule of Civil Procedure 23.
*II PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT
The caption contains the names of all the parties to the proceeding below.
Pursuant to this Court's Rule 29.6, undersigned counsel state that Wal-Mart Stores, Inc. has no parent corporation and that no other publicly held corporation owns 10% or more of its stock.
*iii TABLE OF CONTENTS
OPINIONS BELOW ... 1
JURISDICTION ... 1
STATUTORY PROVISIONS INVOLVED ... 1
STATEMENT ... 1
REASONS FOR GRANTING THE PETITION ... 8
I. This Court Should Grant Review To Decide Whether And How Rule 23(b)(2) Applies To Monetary Claims And Resolve The Three-Way Conflict On This Question ... 9
A. The Circuits Have Split Three Ways ... 10
B. The Ninth Circuit's Standard Is Clearly Wrong ... 12
C. The Question Is Important And Recurring ... 16
II. The Decision Below Creates Or Exacerbates Numerous Additional Conflicts Concerning Rule 23, Title VII, The Due Process Clause, The Seventh Amendment, And The Rules Enabling Act ... 17
A. The Ninth Circuit Improperly Relieved Plaintiffs Of Their Burden Of Proof ... 18

B. The Ninth Circuit Improperly Stripped Wal-Mart Of Its Right Of Defense ... 27
C. The Issues Are Important and Recurring ... 33
CONCLUSION ... 34
*iv APPENDIX A: Opinion of the United States Court of Appeals for the Ninth Circuit ... 1a
APPENDIX B: Order of the United States District Court for the Northern District of California Granting in Part and Denying in Part Motion for Class Certification ... 162a
APPENDIX C: Order of the United States Court of Appeals for the Ninth Circuit Granting Rehearing En Banc ... 284a
APPENDIX D: Statutory Provisions Involved ... 286a
*v TABLE OF AUTHORITIES
Cases
Adams v. Robertson, 520 U.S. 83 (1997) ... 10
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) ... 15
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ... passim
In re Allstate Ins. Co., 400 F.3d 505 (7th Cir. 2005) ... 29
Am. Honda Motor Co. v. Allen, 600 F.3d 813 (7th Cir. 2010) ... 25
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ... passim
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) ... 22
Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir. 2004) ... 23

Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998) ... 13
Bolin v. Sears, Roebuck & Co., 231 F.3d 970 (5th Cir. 2000) ... 14
Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) ... 27
Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009) ... 21
*vi City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ... 15
Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984) ... 27
Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004) ... 11, 21, 23, 31
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993) ... 24, 25
E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395 (1977) ... 21
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ... 22
Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ... 16
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) ... 31
Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) ... 31
Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006) ... 20, 23
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982) ... passim
Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985) ... 21
Great-West Life & Annuity Ins. Co. v. Knudson, 534

U.S. 204 (2002) ... 15
Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987) ... 21
*vii Harris v. Nelson, 394 U.S. 286 (1969) ... 14
Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996) ... 6, 30, 32
Hohider v. United Parcel Serv., Inc., 574 F.3d 169 (3d Cir. 2009) ... passim
Holsey v. Armour & Co., 743 F.2d 199 (4th Cir. 1984) ... 21, 23
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2009) ... 22, 25, 26, 32
Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ... 6, 23, 27, 28
In re IPO Sec. Litig., 471 F.3d 24 (2d Cir. 2006) ... 22, 25, 26
Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894 (7th Cir. 1999) ... 14
Koon v. United States, 518 U.S. 81 (1996) ... 17
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) ... 14
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) ... 19, 23
Lemon v. Int'l Union of Operating Eng'rs, 216 F.3d 577 (7th Cir. 2000) ... 11, 14, 29, 31
Lindsey v. Normet, 405 U.S. 56 (1972) ... 30
Love v. Johanns, 439 F.3d 723 (D.C. Cir. 2006) ... 21
*viii Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ... 15
McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008) ... passim

Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) ... 11, 17
In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) ... 15
In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6 (1st Cir. 2008) ... 15
Ortiz v. Fibreboard Corp., 527 U.S. 815 ( 1999) ... passim
Philip Morris USA v. Williams, 549 U.S. 346 (2007) ... 31
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ... 14
In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005) ... 26
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... 13
Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639 (6th Cir. 2006) ... 11, 20, 28, 31
Richards v. Delta Air Lines, Inc., 453 F.3d 525 (D.C. Cir. 2006) ... 10
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) ... 11, 17
Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) ... 21
*ix Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ... 31
Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir. 1993) ... 21
Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267 (4th Cir. 1980) ... 23
Sullivan v. DB Invs., Inc., __ F.3d __, 2010 WL 2736947 (3d Cir. July 13, 2010) ... 29

Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) ... 11, 14, 16, 29
Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) ... passim
Tull v. United States, 481 U.S. 412 (1987) ... 31
Unger v. Amedisys Inc., 401 F.3d 316 (5th Cir. 2005) ... 25
United States v. Armour & Co., 402 U.S. 673 (1971) ... 30
Vuyanich v. Republic Nat'l Bank of Dallas, 723 F.2d 1195 (5th Cir. 1984) ... 21
Wachtel v. Guardian Life Ins. Co., 453 F.3d 179 (3d Cir. 2006) ... 32
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ... 19, 20, 24, 33
West v. Prudential Sec., Inc., 282 F.3d 935 (7th Cir. 2002) ... 26
*x Constitutional Provisions
U.S. Const. amend. V ... passim
U.S. Const. amend. VII ... 2, 17, 31
Statutes
28 U.S.C. § 1254 ... 1
28 U.S.C. § 2072(b) ... passim
42 U.S.C. § 2000e-5(f)(3) ... 26
42 U.S.C. § 2000e-5(g)(2)(A) ... 28
42 U.S.C. § 2000e-5(g)(2)(B) ... 28
Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 ... 19

Rules
Fed. R. Civ. P. 23 ... passim
Other Authorities
Note, Certifying Classes & Subclasses in Title VII Suits, 99 Harv. L. Rev. 619 (1986) ... 21
Merriam-Webster's Collegiate Dictionary (11th ed. 2004) ... 12
John Monahan et al., Essay, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715 (2008) ... 24
Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U.L. Rev. 97 (2009) ... 33
*1 OPINIONS BELOW
The opinion of the en banc court of appeals (App. 1a-161a) is published at 603 F.3d 571. Superseded panel opinions are reported at 509 F.3d 1168 and 474 F.3d 1214. The district court's certification order (App. 162a-283a) is published at 222 F.R.D. 137. A related evidentiary order is published at 222 F.R.D. 189.
JURISDICTION
The judgment of the court of appeals was entered on April 26, 2010. On July 7, 2010, Justice Kennedy extended the time for filing this petition to August 25, 2010. No. 10A19. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent provisions of Title VII, the Rules Enabling Act, and Federal Rule of Civil Procedure 23 are reproduced in the Appendix (at 286a-302a).
STATEMENT
The district court certified a sprawling nationwide class consisting of all current and former female employees of Wal-Mart Stores, Inc., estimated at the time to comprise at least 1.5 million women. The Ninth Circuit's 6-5 en banc decision upholding the certifica-

tion order adopts standards that violate the rights of both defendants and absent class members and contradicts decisions of this Court and other circuits.
The Ninth Circuit created an acknowledged three-way circuit split on the standard for determining when claims for monetary relief can be certified *2 as a class action under Federal Rule of Civil Procedure 23(b)(2), which on its face applies only to claims for injunctive or corresponding declaratory relief. The majority expressly rejected both of the standards previously articulated in the circuits (one of which had been applied by the district court) and announced a new standard, thus exacerbating the longstanding conflict and confusion on this issue in the lower courts. This Court has previously granted review to address variants of this issue, but has never decided it. It is now time to do so.
The Ninth Circuit also departed from this Court's precedents, and created conflicts with virtually every other circuit, on several other important and recurring issues in class action mid employment law. The majority absolved plaintiffs from adducing “significant proof” of an unlawfully discriminatory practice or policy that affected all class members in the same manner, as required by this Court and other circuits. The court then swept aside the need to determine millions of individual issues by relieving plaintiffs of their burden of proving intent and injury and by stripping Wal-Mart of its right to assert crucial defenses explicitly established by Title VII. This approach, which violates the Rules Enabling Act, the Due Process Clause, and the Seventh Amendment, contradicts numerous decisions of this Court and other circuits and warrants review.
1. Wal-Mart is the Nation's largest private employer. At the time of certification (in 2004), it operated approximately 3,400 stores in the United States and employed more than a million people. App. 163a.
At the time of certification, Wal-Mart's complex retail operation functioned as follows: It was divided *3 into seven divisions, which were split into 41 separate regions and then further divided into approximately 400 individual districts. App. 114a (Ikuta, J., dissenting). Each of Wal-Mart's regions consisted of 80 to 85 stores, employing 80 t o 500 people per store. Ibid. Store managers who ran individual stores were responsible for hiring and promoting hourly employees

in their respective stores. Ibid. Within each store, assistant managers (who were salaried) reported to store managers. Ibid. The company's hourly retail employees worked in 53 different departments and 170 different job classifications, including cashiers, team leads, and department managers. Ibid.
Wal-Mart's company-wide policy bars discrimination based on gender. As the district court recognized, “Wal-Mart has earned national diversity awards and its executives discuss diversity and include it in company handbooks and trainings. The company has diversity goals, performance assessments, and penalties for EEO violations.” App. 195a (citations omitted).
The six class representatives are current or former Wal-Mart employees. They allege that, by delegating substantial discretion to individual managers, Wal-Mart “fosters or facilitates gender stereotyping and discrimination, … and that this discrimination is common to all women who work or have worked in Wal-Mart stores.” App. 5a. On behalf of all women employed at any Wal-Mart retail store since 1998, they seek “injunctive and declaratory relief, back pay, and punitive damages, but not traditional ‘compensatory’ damages.” Ibid.
Over Wal-Mart's objections, the district court determined that plaintiffs' evidence satisfied the requirements*4 of Rule 23(a) and (b)(2) and certified a class of “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices.” App. 283a.
2. On Rule 23(f) review, the Ninth Circuit issued three sharply divided decisions - a 2-1 panel decision, a 2-1 amended panel decision, and a 6-5 en banc decision in which the majority voted to affirm, in substantial part, the certification, order. App. 111a; see also 509 F.3d 1168; 474 F.3d 1214. The dissenters maintained that this unprecedented certification “departs from the language and intent of Rule 23 of the Federal Rules of Civil Procedure, ignores Supreme Court mandates, and neglects the rights of defendants.” App. 113a (Ikuta, J., dissenting). And “[i]t sacrifices the rights of women injured by sex discrimination.” 509 F.3d at 1200 (Kleinfeld, J., dissenting).

a. With respect to Rule 23(a)'s “commonality” requirement, the en banc majority concluded that “[e]vidence of Wal-Mart's subjective decision-making policies suggests a common legal or factual question regarding whether Wal-Mart's policies or practices are discriminatory.” App. 78a. While acknowledging “the absence of a specific discriminatory policy,” the majority held that plaintiffs were not required to establish such a p olicy at the certification stage, and that Wal-Mart's objections went to the “merits” of plaintiffs' claims. Id. at 59a.
As to the “typicality” requirement of Rule 23(a), the majority simply declared: “Even though individual employees in different stores with different managers may have received different levels of pay or *5 may have been denied promotion or promoted at different rates, because the discrimination they claim to have suffered occurred through alleged common practices e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping - … their claims are sufficiently typical ….” App. 80a.
Regarding Rule 23(b)(2)'s applicability to monetary relief claims, the majority recognized that the Ninth Circuit had “previously joined the Second Circuit in adopting a test that focuses on the plaintiffs' subjective intent in bringing a lawsuit,” while “several other circuits use the ‘incidental damages standard’ that was first enunciated by the Fifth Circuit.” App. 85a. Rather than reconciling this conflict, however, the majority rejected the Ninth Circuit's previous standard and “instead” adopted a third standard under which monetary claims may be certified under Rule 23(b)(2) if they are not “superior in strength” (as determined using a new multi-factor test) to the requested injunction. Id. at 86a. Although most of the class members are former employees who lack standing even to secure injunctive or declaratory relief and collectively seek to recover billions of dollars in backpay, the Ninth Circuit affirmed the certification order, announcing a categorical rule that Title VII backpay claims are “fully consistent with the certification of a Rule 23(b)(2) class action.” Id. at 92a.
While the majority vacated the certification of plaintiffs' claims for punitive damages, it s uggested that those claims might be certifiable on remand under Rule 23(b)(2) or (b)(3) (App. 99a), rejecting the need for any “individualized punitive damages determina-

tions.” Id. at 98a.
*6 The court also rejected Wal-Mart's argument that, by eliminating traditional individual hearings regarding entitlement to monetary relief, the district court's trial plan violated its “due process rights, as well as section 706(g)(2) of Title VII, the Rules Enabling Act, and the Supreme Court's decision in [International Brotherhood of] Teamsters [v. United States], 431 U.S. [324], 359-60 [(1977)].” App. 104a & nn.51-53. The court “express[ed] no opinion regarding Wal-Mart's objections to the district court's tentative trial plan (or that trial plan itself),” but instead noted that “there are a range of possibilities.” Id. at 105. The court suggested that a statistical sampling method or the district court's formula plan might be invoked. It nevertheless declined to endorse either approach. Id. at 105a-110a & n.57 (citing Hilao v. Estate of Marcos, 103 F.3d 767, 782-87 (9th Cir. 1996)).
b. Judge Graber concurred on the ground that it makes no difference for class certification purposes whether the employer had 500 or 500,000 female employees. App. 111a-112a.
c. Judge Ikuta, dissenting, demonstrated that each of the majority's principal holdings is inconsistent with this Court's precedents or in conflict with the decisions of other circuits. See, e.g., App. 121a-122a, 138a-139a, 154a-157a. She showed that the decision is irreconcilable with General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982), which is both “the sole Supreme Court case addressing Rule 23(a) in the Title VII discrimination context” and “directly on point in this case.” App. 122a. She explained that “[a]ny reasonable scrutiny of the evidence in this case compels the conclusion that although the six plaintiffs here may have individualized claims of discrimination, they cannot represent *7 a class of 1.5 million past and present employees.” Id. at 138a.
Judge Ikuta also challenged the majority's invocation of Rule 23(b)(2), not only because it “br[oke] with the Second Circuit … as well as the Fifth, Sixth, Seventh, and Eleventh Circuits” and “creat[ed a] three-way circuit split” (App. 154a n.25), but also because it conflicts with the Rule's language and history and with this Court's precedents and the Rules Enabling Act. Id. at 154a-160a. And she established that this case cannot be tried in a manner that protects the statutory and constitutional rights of Wal-Mart and the absent class

members. Id. at 145a-147a.
d. Chief Judge Kozinski also wrote a separate dissent, directly responding to Judge Graber's concurrence: Maybe there'd be no difference between 500 employees and 500,000 employees if they all had similar jobs, worked at the same half-billion square foot store and were supervised by the same managers. But the half-million members of the majority's approved class held a multitude of jobs, at different levels of Wal-Mart's hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a kaleidoscope of supervisors (male and female), subject to a variety of regional policies that all differed depending on each class member's job, location and period of employment.
App. 161a. “They have little in common,” he concluded, “but their sex and this lawsuit.” Ibid.
*8 REASONS FOR GRANTING THE PETITION
The class certified by the district court was estimated to include over 1.5 million former and current female Wal-Mart employees who held different jobs in different stores in different States under the supervision of different managers. The class is larger than the active-duty personnel in the Army, Navy, Air Force, Marines, and Coast Guard combined - making it the largest employment class action in history by several orders of magnitude. See App. 244a. The majority decision conflicts with every pertinent decision of this Court and many decisions of other circuits on n umerous important, recurring issues in class-action litigation, both in discrimination cases and generally.
This Court has cautioned against “judicial inventiveness” in class-action procedure, warning that “the rulemakers' prescriptions for class actions may be endangered by those who embrace Rule 23 t oo enthusiastically just as they are by those who approach the Rule with distaste.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620, 629 ( 1997) (internal quotation marks and alterations omitted). The Court has therefore “call[ed] for caution” where, as here, “individual stakes are high and disparities among class members great.” Id. at 625. The majority's decision demonstrates that “the certification in this case does not follow the counsel of caution.” Ibid.
As attested by the widespread attention this case has

received in the national and academic press, it is one of the most important class-action decisions since the modern Rule 23 was adopted in 1966 and warrants this Court's review.
*9 I. This Court Should Grant Review To Decide Whether And How Rule 23(b)(2) Applies To Monetary Claims And Resolve The Three-Way Conflict On
This Question
The majority decision expressly created a three-way circuit split on the standard for determining whether claims for monetary relief can be certified under Rule 23(b)(2). App. 85a-88a. The Ninth Circuit rejected the minority standard (applied now only in the Second Circuit) as well as the majority standard (applied in every other circuit to have considered the issue) in favor of a new multi-factor inquiry. This conflict warrants review, and all the more so because the Ninth Circuit's decision is so problematic. The issue frequently arises in class-action litigation and should be resolved consistently regardless of the forum in which suit is brought.
Rule 23(b)(2) allows class certification if the defendant “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphases added). Certification under Rule 23(b)(2) is “mandatory” - it does not require notice to absent class members, and it does not permit them to opt out of the class. See Ortiz v. Fibreboard Corp., 527 U.S. 815, 842-47 (1999).
This Court has recognized the constitutional problems inherent in an overbroad application of mandatory certifications, id. at 842, and it has suggested that “actions seeking monetary damages … can be certified only under Rule 23(b)(3), which permits opt-out,” requires notice to absent class members, and imposes strict requirements of predominance,*10 superiority, and manageability, “and not under [Rule 23(b)(2)], which do[es] not,” Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (per curiam); see also Amchem, 521 U.S. at 614-17. The Court has explained that Rule 23(b)(3)'s “predominance” requirement - which provides that common issues must “predominate” over individual issues - is a “vital prescription” governing monetary claims that is “far more demanding” than Rule 23(a)'s commonality requirement. Amchem, 521

U.S. at 622-24. Plaintiffs here cannot meet the Rule 23(b)(3) requirements, which is why they are invoking Rule 23(b)(2).
This Court has twice granted certiorari to consider variants of this issue. Adams v. Robertson, 520 U.S. 83 (1997) (per curiam); Ticor, 511 U.S. 117. In neither case, however, did the Court ultimately decide whether, or in what circumstances, Rule 23(b)(2) can be used to certify monetary claims.
This case is an ideal vehicle for providing much-needed clarity to the lower courts on this important and recurring question of class-action procedure.
A. The Circuits Have Split Three Ways
Although Rule 23(b)(2) authorizes certification only of claims for “injunctive relief or corresponding declaratory relief,” some courts have relied on an Advisory Committee Note - which says that this provision does not apply where the relief sought “relates … predominantly to money damages” - to conclude that Rule 23(b)(2) allows certification of some monetary claims. Even before the Ninth Circuit's decision in this case, there was an acknowledged “split among circuits on how a court determines whether monetary relief predominates in a Rule 23(b)(2) class suit.” Richards v. Delta Air Lines, Inc., 453 F.3d 525, 531 n.8 (D.C. Cir. 2006). The Ninth Circuit's decision*11 “aggravate[d] the already-existing inconsistency between the circuits” by creating a “three-way circuit split.” App. 154a n.25 (Ikuta, J., dissenting).
The Fifth, Sixth, Seventh, and Eleventh Circuits have adopted the so-called “incidental damages” test, which prohibits certification under Rule 23(b)(2) where plaintiffs seek monetary relief unless the relief sought will “flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998); see also Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639, 649-50 (6th Cir. 2006); Cooper v. Southern Co., 390 F.3d 695, 720 (11th Cir. 2004); Lemon v. Int'l Union of Operating Eng'rs, 216 F.3d 577, 580-81 (7th Cir. 2000); cf. Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 n.25 (4th Cir. 2006).
The Second Circuit, in contrast, has expressly rejected

Allison's “incidental damages” standard, adopting instead a standard that turns on plaintiffs' subjective intent in bringing suit. Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 164 (2d Cir. 2001). Until the decision below, the Ninth Circuit agreed, Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir. 2003), and both the district court and the three-judge panel followed Molski. See App. 237a; 509 F.3d at 1186; 474 F.3d at 1234.
The Ninth Circuit criticized and expressly rejected both of these conflicting lines of authority - deriding its own Robinson-Molski standard as “fatally flawed,” “troubling,” “nebulous,” “incomplete,” and “imprecise” (App. 86a) - but nonetheless affirmed the certification order. Id. at 86a-87a; id. at 154a n.25 (Ikuta, J., dissenting). For a new test, the court looked not to the language of Rule 23(b)(2) itself,*12 but instead to what it described as the “advisory committee requirement” that “the appropriate final relief” not relate “exclusively or predominantly to money damages.” Id. at 85a (emphasis added).
The majority announced that, to satisfy Rule 23(b)(2), “a class must seek only monetary damages that are not ‘superior in strength, influence, or authority’ to injunctive and declaratory relief” (App. 86a (quoting Merriam-Webster's Collegiate Dictionary 978 (11th ed. 2004))), as determined using “[f]actors such as whether the monetary relief sought determines the key procedures that will be used, whether it introduces new and significant legal and factual issues, whether it requires individualized hearings, and whether its size and nature - as measured by recovery per class member - raise particular due process and manageability concerns.” Id. at 88a. Under this amorphous new test, “no single factor would be determinative” (ibid.), and the court “should also consider any other factors relevant to whether monetary relief predominates.” Id. at 97a (emphasis added).
The majority, however, deemed one factor irrelevant: the total amount of monetary relief sought. See App. 89a. In other words, in deciding whether the “strength, influence, or authority” of the monetary relief request outweighs that of injunctive relief, it is irrelevant that the class members are seeking billions of dollars for their alleged individual injuries.
B. The Ninth Circuit's Standard Is Clearly Wrong

None of the three existing standards is wholly consistent with Rule 23(b)(2)'s language and structure. Limited by its terms to injunctive or corresponding*13 declaratory relief, this provision does not authorize certification of any claims for monetary relief. Cf. Ticor, 511 U.S. at 121. But the Ninth Circuit's new standard marks the most dramatic departure from the Rule's text and history and cannot be squared with this Court's decision in Ortiz.
Ortiz, which defined the bounds and characteristics of a permissible Rule 23(b)(1) “limited fund” class action, teaches that the mandatory provisions of Rule 23(b) must be applied carefully to ensure that the procedural class-action device does not impair the rights of either the defendant or absent class members. App. 138a-140a (Ikuta, J., dissenting). The mandatory provisions can be used to certify only classes that rest comfortably within the historical antecedents of Rule 23(b). Ortiz, 527 U.S. at 842-45. The cases cited by the Advisory Committee to illustrate the mandatory Rule 23(b)(2) category are vintage, Brown-era desegregation actions. App. 149a n.22 (Ikuta, J., dissenting) (citing cases). They bear no relation to a modern intentional discrimination case, which is essentially a tort claim for unliquidated damages. See ibid.; Price Waterhouse v. Hopkins, 490 U.S. 228, 264 ( 1989) (O'Connor, J., concurring in judgment).
Rule 23(b)(2) expressly permits certification only of claims brought on “grounds that apply generally to the class” such that prospective relief “is appropriate respecting the class as a whole”; appellate courts have construed these requirements under the rubric of “cohesion.” Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998) (collecting cases). Especially where, as here, monetary relief depends on the unique circumstances of each individual class member's case and does not automatically flow from a cl ass-wide finding of liability, no such natural cohesiveness*14 exists and certification under Rule 23(b)(2) is inappropriate. Allison, 151 F.3d at 413; see also Thorn, 445 F.3d at 330; Lemon, 216 F.3d at 580.
Moreover, due process requires both notice and the opportunity to opt out of the class in actions seeking monetary relief. See Ortiz, 527 U.S. at 848; Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985). No provision of Rule 23 authorizes opt-outs in (b)(2) actions - in sharp contrast to (b)(3), which requires opt-outs. See Ticor, 511 U.S. at 121. Although some

courts, including the, district court here (App. 243a), have purported to confer opt-out rights on (b)(2) class members, Rule 23 does not authorize this procedure and this Court has repeatedly warned the lower courts against re-writing the Rule. Amchem, 521 U.S. at 620; see also Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993); Harris v. Nelson, 394 U.S. 286, 298 (1969).
Indeed, the very fact that the district court saw the need to create opt-out rights (App. 243a) signals that this case is not appropriate for (b)(2) certification. See Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 976 (5th Cir. 2000); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 897-99 (7th Cir. 1999). The Ninth Circuit's ruling that the district court could dispense with such notice and opt-out rights as to billions of dollars of backpay claims (see App. 99a-100a) does not cure the problem; rather, it violates due process.
In any event, even if some monetary claims could be certified under Rule 23(b)(2), the claims for monetary relief “predominate” in this case under any standard because at least two-thirds of the class members are former employees who lack standing to *15 secure injunctive or declaratory relief. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). As other circuits hold, “certification under Rule 23(b)(2) is appropriate only if members of the proposed class would benefit from the injunctive relief they request.” In re Monumental Life Ins. Co., 365 F.3d 408, 416 (5th Cir. 2004); see also, e.g., In re New Motor Vehicles Canadian Exp. Antitrust Litig., 522 F.3d 6, 15-16 (1st Cir. 2008). Although the majority of the class is constitutionally precluded from seeking the injunctive or corresponding declaratory relief that is actually authorized by Rule 23(b)(2), the Ninth Circuit purported to “solve” this problem by limiting the class to those persons who were employed on or after the date the operative complaint was filed. App. 100a-102a. But a plaintiff who left the company the day after the complaint was filed has no more standing to obtain injunctive or declaratory relief than a person who quit the day before; each plaintiff must have standing to secure the requested relief throughout the lawsuit. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
The fact that plaintiffs are seeking monetary relief in the form of backpay, as opposed to compensatory damages, does not alter the predominance inquiry.

While backpay is a f orm of monetary relief that has been characterized by some courts as equitable, it is simply monetary compensation for lost pay. “Congress treated backpay as equitable in Title VII only in the narrow sense that [Title VII] allowed backpay to be awarded together with equitable relief.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 n .4 (2002) (internal quotation marks, alteration and citation omitted). Although *16 the majority held that backpay is always available in a 23(b)(2) class (App. 92a), it recognized that other courts hold that backpay “weighs on the monetary side of the scale.” Id. at 91a n.40. See Thorn, 445 F.3d at 331; Eubanks v. Billington, 110 F.3d 87, 95 (D.C. Cir. 1997). Even the panel in this very case held that “Plaintiffs' request for back pay weighs against certification under Rule 23(b)(2).” 509 F.3d at 1187. As the Fourth Circuit explained, “certification under Rule 23(b)(2) is improper when the predominant relief sought is not injunctive or declaratory, even if [it] is equitable in nature.” Thorn, 445 F.3d at 331.
This Court has strongly suggested that claims for monetary relief can proceed only under Rule 23(b)(3), with its attendant procedural protections and stricter certification standards. Ortiz, 527 U.S. at 861-62; Amchem, 521 U.S. at 623-24. The Court has recognized that the constitutional dimensions of this question require absolute fidelity to the text of Rule 23. Ticor, 511 U.S. at 121. And the Court has held that courts may not alter the Rule to fit a particular case. Amchem, 521 U.So at 620. The Ninth Circuit's approval of the mandatory certification of claims collectively seeking billions of dollars in monetary relief cannot be reconciled with these precedents.
C. The Question Is Important And Recurring
The three-way circuit conflict on the applicability of Rule 23(b)(2) to claims for monetary relief warrants review. Rule 23 is a uniform federal standard that should apply equally regardless of where a lawsuit is filed. Now, however, class claims for monetary relief are subject to one standard in New York, another in California, and yet another virtually everywhere in between. This case could not have been *17 certified under the “incidental damages” standard. The district court certified the case under a d ifferent standard (Robinson-Molski) (App. 237a-240a) that the majority held was fatally flawed. Id. at 86a-87a. Although the district court plainly abused its discretion in applying

the wrong standard, Koon v. United States, 518 U.S. 81, 100 (1996), the majority nonetheless affirmed certification under a t hird, newly announced, multi-factor approach that had never been applied before.
The question whether and when monetary claims can be certified under Rule 23(b)(2) recurs repeatedly in class-action litigation. The mature and acknowledged circuit conflict will encourage forum shopping. Plaintiffs who cannot satisfy the stringent requirements of Rule 23(b)(3) (like plaintiffs here) have an incentive to bring suit under Rule 23(b)(2), in the hopes of securing a mandatory certification under the Ninth Circuit's malleable multi-factor test. Nationwide class actions will therefore gravitate to the Ninth Circuit. This Court has expressed an interest in resolving this conflict in some case. Cf. Ticor, 511 U.S. at 121. The Court should do so here, especially because the Ninth Circuit's test is incorrect and raises grave constitutional concerns.
II. The Decision Below Creates Or Exacerbates Numerous Additional Conflicts Concerning Rule 23, Title VII, The Due Process Clause, The Seventh
Amendment, And The Rules Enabling Act
The overarching question posed by this certification is whether (as the majority thought) the procedural class device can trump the demands of the substantive law, or whether (as Congress has required, *18 and this Court has repeatedly held) a class can be certified only if such certification protects the substantive rights of plaintiffs, defendants, and absent class members. See Amchem, 521 U.S. at 629 (Rule 23 “must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view”). The Ninth Circuit's subordination of the substantive law to the procedural class device runs counter to this Court's decisions construing Rule 23 and Title VII.
The Rules Enabling Act provides that procedural rules may not “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). In holding that the widely diverging intentional discrimination claims that might be held by more than a million individual employees meet Rule 23(a)'s requirements of commonality, typicality, and adequacy, the majority impermissibly relieved plaintiffs of their burden of proving an unlawfully discriminatory practice or policy that affected all class members in the same manner. And to avoid

what otherwise would be intractable manageability problems, the majority approved stripping Wal-Mart of its statutory and constitutional rights to defend itself against plaintiffs' accusations of intentional misconduct. In both respects the majority's decision remakes the substantive law in violation of the Rules Enabling Act. Ortiz, 527 U.S. at 845 (“no reading of [Rule 23] can ignore the Act's mandate”); Amchem, 521 U.S. at 612-13.
A. The Ninth Circuit Improperly Relieved Plaintiffs Of Their Burden Of Proof
According to the Ninth Circuit majority, “the district court found that Plaintiffs here have provided evidence sufficient to support their contention that *19 company-wide corporate practices and policies - including [1] excessive subjectivity in personnel decisions, [2] gender stereotyping, and [3] maintenance of a strong corporate culture - affected both compensation and promotion of all Plaintiffs in a common manner.” App. 83a. The court's rulings on these three aspects of plaintiffs' theory produced a bevy of additional conflicts.
1. Evidence of Excess Subjectivity. The district court certified plaintiffs' disparate treatment claim, which “comprises two elements: [a] an employment practice, and [b] discriminatory intent.” Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 631 (2007), superseded on other grounds by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 123 Stat. 5, 5-6.
a. The Employment Practice Element. Although “plaintiff[s] must begin by identifying the specific employment practice that is challenged,” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994 (1988) (plurality), the Ninth Circuit majority acknowledged “the absence of a s pecific discriminatory policy promulgated by Wal-Mart.” App. 59a. In fact, Wal-Mart's company-wide policy expressly bars discrimination based on gender and affirmatively promotes diversity. Id. at 195a. The majority nonetheless accepted plaintiffs' theory that the millions of pay and promotion decisions made by tens of thousands of Wal-Mart managers in thousands of stores over the course of a decade or more were all made pursuant to a company-wide “policy” of discretionary decisionmaking, which plaintiffs call “excessive subjectivity.” Id. at 163a-164a, 173a. But this Court has held that “an

employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory *20 conduct.” Watson, 487 U.S. at 990; see also id. at 991 (plurality) (“standardized testing techniques” cannot measure “common sense, good judgment, originality, ambition, loyalty, and tact”).
Accordingly, plaintiffs who premise a Title VII disparate treatment claim on a policy of “excess subjectivity” must come forward with “[s]ignificant proof that an employer operated under a general policy of discrimination” before a class can be certified; simply pointing to excess subjectivity is not enough. Falcon, 457 U.S. at 159 n.15 (rejecting class certification and establishing certification requirements for Title VII claims); see Watson, 487 U.S. at 990. As Judge Ikuta explained, such proof is required because, “to maintain a co mpany-wide class action based on discrimination, the plaintiff must bridge the ‘wide gap’ between: (1) the plaintiff's own discriminatory treatment; and (2) the existence of a class that has suffered the same injury as the plaintiff as a r esult of a co mpany-wide discriminatory policy.” App. 119a (quoting Falcon, 457 F.3d at 157).
The majority, however, dismissed. Falcon's “significant proof” standard as a “hypothetical in clear dicta” (App. 42a n.15), thereby creating a conflict with numerous decisions from other circuits, which faithfully apply Falcon in the context of “excess subjectivity” challenges. Garcia v. Johanns, 444 F.3d 625, 631-32 (D.C. Cir. 2006) (“Following Falcon, we have required a p laintiff seeking to certify a d isparate treatment class under Title VII to make a significant showing to permit the court to infer that members of the class suffered from a common policy of discrimination that pervaded all of the employer's challenged employment decisions.” (internal quotation marks omitted)); Reeb, 435 F.3d at 644 (plaintiffs must adduce “significant proof that [the employer]*21 operated under a general policy of gender discrimination manifesting itself in the same general fashion” (internal quotation marks omitted)); Griffin v. Dugger, 823 F.2d 1476, 1490 (11th Cir. 1987) (same); see also Love v. Johanns, 439 F.3d 723, 729-30 (D.C. Cir. 2006); Cooper, 390 F.3d at 716; Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 598 (2d Cir. 1986); Goodman v. Lukens Steel Co., 777 F.2d 113, 124 (3d Cir. 1985).

Although the majority asserted that its refusal to follow Falcon was consistent with the decisions of “nearly every Court of Appeals to consider the question” (App. 41a), it failed to cite any of the contrary decisions collected above and relied instead on outlier decisions from two circuits that themselves are internally conflicted. Compare Brown v. Nucor Corp., 576 F.3d 149, 153 (4th Cir. 2009) (cited at App. 43a), cert. denied, 130 S. Ct. 1720 (2010), with Holsey v. Armour & Co., 743 F.2d 199, 216 (4th Cir. 1984); and Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir. 1993) (cited at App. 78a), with Vuyanich v. Republic Nat'l Bank of Dallas, 723 F.2d 1195, 1200 (5th Cir. 1984).
The Ninth Circuit thus exacerbated a split that has existed for over two decades. See Note, Certifying Classes & Subclasses in Title VII Suits, 99 Harv. L. Rev. 619, 630-31 (1986). The majority of the circuits correctly read Falcon as requiring class plaintiffs to adduce “significant proof” of an unlawful employment policy as an element of Rule 23(a)'s commonality and typicality requirements, which ensure that the class representatives are sufficiently aligned with the absent class members to bring the asserted claims on behalf of the entire class. 457 U.S. at 157 n.13; E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).
*22 The majority rejected Falcon's “significant proof” standard because it mistakenly concluded that the existence of a c lass-wide discriminatory policy is a “merits” issue that cannot be resolved on certification. App. 43a-44a & nn.16-17. The majority's decision therefore conflicts with those from numerous other circuits, which require district courts to definitively resolve factual and legal disputes relevant to certification notwithstanding any overlap with the merits. See In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 317 & n.17 (3d Cir. 2009) (collecting cases including In re IPO Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006)). The majority departed from these authorities on the ground that they were brought under the securities and antitrust laws (App. 32a-39a), but the Federal Rules of Civil Procedure do not vary depending on the substantive law. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009). In any event, the majority decision squarely conflicts with Hohider v. United Parcel Service, Inc., 574 F.3d 169 (3d Cir. 2009), which required resolution of factual disputes going to each of the Rule 23 elements in the context of an employment discrimination claim certified under

Rule 23(b)(2). Id. at 171, 196-98.
The district court explicitly said that it was “not called upon to make any determination on the merits of Plaintiffs' allegations of gender discrimination” at the certification stage. App. 166a (emphasis added) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974)); see also id. at 170a-171a & n.5. The majority admitted that this approach conflicted with the standard applied by every circuit to have addressed the issue (id. at 52a n.20), but it affirmed the certification on the ground that a “close reading” (id. at 49a) of the order somehow revealed that the district court in fact did something other than what it said it *23 was doing. E.g., id. at 192a-193a, 198a & n.21. The majority's refusal to apply the correct standard to the central issue in this case places the Ninth Circuit squarely at odds with appellate courts in the rest of the country.
b. The Intent Element. “[T]he central element of [a disparate treatment claim] is discriminatory intent.” Ledbetter, 550 U.S. at 624; see Teamsters, 431 U.S. at 335 n.15.
The Ninth Circuit majority opinion and the district court's certification order comprise 283 pages in the printed appendix, yet nowhere is the intent element of a disparate treatment claim addressed. Numerous other courts, however, have recognized that determining whether “excess subjectivity” was exercised in an intentionally discriminatory fashion requires individualized proof. See, e.g., Garcia, 444 F.3d at 632 (“[e]stablishing commonality … is particularly difficult where, as here, multiple decisionmakers with significant local autonomy exist”).
The Ninth Circuit's decision therefore squarely conflicts with the decisions of other circuits that refuse to certify multi-facility discrimination class actions where the claim asserted requires proof of decisionmaking by managers in separate facilities. See Garcia, 444 F.3d at 632; Cooper, 390 F.3d at 715; Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 571 (6th Cir. 2004); Holsey, 743 F.2d at 216; Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980). Indeed, no other court has ever certified a class of employees who challenge the exercise of delegated discretion at thousands of facilities where the claim requires proof of decisionmaking by managers in separate facilities. This is because the essential elements of the claim, including discriminatory*24 intent and actual injury,

could never be proven on a classwide basis, as Chief Judge Kozinski succinctly explained. App. 161a; see also id. at 113a (Ikuta, J., dissenting).
The majority's failure to take into account the intent element before certifying the class conflicts with decisions of the Second and Third Circuits. Hohider, 574 F.3d at 184 (“it is necessary to … assess what elements must be demonstrated for the court to reach … a determination of unlawful discrimination and a finding of classwide liability and relief”); see McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 223-25 (2d Cir. 2008). Just as it “does not follow … that the particular supervisors to whom this discretion is delegated always act without discriminatory intent,” Watson, 487 U.S. at 990, it simply cannot be assumed that each of them acted with discriminatory intent regarding millions of pay and promotion decisions. Proof that an individual store manager intended to treat a woman or group of women differently because of their sex - a necessary element of plaintiffs' disparate treatment claim - therefore destroys commonality and typicality under Rule 23(a).
2. Evidence of Gender Stereotyping. Plaintiffs relied heavily on the notion, propounded by one of their experts, that Wal-Mart and other large organizations are “vulnerable to gender bias.” App. 55a. In response to Wal-Mart's objection that this “opinion” is unreliable and inadmissible (see John Monahan et al., Essay, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747-48 (2008)), the majority held that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), does not have “exactly the same application at the class certification stage as it does to expert testimony … at trial.” App. 57a n.22. But *25 as the dissent pointed out, “the majority never … explain[ed] why the district court can rely on an expert's testimony that is not reliable, at the class certification stage or any other.” Id. at 136a n.16. By “erroneously approv [ing] the district court's reliance on an arguably unreliable expert opinion” (id. at 137a), the majority created a co nflict with the Second, Third, Fifth, and Seventh Circuits, which hold that Daubert applies with equal force at class certification. See, e.g., Am. Honda Motor Co. v. Allen, 600 F.3d 813, 817-18 (7th Cir. 2010) (per curiam); Hydrogen Peroxide, 552 F.3d at 315 n.13; McLaughlin, 522 F.3d at 232; IPO, 471 F.3d at 42; Unger v. Amedisys Inc., 401 F.3d 316, 323 n.6 (5th Cir. 2005); see also App. 135a (Ikuta, J.,

dissenting). This too warrants review by this Court.
3. Evidence of “Corporate Culture.” According to the majority, “Plaintiffs produced substantial evidence of Wal-Mart's centralized firm-wide culture and policies, thus providing a nexus between the subjective decision making and the considerable statistical evidence demonstrating a pattern of lower pay and fewer promotions for female employees.” App. 78a (citation omitted). This observation obscures a key dispute between the parties' statistical experts: Although plaintiffs' theory centers on decisions made by individual store managers, their expert aggregated the data at the national or regional level. Wal-Mart's expert, however, concluded that “when data is considered at the store level, over 90 percent of Wal-Mart's stores showed no statistical difference in the hourly pay rates between men and women associates with similar work-related characteristics.” Id. at 130a-131a (Ikuta, J., dissenting) (emphasis added).
*26 The district court refused to resolve the appropriate level of aggregation (calling it a “merits” issue, App. 197a-198a), and the Ninth Circuit majority approved this refusal on the ground that “[t]he disagreement [between the parties' experts] is the common question,” and certified the class without resolving this critical dispute. Id. at 71a. As the dissent explained, “[t]he district court's superficial examination of [plaintiffs'] statistics constituted legal error.” Id. at 129a. The Ninth Circuit's approval of the district court's approach “amounts to a delegation of judicial power to the plaintiffs, who can obtain class certification just by hiring a competent expert.” West v. Prudential Sec., Inc., 282 F.3d. 935, 938 (7th Cir. 2002). It conflicts with the decisions of numerous other circuits, which recognize that disputes among the experts relating to the Rule 23 factors must be resolved on certification. See, e.g., Hydrogen Peroxide, 552 F.3d at 323-24; McLaughlin, 522 F.3d at 232; IPO, 471 F.3d at 42; In re PolyMedica Corp. Sec. Litig., 432 F.3d 1, 5-6, 19 (1st Cir. 2005); West, 282 F.3d at 938.
This is not simply an issue of the size of the company or the class. Compare App. 112a (Graber, J., concurring), with id. at 161a (Kozinski, C.J., dissenting). Rather, where (as here) a disparate treatment claim is premised on discretionary decisionmaking, the class at a minimum must bear some relation to the decisionmaking unit (region, store, department, etc.). Cf. 42

U.S.C. § 2000e -5(f)(3). The Ninth Circuit, however, certified a class that is not so limited; on the contrary, it is precisely the type of “across-the-board” class that this Court condemned in Falcon. 457 U.S. at 157.
*27 B. The Ninth Circuit Improperly Stripped Wal-Mart Of Its Right Of Defense
1. Aggregated disparate treatment claims typically proceed in two stages. Teamsters, 431 U.S. at 336, 361-62; Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 n.9 (1984). First, the plaintiffs must prove that “discrimination was the company's standard operating procedure.” Teamsters, 431 U.S. at 336. If they carry this burden, a rebuttable presumption arises that each class member is entitled to appropriate relief. Id. at 361. At the second stage, “a district court must usually conduct additional proceedings … to determine the scope of individual relief” and afford the employer the opportunity “to demonstrate that the individual … was denied an employment opportunity for lawful reasons.” Id. at 362.
The district court acknowledged that “holding individual hearings for the number of women potentially entitled to backpay in this case is impractical on its face, and thus the traditional Teamsters mini-hearing approach is not feasible here.” App. 251a (emphases added). But rather than refusing to certify the class, the court did away with individualized hearings altogether, concluding that Wal-Mart's insistence on individualized proceedings “is inconsistent with the fundamental character of the class action proceeding.” Id. at 245a. “That this shortcut was necessary in order for this suit to proceed as a class action should have been a caution signal to the district court that class-wide proof of damages was impermissible.” Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 343 (4th Cir. 1998).
*28 An employer has a statutory, as well as a constitutional, right to an individualized defense. Congress has expressly provided that, if the employer proves that it to ok an employment action “for any reason other than discrimination on account of … sex,” a court shall not order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay.” 42 U.S.C. § 2000e-5(g)(2)(A) (emphases added). And even if the adverse employment action was partially motivated by unlawful discrimination, a court may not award

damages or backpay to that employee if the employer can prove that it “would have taken the same action in the absence of the impermissible motivating factor.” Id. § 2000e-5(g)(2)(B). Thus, even where class plaintiffs can satisfy the first step of the Teamsters framework, the employer is entitled to an opportunity to rebut the claims of each individual class member under the substantive law. See Reeb, 435 F.3d at 651.
“An employer cannot be deprived of its statutory right to raise individualized defenses to claims for monetary relief merely because plaintiffs characterize their claim as a pattern or practice of discrimination and bring the suit on behalf of a class.” App. 141a (Ikuta, J., dissenting). Similarly, the Rules Enabling Act prohibits the courts from eliminating statutory defenses to accommodate Rule 23 procedure. See Amchem, 521 U.S. at 612-13; Hohider, 574 F.3d at 185. Yet that is precisely what the district court did here, in so many words: Wal-Mart “is not … entitled to circumvent or defeat the class nature of the proceeding by litigating whether every individual store discriminated against individual class members.” App. 247a. As the dissent noted, it is hard to imagine a clearer violation of the Rules Enabling*29 Act, which “prohibits a district court from depriving an employer of this right simply to facilitate the certification of a class action.” Id. at 145a.
Yet the Ninth Circuit majority nowhere grappled with the Rules Enabling Act - a statute that this Court has twice held must be applied by reviewing courts in considering challenges to class certification. Ortiz, 527 U.S. at 845; Amchem, 521 U.S. at 612-13. Indeed, as the dissent explained, “the majority fail[ed] to address the specific legal and factual framework of Title VII or consider how it i mpacts the certification of plaintiffs' proposed class.” App. 139a-140a. In fact, the majority expressly recognized that, as to some class members, “unequal pay or nonpromotion was due to something other than gender discrimination,” but nonetheless endorsed procedures that barred Wal-Mart from presenting its ordinarily available defenses to those claims. Id. at 110a n.56.
The majority's approach directly conflicts with the decisions of other circuits, which refuse to certify a class if the substantive law would preclude classwide treatment. See, e.g., Sullivan v. DB Invs., Inc., __ F.3d __, 2010 WL 2736947, at *11 (3d Cir. July 13, 2010) (vacating certification “extend[ing] antitrust remedies

that … have no root in state substantive law”); McLaughlin, 522 F.3d at 225; Thorn, 445 F.3d at 323-24. It also conflicts with decisions recognizing that certification is inappropriate where numerous individualized hearings would be necessary. In re Allstate Ins. Co., 400 F.3d 505, 508 (7th Cir. 2005) (reversing (b)(2) certification where “more than a thousand individual hearings” would be required regarding damages); Lemon, 216 F.3d at 581; Allison, 151 F.3d at 419-20. As the dissent points out, the answer is not to dispense with the element that is *30 incompatible with class certification, but rather to deny certification. App. 146a.
2. The majority's decision also violates Wal-Mart's “right to litigate the issues raised,” which is “guaranteed … by the Due Process Clause,” United States v. Armour & Co., 402 U.S. 673, 682 (1971), and includes the right “to present every available defense,” Lindsey v. Normet, 405 U.S. 56.66 (1972) (internal quotation marks omitted). The. consequences are dire. Wal-Mart will be precluded, from proving that its managers did not discriminate against individual class members, and uninjured class members will be allowed to collect backpay at the expense of the actually injured. The district court recognized as much, labeling this “rough justice.” App. 254a.
a. The district court's suggested approach of trying the case through use of formulas to estimate the amount of monetary relief (App. 251a-.258a), and the Ninth Circuit's invocation of the statistical sampling method used in Hilao, 103 F.3d at 782-87 (App. 105a-110a), to estimate the number of people injured squarely conflict with the Second Circuit's decision in McLaughlin, which held that “[r]oughly estimating the gross damages to the class as a w hole and only subsequently allowing for the processing of individual claims would inevitably alter defendants' substantive right to pay damages reflective of their actual liability” in violation of the Rules Enabling Act and due process. 522 F.3d at 231-32.
b. In addition, while the Ninth Circuit vacated and remanded the portion of the certification order related to punitive damages, it suggested that the district court nonetheless might be able to certify the punitive damages claims under Rule 23(b)(2) or (b)(3) and resolve such claims without regard to individual *31 issues. App. 98a-99a. This ruling conflicts with numerous decisions that have rejected adjudication of

punitive damages on a class-wide basis because it requires individualized and fact-specific inquiries. See, e.g., Reeb, 435 F.3d at 651; Cooper, 390 F.3d at 721; Lemon, 216 F.3d at 581; Allison, 151 F.3d at 418. And in Philip Morris USA v. Williams, 549 U.S. 346 (2007), this Court squarely held that “the Due Process Clause prohibits a State from punishing an individual without first providing that individual with an opportunity to present every available defense.” Id. at 353 (emphasis added) (internal quotation marks omitted).
It would also violate Wal-Mart's Seventh Amendment rights if a jury did not resolve all factual issues related to punitive damages. See Tull v. United States, 481 U.S. 412, 422-23 (1987); see also Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355 (1998). Other circuits have held that adjudicating claims for compensatory and punitive damages in a Rule 23(b)(2) class raises Seventh Amendment problems. See Hohider, 574 F.3d at 202 n .26; Allison, 151 F.3d at 419-22.
c. Absent class members fare no better. Without individualized hearings, non-victims would be overcompensated at the expense of anyone who was actually injured, as the district court recognized. App. 254a; 474 F.3d at 1244, 1249 (Kleinfeld, J., dissenting). The majority's acknowledgement that “a few nonvictims might also benefit from the relief” (App. 110a n.57 (quoting Segar v. Smith, 738 F.2d 1249, 1291 (D.C. Cir. 1984))) hardly commends the approach. See Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 579 (1984) (Title VII relief limited to “actual victims” of illegal discrimination).
*32 3. Finally, the majority's failure to require a trial plan conflicts with decisions of other circuits. Hohider, 574 F.3d at 202; Hydrogen Peroxide, 552 F.3d at 311-12; Wachtel v. Guardian Life Ins. Co., 453 F.3d 179, 189 (3d Cir. 2006). Rule 23(c)(1)(B) requires the certification order to set forth the “class claims, issues, [and] defenses.” Yet the Ninth Circuit found no error in the district court's failure to adhere to this mandatory provision.
The Ninth Circuit wrongly held that Rule 23(a) does not require the district court to determine “how the facts at issue would play out … in the merits of the litigation.” App. 38a. Contrary to the Ninth Circuit's conclusion (id. at 31a), it is not enough for the case to present mere common “questions”; the answers to

those questions must be found in a lawful and fair trial proceeding. The impracticability of allowing Wal-Mart to present statutory and constitutional defenses does not mean that the defenses can be eliminated; rather, it means that the class is not manageable and should not be certified. See McLaughlin, 522 F.3d at 223-25.
The district court's trial plan was hopelessly deficient, yet the majority (after refusing to address Wal-Mart's objections) said that “the option proposed by the district court may also remain viable.” App. 110a n.57. The majority also encouraged the district court, on remand, to consider the statistical sampling approach adopted in Hilao, 103 F.3d at 782-87 (App. 105a-110a) - an approach that violates basic due process principles and has never been adopted by any other court. See App. 124a-128a (Ikuta, J., dissenting). For the majority even to suggest that Hilao, an “extraordinarily unusual” case involving claims against a foreign dictator who pillaged his country and terrorized its population, *33103 F.3d at 786, has any applicability whatsoever in a Title VII case against America's largest private employer underscores the need for this Court's review.
C. The Issues Are Important and Recurring
The unprecedented certification order here stands at the intersection of Title VII and Rule 23, in the shadow of the Rules Enabling Act and constitutional constraints. It implicates numerous circuit splits on important and recurring issues.
The plaintiffs secured mandatory certification of this unprecedented class on the ground that Wal-Mart's delegation of decentralized decisionmaking authority to local managers opened a “conduit” for gender bias, a charge that can be levied against every organization of any size (including the federal government). See Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 159 (2009) (“[T]he disparities in pay or promotion at Wal-Mart roughly track those across the economy more broadly”). If the Ninth Circuit decision in this case stands, virtually every employer in the land could be subject to a similar suit. App. 160a (Ikuta, J., dissenting) (“the door is now open to Title VII lawsuits targeting national and international companies, regardless of size and diversity, based on nothing more than general and conclusory allegations”). And although Title VII does

not require employers to adopt “quotas and preferential treatment” to “avoid [] expensive litigation and potentially catastrophic liability,” the Ninth Circuit's decision will have precisely the “chilling effect on legitimate business practices” that the Court has sought to avoid. Watson, 487 U.S. at 993 (plurality). This Court's guidance is needed in this case to chart the future *34 course of class litigation in the employment context and beyond.
As the sharp division in the court below establishes, this case exposes widespread conflict and uncertainty regarding the appropriate standards for certifying class actions. This uncertainty is unfair and unjust for all involved, including class representatives, absent class members, and defendants. This Court's review is necessary to provide much-needed clarity and to ensure that the ends of justice are served.
CONCLUSION
The petition for a writ of certiorari should be granted.
Wal-Mart Stores, Inc. v. Dukes 2010 WL 3355820 (U.S.) (Appellate Petition, Motion and Filing )
END OF DOCUMENT

 
 Supreme Court of the United States.
WAL-MART STORES, INC., Petitioner, v.
Betty DUKES, et al., Respondents. No. 10-277.
January 20, 2011.
On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit
Brief for Petitioner
Theodore B. Olson Mark A. Perry Amir C. Tayrani Gibson, Dunn & Crutcher LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 (202) 955-8500 Theodore J. Boutrous, Jr. Counsel of Record Rachel S. Brass Theane Evangelis Kapur Gibson, Dunn & Crutcher LLP 333 South Grand Avenue Los Angeles, CA 90071 (213) 229-7000 tboutrous@gibsondunn.com Counsel for Petitioner
QUESTIONS PRESENTED
1. Whether the class certification ordered under Federal Rule of Civil Procedure 23(b)(2) was consistent with Rule 23(a).
2. Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2) and, if so, under what circumstances.
PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT
The caption to the petition for a writ of certiorari contains the names of all parties to the proceedings below.
The corporate disclosure statement included in the petition remains accurate.

*iii TABLE OF CONTENTS
INTRODUCTION ... 1
OPINIONS BELOW ... 2
JURISDICTION ... 2
STATUTORY PROVISIONS INVOLVED ... 2
STATEMENT ... 2
SUMMARY OF ARGUMENT ... 10
ARGUMENT ... 15
I. The Certification Order Is Not Consistent With Rule 23(a) ... 16
A. The Named Plaintiffs' Interests Are Insufficiently Interrelated With The Absent Class Members' Interests ... 18
1. Commonality ... 18
a. Plaintiffs' Theory Fails To Bridge The Falcon Gap ... 19
b. Plaintiffs' Evidence Fails To Bridge The Falcon Gap ... 23
2. Typicality ... 32
3. Adequacy ... 34
B. Procedural Defects Cannot Be Remedied By Altering The Substantive Law ... 38
1. Plaintiffs' Burden ... 39
2. Wal-Mart's Defenses ... 41
*iv II. The Certification Order Is Not Consistent With Rule 23(b)(2) ... 44
A. Rule 23(b)(2) Does Not Encompass Claims For Monetary Relief ... 46

B. Plaintiffs' Monetary Claims “Predominate” ... 50
1. The Majority Of The Class Has Standing To Seek Only Monetary Relief ... 51
2. Plaintiffs' Backpay Claims “Predominate” ... 53
3. Punitive Damages Will Always Predominate ... 55
CONCLUSION ... 57
*v TABLE OF AUTHORITIES
Cases
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937) ... 52
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 54
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ... 51, 55, 56
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ... passim
Bailey v. Patterson, 369 U.S. 31 (1962) (per curiam) ... 48
Barnes v. Am. Tobacco Co., 161 F.3d 127 (3d Cir. 1998) ... 57
BMW of N. Am., Inc. v. Gore, 517 U.S. 559 (1996) ... 43
Bolin v. Sears, Roebuck & Co., 231 F.3d 970 (5th Cir. 2000) ... 47
Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331 (4th Cir. 1998) ... 37
Califano v. Yamasaki, 442 U.S. 682 (1979) ... 15, 45
Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) ... 49

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ... 52
Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867 (1984) ... 31, 34, 41
*vi Cooper v. Southern Co., 390 F.3d 695 (11th Cir. 2004) ... passim
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) ... 25
Costa v. Desert Palace, Inc., 299 F.3d 838 (9th Cir. 2002) (en banc) ... 17, 56
Curtis v. Loether, 415 U.S. 189 (1974) ... 53
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993) ... 30
Deakins v. Monaghan, 484 U.S. 193 (1988) ... 52
Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001) ... 21
Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) (per curiam) ... 53
E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395 (1977) ... 19, 36
eBay Inc. v. MercExchange L.L.C., 547 U.S. 388 (2006) ... 54
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ... 25
Engquist v. Or. Dep't of Agric., 553 U.S. 591 (2008) ... 21
Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ... 55
Evers v. Dwyer, 358 U.S. 202 (1958) (per curiam) ... 48
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340 (1998) ... 56

*vii Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561 (1984) ... 36, 54
Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ... 54
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) ... 23
Garcia v. Johanns, 444 F.3d 625 (D.C. Cir. 2006) ... 24, 40
Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997) ... 30
Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318 (1980) ... 12, 32, 34, 35
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147 (1982) ... passim
Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002) ... 53
Hansberry v. Lee, 311 U.S. 32 (1940) ... 35, 36
Harris v. Nelson, 394 U.S. 286 (1969) ... 47
Hartman v. Duffey, 19 F.3d 1459 (D.C. Cir. 1994) ... 21
Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330 (11th Cir. 2006) ... 54
Hohider v. UPS, 574 F.3d 169 (3d Cir. 2009) ... 40, 41, 54
Honda Motor Co. v. Oberg, 512 U.S. 415 (1994) ... 56
*viii In re Hotel Tel. Charges, 500 F.2d 86 (9th Cir. 1974) ... 55
In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008) ... 26
In re IPO Sec. Litig., 471 F.3d 24 (2d Cir. 2006) ... 18, 26, 31
Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ... 13, 31, 41, 42

Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894 (7th Cir. 1999) ... 47
Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999) ... 57
Koon v. United States, 518 U.S. 81 (1996) ... 18
Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485 (2010) ... 46, 50
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) ... 30
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993) ... 46, 47
Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007) ... 26, 39
Lemon v. Int'l Union of Operating Eng'rs, 216 F.3d 577 (7th Cir. 2000) ... 51, 55
Lewis v. City of Chicago, 130 S. Ct. 2191 (2010) ... 16, 26, 39
Libretti v. United States, 516 U.S. 29 (1995) ... 46
*ix Lindsey v. Normet, 405 U.S. 56 (1972) ... 43
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ... 52
McLaughlin v. Am. Tobacco Co., 522 F.3d 215 (2d Cir. 2008) ... 40, 55
McManus v. Fleetwood Enters., Inc., 320 F.3d 545 (5th Cir. 2003) ... 47
Mooney v. Aramco Servs. Co., 54 F.3d 1207 (5th Cir. 1995) ... 31
Morgan v. UPS, 380 F.3d 459 (8th Cir. 2004) ... 24, 38
O'Shea v. Littleton, 414 U.S. 488 (1974) ... 52
Ortiz v. Fibreboard Corp., 527 U.S. 815 ( 1999) ...

passim
Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) ... 27
Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ... 53, 54
Philip Morris USA v. Williams, 549 U.S. 346 (2007) ... 56
Philip Morris USA Inc. v. Scott, 131 S. Ct. 1 (2010) (Scalia, Circuit Justice) ... 40
Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) ... 14, 36, 47
Potts v. Flax, 313 F.2d 284 (5th Cir. 1963) ... 48
*x Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... passim
Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639 (6th Cir. 2006) ... 43, 49, 51
Ricci v. DeStefano, 129 S. Ct. 2658 (2009) ... 27
Richards v. Jefferson Cnty., 517 U.S. 793 (1996) ... 47
Schmuck v. United States, 489 U.S. 705 (1989) ... 46
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010) ... 41
Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir. 1993) ... 55
Sosna v. Iowa, 419 U.S. 393 (1975) ... 44, 46
S. Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160 (1999) ... 47
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008) ... 26
Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267 (4th Cir. 1980) ... 22

State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ... 56 Taylor v. Sturgell, 553 U.S. 880 (2008) ... 15, 38
Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311 (4th Cir. 2006) ... 51, 53, 54 *xi Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) (per curiam) ... 15, 46
Tull v. United States, 481 U.S. 412 (1987) ... 56
United States v. Armour & Co., 402 U.S. 673 (1971) ... 43
Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) ... 26 Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ... passim
Constitutional Provisions U.S. Const. amend. v ... 15, 36, 43, 56
U.S. Const. amend. vii ... 56
Statutes 28 U.S.C. § 1254(1) ... 2
28 U.S.C. § 2072(b) ... 13, 15, 39, 42, 43, 55
42 U.S.C. § 1981a(a)(1) ... 17 42 U.S.C. § 1981a(b)(1) ... 17, 56, 57
42 U.S.C. § 1988 ... 51
42 U.S.C. § 2000e-2 ... 16 42 U.S.C. § 2000e-2(j) ... 27
42 U.S.C. § 2000e-2(k)(1)(A)(i) ... 39
42 U.S.C. § 2000e-2(m) ... 17

42 U.S.C. § 2000e-3(a) ... 33 42 U.S.C. § 2000e-5(f)(3) ... 38 42 U.S.C. § 2000e-5(g)(1) ... 16 42 U.S.C. § 2000e-5(g)(2) ... 34, 40, 43, 54, 56 *xii 42 U.S.C. § 2000e-5(g)(2)(A) ... 17, 42 42 U.S.C. § 2000e-5(g)(2)(B) ... 42 42 U.S.C. § 2000e-5(g)(2)(B)(ii) ... 17, 36 Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071 ... 26, 48 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5 ... 26 Rules Fed. R. Civ. P. 23 ... passim Fed. R. Civ. P. 23(a) ... passim Fed. R. Civ. P. 23(a)(2) ... 18 Fed. R. Civ. P. 23(a)(3) ... 32 Fed. R. Civ. P. 23(a)(4) ... 34 Fed. R. Civ. P. 23(b) ... 14 Fed. R. Civ. P. 23(b)(1) ... 44, 45 Fed. R. Civ. P. 23(b)(2) ... passim Fed. R. Civ. P. 23(b)(3) ... 14, 44, 45, 47, 48, 49 Fed. R. Civ. P. 23(c) ... 46 Fed. R. Civ. P. 23(c)(2) ... 38, 45 Fed. R. Evid. 702 ... 30 Other Authorities

Advisory Committee Notes, 39 F.R.D. 69 (1966) ... 14, 44, 48, 50
Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. Chi. Legal F. 475 ... 22
*xiii John Monahan et al., Essay, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715 (2008) ... 30
Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97 (2009) ... 22, 23, 29
Statement on Behalf of the Advisory Committee on Civil Rules (June 10, 1965) ... 45
INTRODUCTION
The Ninth Circuit's decision allowing this class action to proceed contradicts Federal Rule of Civil Procedure 23, departs from this Court's precedent, and endorses an approach that would abrogate the substantive and procedural rights of both Wal-Mart and absent class members.
The certification order is flatly inconsistent with Rule 23(a)'s prerequisites. The class members - potentially millions of women supervised by tens of thousands of different managers and employed in thousands of different stores throughout the country - assert highly individualized, fact-intensive claims for monetary relief that are subject to individualized statutory defenses. The named plaintiffs' claims cannot conceivably be typical of the claims of the strangers they seek to represent. These intractable problems are compounded by a virtually boundless class definition that produces an across-the-board class pervaded by conflicts among its members. This kaleidoscope of claims, defenses, issues, locales, events, and individuals makes it impossible for the named plaintiffs to be adequate representatives of the absent class members.
Nor can the certification order be reconciled with the requirements of Rule 23(b)(2), which is limited by its terms to claims for “injunctive relief or corresponding declaratory relief.” Plaintiffs seek billions of dollars in individual monetary relief, yet seek to evade the ad-

ditional procedures required for fair adjudication of monetary claims, including notice and opt-out rights for absent class members.
The certification order is harmful to the rights of everyone involved. It distorts basic principles of class-action and anti-discrimination law, eviscerates fundamental procedural protections for class-action defendants, and allows three class representatives to extinguish the rights of millions of absent class members without even telling them about it. The decision below should be reversed, and the class decertified.
OPINIONS BELOW
The Ninth Circuit's en banc opinion (Pet. App. 1a-161a) is published at 603 F.3d 571. Superseded panel opinions are reported at 509 F.3d 1168 and 474 F.3d 1214. The district court's certification order (Pet. App. 162a-283a) is published at 222 F.R.D. 137. A related evidentiary order is published at 222 F.R.D. 189.
JURISDICTION
The Ninth Circuit's judgment was entered on April 26, 2010. Justice Kennedy extended the time for filing the petition for a writ of certiorari to August 25, 2010. No. 10A19. The petition was filed on that date and granted on December 6, 2010. This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent provisions of the Civil Rights Act of 1964 (as amended), the Rules Enabling Act, and Rule 23 are reproduced in this briefs appendix.
STATEMENT
The district court certified under Rule 23(b)(2) a class of “[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998, who have been or may be subjected to Wal-*3 Mart's challenged pay and management track promotions policies and practices.” Pet. App. 283a. The Ninth Circuit, in a 6-5 en banc decision, affirmed in substantial part. Id. at 99a-102a.

1. Wal-Mart is the Nation's largest private employer. At the time of class certification (in 2004), Wal-Mart's U.S. retail operations comprised 7 di visions, 41 r egions, 400 di stricts, 3,400 stores, and more than 1,000,000 employees. Pet. App. 163a; see also id. at 114a (Ikuta, J., dissenting). Each store employed 80 to 500 people, with hourly employees assigned to 53 departments in 170 different job classifications. Ibid.
Wal-Mart's company-wide policy, then and now, expressly bars discrimination based on sex, and Wal-Mart has consistently promulgated and enforced equal opportunity policies to foster diversity, ensure fair treatment, and prohibit unlawful discrimination. Pet. App. 195a; J.A. 1576a-1596a. As the district court recognized, “Wal-Mart has earned national diversity awards and its executives discuss diversity and include it in company handbooks and trainings. The company has diversity goals, performance assessments, and penalties for EEO violations.” Pet. App. 195a (citations omitted).
When the complaint was filed in 2001, individual store managers had “substantial discretion in making salary decisions for hourly employees in their respective stores” and “promotion decisions for in-store employees.” Pet. App. 177a, 180a. Wal-Mart's policies cabined that discretion by setting salary ranges and establishing objective standards for its local managers to apply when making these decisions. J.A. 1468a-1469a, 1498a-1511a, 1609a, 1616a; D.C. Dkt. 270-508.
*4 2. Only three of the named plaintiffs remain members of the certified class. See Pet. App. 115a (Ikuta, J., dissenting). They worked at different stores, at different times, in different positions, for different managers. They were promoted to (and demoted from) different jobs, disciplined for different offenses, paid different amounts for performing different jobs, applied for different management training opportunities (or not), and kept working (or not) for different reasons. J.A. 606a-624a, 743a-749a, 997a-1006a. Their testimony illustrates their differing experiences:
a. Edith Arana worked at the Duarte, California store from 1995 to 2001. J.A. 606a. She worked in a number of different positions and was promoted and received numerous raises. Id. at 606a-618a. In 2000, she approached the store manager regarding management training; on one occasion the manager “did not reply”

but “simply shrugged his shoulders and walked away,” and on another the manager “did not respond and brushed [her] off.” Id. at 614a. Ms. Arana concluded that the manager “was denying [her] the opportunity to advance with the Company because [she] was a woman.” Id. at 614a-615a. She initiated internal complaint procedures, after which a ( female) supervisor advised Ms. Arana to “apply directly to the District Manager” if she had concerns with her store manager. Id. at 616a-617a. Ms. Arana, however, “decided against this,” and she never again applied for management training. Id. at 617a-623a. The following year, she was fired for failure to comply with Wal-Mart's timekeeping policies. Id. at 623a; C.A. App. 337-340.
b. Betty Dukes was hired as a cashier at the Pittsburg, California store in 1994. J.A. 743a-745a. She sought and received a p romotion to customer *5 service manager. Id. at 745a-748a. Ms. Dukes's “eligibility for [further] promotion was limited,” however, by a series of disciplinary violations, which led to her demotion to cashier and then (after an unspecified injury) to greeter. Id. at 745a-746a. She does not deny violating company policy, but maintains that the disciplinary actions were “retaliat[ion]” (by a female supervisor) for invoking internal complaint procedures and asserts that she is “not aware of any male employees who have been disciplined for similar transactions.” Ibid. She also claims that two male greeters in the Pittsburg store are paid at a higher rate than she is. Id. at 748a-749a.
c. Christine Kwapnoski has “spent most of [her] adult life” working for Sam's Club - a division of Wal-Mart - in Missouri and California. J.A. 997a. She worked in many positions and “received annual raises and merit raises upon occasion,” as well as an eventual promotion to a supervisory position. Id. at 999a, 1004a-1005a. She claims that a male manager “yelled at [her] frequent [ly]” and “scream[ed] at other female employees, but seldom did he scream at men.” Id. at 1000a-1001a. Allegedly, the same manager later “told her to ‘doll up,’ to wear some makeup, and to dress a little better.” Id. at 1003a.
3. The named plaintiffs seek “injunctive and declaratory relief, back pay, and punitive damages, but not traditional ‘compensatory’ damages,” on behalf of every woman employed in every Wal-Mart retail store nationwide during the relevant period. Pet. App. 5a.

With one exception (pharmacy), the class includes every job classification in every department - from part-time entry level hourly workers to salaried managers earning well above $100,000 per year. At the time of certification, the class definition *6 “cover[ed] at least 1.5 million women …, thus dwarfing other employment discrimination cases that have come before.” Id. at 165a.[FN1]
FN1. Of those, about 500,000 were employed as of the date the complaint was filed. Pet. App. 6a n.3. Wal-Mart has employed more than three million women since then.
Plaintiffs moved for class certification, alleging (as they had in their complaint) that Wal-Mart “fosters or facilitates gender stereotyping and discrimination, … and that this discrimination is common to all women who work or have worked in Wal-Mart stores.” Pet. App. 5a; see also J.A. 47a-57a, 73a-76a; D.C. Dkt. 99 at 1-4. They were unable, however, to identify “a specific discriminatory policy promulgated by Wal-Mart.” Pet. App. 59a. In “the absence of” such a policy (ibid.), plaintiffs premised their motion on statistics, sociology, and anecdotes.
The district court accepted plaintiffs' theory and certified the class. The court “recognize[d] that there is a tension inherent in characterizing a system as having both excessive subjectivity at the local level and centralized control.” Pet. App. 192a. It nevertheless concluded that “in-store pay and promotion decisions are largely subjective and made within a substantial range of discretion by store or district level managers, and that this is a co mmon feature which provides a wide enough conduit for gender bias to potentially seep into the system.” Ibid.
On virtually every contested issue, however, the district court declined to make findings on the ground that the “merits” of the case could not be considered at class certification. Pet. App. 166a, 169a-*7 170a, 173a, 192a-193a, 196a-198a, 208a, 211a-212a, 222a, 224a-226a.
a. Statistics. Plaintiffs' theory is premised on alleged ad hoc discrimination by local store managers. However, plaintiffs' statistical expert, Richard Drogin, did not identify any store-level pay differentials. Instead, he aggregated the data on a regional or national basis to justify opining that such data show pay and

promotion disparities between men and women. Pet. App. 200a-201a.

Wal-Mart's expert, Joan Haworth, explained that “more than 90% of the stores had no pay rate differences between men and women that were statistically significant” (J.A. 1344a), and Drogin submitted nothing to rebut these data.

b. Sociology. Plaintiffs' expert, William Bielby, opined that Wal-Mart is “vulnerable to” gender bias, although he “conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F.R.D. at 192 (emphasis added).

c. Anecdotes. Plaintiffs submitted declarations from

112 current and former Wal-Mart employees, only 63

of whom remain members of the class. See J.A.

590a-624a, 632a-653a, 660a-685a, 707a-734a,

743a-749a, 772a-778a, 789a-804a, 813a-816a,

822a-826a, 844a-863a, 874a-880a, 896a-906a,

916a-919a, 934a-957a, 964a-991a, 997a-1006a,

1011a-1015a,

1022a-1047a,

1053a-1087a,

1093a-1096a,

1104a-1111a,

1131a-1135a,

1144a-1164a,

1168a-1173a,

1190a-1194a,

1215a-1221a,

1228a-1241a,

1248a-1253a,

1261a-1278a, 1302a-1305a, 1315a-1321a. These

declarations depict a r elative *8 handful of widely

divergent, and often entirely unique, events.

4. The Ninth Circuit en banc majority recognized the error in the district court's approach to contested issues (Pet. App. 52a n.20), but nevertheless affirmed the certification order in substantial part.

a. The majority agreed that plaintiffs had satisfied Rule 23(a)'s requirements of “commonality,” “typicality,” and “adequacy.”

i. The court concluded that plaintiffs' evidence was sufficient “to raise the common question whether Wal-Mart's female employees nationwide were subjected to a single set of corporate policies … that may have worked to unlawfully discriminate against them in violation of Title VII.” Pet. App. 78a. Furthermore, “[e]vidence of Wal-Mart's subjective decision-making policies suggests a common legal or factual question regarding whether Wal-Mart's policies or practices are discriminatory.” Ibid.

The court thus found class treatment appropriate based not on a showing of any commonly applied policy or practice but rather on the basis of a “common question” whether female employees at Wal-Mart had experienced discrimination. Pet. App. 78a. In reaching this conclusion, the court flatly rejected, as a “hypothetical in clear dicta” (id. at 42a n.15), this Court's holding that a plaintiff seeking class treatment in this context must offer “[s]ignificant proof that an employer operated under a general policy of discrimination” that was implemented “through entirely subjective decisionmaking processes.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 159 n .15 (1982) (emphases added).
ii. The majority declared that the claims were “sufficiently typical,” “[e]ven though individual employees*9 in different stores with different managers may have received different levels of pay or may have been denied promotion or promoted at different rates, because the discrimination they claim to have suffered occurred through alleged common practices - e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping.” Pet. App. 80a.
iii. The majority's adequacy analysis consisted of its observation that “courts need not deny certification of an employment class simply because the class includes both supervisory and non-supervisory employees.” Pet. App. 82a.
b. The Ninth Circuit also found that plaintiffs' claims for billions of dollars in backpay could be certified pursuant to Rule 23(b)(2), which authorizes certification only of claims for injunctive or corresponding declaratory relief. In doing so, the majority rejected the standards previously articulated by other circuits for mandatory certification of monetary claims and announced its own newly formulated standard. Pet. App. 84a-88a. The court also remanded plaintiffs' punitive-damages claims for further consideration. Id. at 99a.
c. Judge Ikuta explained in the principal dissent: “Never before has such a low bar been set for certifying such a gargantuan class. The majority's ruling provides scant limits to the types of classes that can be certified. Put simply, the door is now open to Title VII lawsuits targeting national and international compa-

nies, regardless of size and diversity, based on nothing more than general and conclusory allegations, a handful of anecdotes, and statistical disparities that bear little relation to the alleged discriminatory decisions.” Pet. App. 160a.
*10 d. Chief Judge Kozinski added in a separate dissent that the class members “have little in common but their sex and this lawsuit.” Pet. App. 161a.
SUMMARY OF ARGUMENT
Rule 23's requirements cannot be rewritten to facilitate class certification, nor can substantive rights be abrogated or modified to certify a class. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612-13 (1997). The courts below repeatedly transgressed these important limitations. The certification order cannot stand.
I. The certification order is not consistent with Rule 23(a).
A. The claims asserted on behalf of millions of individuals do not remotely satisfy Rule 23(a)'s commonality, typicality, or adequacy requirements.
1. The commonality requirement ensures that the named plaintiffs' claims are sufficiently like the other class members' that they may be resolved on a collective basis.
a. This Court has recognized the “wide gap” between individualized allegations of discrimination and a company-wide practice that may be challenged in a class action. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157 (1982). To bridge this gap, class plaintiffs must submit “[s]ignificant proof that an employer operated under a general policy of discrimination.” Id. at 159 n.15. But plaintiffs here did not attempt to make such a showing. They could not do so because Wal-Mart's general policies uniformly prohibit discrimination and promote diversity. Pet. App. 195a. Plaintiffs also “failed to identify a specific discriminatory policy at Wal-Mart.” Id. at 55a.
Moreover, plaintiffs did not offer proof that Wal-Mart implemented its policies in a discriminatory fashion common to all female employees. They have never suggested that Wal-Mart established an “entirely subjective decisionmaking process[ ].” Falcon, 457

U.S. at 159 n.15 (emphasis added). The discretion exercised by Wal-Mart's local managers was governed not just by the company's anti-discrimination policy but also by a company-wide framework for pay and promotions. Plaintiffs have never offered significant proof that this framework was discriminatory. This precludes any inference that Wal-Mart was misusing discretionary decisionmaking - which is itself lawful (Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990 (1988)) - to mask or implement a general policy of discrimination that pervaded all of the individual decisions.
The millions of discretionary decisions by tens of thousands of individual managers around the country defy common treatment under Rule 23(a).
b. Plaintiffs tried to bridge the “Falcon gap” by offering statistical, sociological, and anecdotal evidence, all of which serve only to confirm the lack of commonality.
i. Plaintiffs' liability theory turns on decisions made by individual store managers, but their aggregated statistical analysis, which purported to show disparities at the national or regional levels, cannot serve to establish commonality regarding the myriad decisions of local store managers or the impact of those decisions on individual class members. See Watson, 487 U.S. at 992 (plurality). The unrebutted evidence established that more than 90% of the stores had no pay rate differences between men and women that were statistically significant.
ii. Plaintiffs rested much of their case on a sociologist's opinion that Wal-Mart is “vulnerable” to gender bias and stereotypes, and that the centralized control exercised by the company over certain aspects of its retail operations (such as “the temperature and music in each store”) could serve as a “conduit” for discrimination. Pet. App. 190a, 192a, 195a. The same sociologist conceded that he had no idea how often this phenomenon might occur. 222 F.R.D. at 192. His testimony thus defeats, rather than supports, a finding of commonality.
iii. The 63 class-member declarations submitted by plaintiffs also defeat commonality. While they purport to portray instances of unequal treatment, the unique facts and circumstances of even this small sample vary dramatically. Pet. App. 127a (Ikuta, J., dissenting).

2. The typicality requirement “limit[s] the class claims to those fairly encompassed by the named plaintiff's claims.” Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 330 (1980). But the declarations of the three remaining class representatives show that their claims - and the defenses to those claims - are atypical of those that might be asserted by millions of absent women. Proving (or disproving) any such claim would not make it any more (or less) likely that others' claims are cognizable (or remediable).
3. The adequacy requirement serves to prevent conflicts of interest among the class members. Amchem, 521 U.S. at 618, 625. The class here, however, is replete with such conflicts. For example, the class includes both managers and hourly employees plaintiffs thus accuse other class members of discriminating against them. A clearer conflict of interest is difficult to imagine, and there are many more.
B. Solely in an effort to satisfy Rule 23(a), the lower courts elected to alter the rules - relieving plaintiffs of the burden of proving elements of their case, and precluding Wal-Mart from presenting otherwise available defenses. The Rules Enabling Act, which mandates that procedural rules may not alter substantive rights, forbids this. 28 U.S.C. § 2072(b).
1. The courts below erred in relieving plaintiffs of their burden of proving key substantive elements of their claims, including (a) an unlawful employment practice, and (b) discriminatory intent.
a. Plaintiffs argue that individual store managers exercised subjective discretion in a manner that uniformly disadvantaged female employees. That is a necessary component of both their disparate-impact and disparate-treatment claims, but it would require store-by-store proof that defeats commonality and typicality.
b. Equally problematic for plaintiffs - yet entirely unaddressed by the lower courts - is the intent element of their disparate-treatment claim. Intent is not subject to classwide proof where, as here, the challenged employment decisions were massively decentralized.
2. Wal-Mart's statutory defenses also preclude commonality and typicality. Such defenses are normally

resolved at the second stage of an aggregated employment discrimination proceeding, where the employer has the right to “demonstrate that the individual … was denied an employment opportunity for lawful reasons.” Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 362 (1977). The district court, however, found that holding such individualized hearings would be “impractical,” “not feasible,” and “inconsistent with the fundamental character of the class action proceeding.” Pet. App. 245a, 251a. Rather than refusing to certify the class, the court eliminated Wal-Mart's right to prove its defenses - once again elevating procedure over substance and depriving Wal-Mart of due process.
II. Nor is the certification order consistent with Rule 23(b)(2).
A. Rule 23(b)(2)'s text authorizes certification of claims for injunctive or corresponding declaratory relief, and is silent as to monetary relief. Monetary claims must proceed under Rule 23(b)(3), which provides additional protections for defendants, absent class members, and the judicial system.
Rule 23(b)'s mandatory provisions must conform to their historical antecedents. Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999). Intentional discrimination claims asserted on behalf of millions of disparate individuals seeking monetary relief could not be more different from the injunctive and declaratory relief challenges to de jure segregation on which Rule 23(b)(2) was based. And this difference is of constitutional dimension: Rule 23(b)(2) does not require notice to or permit opt-outs by absent class members, which due process requires where individual monetary relief is at stake. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-12 (1985).
B. Some circuits have allowed certain monetary claims to proceed under Rule 23(b)(2), unless the relief sought “relates … predominantly to money damages.” Advisory Committee Notes, 39 F.R.D. 69, 102 (1966). The substantial monetary awards sought by plaintiffs on behalf of millions of individuals here “predominate” over their claims for injunctive relief under the “incidental damages” standard applied in most circuits, and indeed any other standard.
*15 ARGUMENT

The “class-action device … [is] an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979). Because of the dangers inherent in classwide adjudication, Rule 23 imposes prerequisites to class certification designed to ensure that any ensuing trial and judgment will be consistent with the rights of all parties, including the absent class members. Taylor v. Sturgell, 553 U.S. 880, 900-01 (2008); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 629 (1997).
This Court adopted Rule 23 pursuant to the Rules Enabling Act, which mandates that procedural rules may not “abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). This Court has emphasized that Rule 23 “must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view.” Amchem, 521 U.S. at 629; see Ortiz v. Fibreboard Corp., 527 U.S. 815, 845 (1999). Moreover, class actions certified under Rule 23 must also comply with the Due Process Clause (Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (per curiam)), and any uncertainties in the Rule's application should be resolved to avoid constitutional concerns. Ortiz, 527 U.S. at 845.
The district court's certification order, as modified by the Ninth Circuit, is not consistent with Rule 23. The wildly divergent claims asserted by the three named plaintiffs on behalf of millions of women cannot satisfy Rule 23(a)'s requirements of commonality, typicality, or adequacy without modifying the substantive elements of plaintiffs' claims and Wal-Mart's defenses. Moreover, mandatory certification *16 under Rule 23(b)(2) does not encompass plaintiffs' request for billions of dollars in backpay and (potentially) punitive damages.
I. The Certification Order Is Not Consistent With Rule 23(a)
A “Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.” Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 161 (1982). These prerequisites include “questions of law or fact common to the class,” “claims or defenses of the representative parties [that] are typical of the claims or defenses of the class,” and “representative parties [who] fairly and

adequately protect the interests of the class.” Fed. R. Civ. P. 23(a); Amchem, 521 U.S. at 613.
Plaintiffs here bring two types of Title VII claims: disparate impact and disparate treatment. A “plaintiff establishes a p rima facie disparate-impact claim by showing that the employer uses a particular employment practice that causes a d isparate impact on one of the prohibited bases.” Lewis v. City of Chicago, 130 S. Ct. 2191, 2197 (2010) (internal quotation marks omitted) (emphasis altered); accord 42 U.S.C. § 2000e-2; Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 986 (1988) (a plaintiff's burden includes showing statistical disparities and a specific employment practice). To maintain a disparate-treatment claim, the plaintiff is also “required to prove that the defendant had a discriminatory intent or motive.” Ibid. If the plaintiff succeeds on either type of claim, the court may award injunctive relief, backpay, “or any other equitable relief as the court deems appropriate.” 42 U.S.C. § 200 0e-5(g)(1). *17 Where the plaintiff proves that she is the victim of intentional discrimination, and thus has made out a d isparate-treatment claim, the plaintiff may also be entitled to compensatory damages (including emotional distress). Id. § 1981a(a)(1). Punitive damages may be awarded only in disparate-treatment cases, if the plaintiff proves that the employer acted “with malice or with reckless indifference to the federally protected rights of an aggrieved individual.” Id. § 1981a(b)(1).
Title VII codifies certain defenses. If the employer proves that an adverse employment action concerning an individual was “for any reason other than discrimination,” the court shall not order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay.” 42 U.S.C. § 2000e -5(g)(2)(A). Even if the employee proves that the adverse employment action was motivated in part by discriminatory intent (see id. § 2000e-2(m)), the court cannot award backpay or damages if the employer proves that it “would have taken the same action in the absence of the impermissible motivating factor.” Id. § 2000e-5(g)(2)(B)(ii); Costa v. Desert Palace, Inc., 299 F.3d 838, 848 (9th Cir. 2002) (en banc), aff'd, 539 U.S. 90 (2003).
The propriety of class certification must be reviewed in light of the substantive elements of these claims and defenses, which would have to be litigated and decided in an eventual trial on the merits. Amchem, 521

U.S. at 621, 629. Doing so makes clear that the courts below committed multiple and manifest*18 legal errors in allowing the case to proceed as a class action.[FN2]
FN2. A certification order is reviewed for abuse of discretion, but a district court abuses its discretion by misapplying the law. Koon v. United States, 518 U.S. 81, 100 (1996). Wal-Mart's arguments in this Court turn on the legal errors committed by the courts below, and therefore this Court's review is de novo. Moreover, the district court's refusal to resolve contested issues means that its “findings” are entitled to no deference. See In re IPO Sec. Litig., 471 F.3d 24, 40-41 (2d Cir. 2006).
A. The Named Plaintiffs' Interests Are Insufficiently Interrelated With The Absent Class Members' Inter-
ests
“The commonality and typicality requirements of Rule 23(a) tend to merge,” and “[b]oth serve as guideposts for determining whether under the particular circumstances maintenance of a cl ass action is economical and whether the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Falcon, 457 U.S. at 157 n.13. In turn, the “adequacy inquiry,” which “serves to uncover conflicts of interest” among the class members, “tends to merge” with the commonality and typicality requirements. Amchem, 521 U.S. at 625, 626 n.20 (internal quotation marks omitted). We address each of them in turn.
1. Commonality
A class may not be certified unless “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). This requirement ensures that the class representatives possess the same interests, and have suffered the same alleged injuries, as the absent class members and are thus qualified to bring *19 claims on behalf of the entire group. E. Tex. Motor Freight Sys. Inc. v. Rodriguez, 431 U.S. 395, 403 (1977).
The plaintiff in Falcon challenged “subjective” promotion practices (457 U.S. at 151 n.4), and this Court held that a named plaintiff's experience of discrimi-

nation does not permit the district court simply to infer that “discriminatory treatment is typical of [the employer's employment] practices.” Id. at 158; see Rodriguez, 431 U.S. at 403-04. Indeed, “[i]f one allegation of specific discriminatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential company-wide class action.” Falcon, 457 U.S. at 159.
Rather, in asserting a co mpany-wide class action based on discrimination, the plaintiff must bridge the “wide gap” between (1) plaintiff's own claim of discrimination, and (2) the existence of a class of persons who have suffered the same injury as the plaintiff as a result of a co mpany-wide discriminatory policy. Falcon, 457 U.S. at 157. Plaintiffs here failed to do so.
a. Plaintiffs' Theory Fails To Bridge The Falcon Gap
This Court has held that a plaintiff can potentially bridge the gap between individual and representative claims, and secure authorization to proceed on behalf of absent persons, by adducing “[s]ignificant proof that an employer operated under a general policy of discrimination” that was implemented through “entirely subjective decisionmaking processes” in a manner that affected all class members. Falcon, 457 U.S. at 159 n.15.
1. Plaintiffs here made no pretense of offering “significant proof” that Wal-Mart's “general policy” *20 was discriminatory, as to either pay or promotion. To the contrary, it was undisputed that Wal-Mart operates under a g eneral policy of anti-discrimination. The policies actually adopted and implemented by Wal-Mart forbid discrimination and affirmatively encourage diversity. Pet. App. 195a. “Title VII prohibits employment practices, not an abstract policy of discrimination.” Falcon, 457 U.S. at 159 n.15; see also Watson, 487 U.S. at 994 (plurality). Yet plaintiffs could find no such practices. Indeed, the court below acknowledged “the absence of a specific discriminatory policy promulgated by Wal-Mart.” Pet. App. 59a (emphasis added). That should have ended the inquiry.
2. Nor did plaintiffs offer proof that Wal-Mart implemented its lawful policies in a discriminatory fashion common to every single female employee.
They do not, and cannot, contend that Wal-Mart maintained an “entirely subjective decisionmaking

process[ ]” (Falcon, 457 U.S. at 159 n.15 (emphasis added)), because the record is undisputed that in addition to its express anti-discrimination policy, Wal-Mart set salary ranges for its employees and established standards for its local managers to apply when making both pay and promotion decisions. J.A. 1468a-1469a, 1498a-1511a, 1609a, 1616a; D.C. Dkt. 270-508; Pet. App. 176a-177a.
Plaintiffs' expert explained that “[w]ritten guidelines for promotion are not absent in the Wal-Mart Personnel System,” and that “[c]ompany guidelines specify minimum criteria based on discipline, tenure, and performance evaluations.” J.A. 550a-551a; see also Pet. App. 203a (“the subjective decision-making in compensation and promotions takes place within parameters and guidelines that are highly uniform”). *21 The district court found only that pay and promotion decisions are “largely subjective” (that is, discretionary), and that the “company maintains centralized corporate policies that provide some constraint on the degree of managerial discretion.” Pet. App. 192a (emphasis added).
Plaintiffs have never offered significant proof that this framework was discriminatory. Courts have recognized that similar challenges do not satisfy the commonality requirement because the existence of non-subjective criteria cuts against the inference that there was “a common policy of discrimination that pervaded all of the … challenged … decisions.” Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir. 1994); see also, e.g., Denney v. City of Albany, 247 F.3d 1172, 1186 (11th Cir. 2001).
Moreover, the mere fact that an employer delegates discretion to local managers to make pay or promotion decisions is not unlawful. Watson, 487 U.S. at 990 (“an employer's policy of leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct”). This Court has recognized that “employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.” Engquist v. Or. Dep't of Agric., 553 U.S. 591, 604 (2008); see also Pet. App. 77a (“Wal-Mart is correct that discretionary decision making by itself is insufficient to meet Plaintiffs' burden”); id. at 184a (“some level of subjectivity is inherent in, and in fact a useful part of, personnel decisions”).

Millions of discretionary decisions by tens of thousands of individual managers constitute the antithesis of a common policy that affects everyone in *22 the same manner. See, e.g., Cooper v. Southern Co., 390 F.3d 695, 715-16 (11th Cir. 2004); Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 279 (4th Cir. 1980); Richard A. Epstein, Class Actions: Aggregation, Amplification, and Distortion, 2003 U. Chi. Legal F. 475, 508-09 (delegation of discretion to local managers is more logically viewed as a policy that permits many different practices at the local level).
Accordingly, plaintiffs failed to present “significant proof” that Wal-Mart operated under a “general policy” of discrimination, as Falcon requires. On the contrary, it is undisputed that Wal-Mart's pay and promotion system includes general policies that prohibit discrimination, as well as objective pay ranges and promotion criteria that impose constraints on the exercise of discretion by individual managers. This system will not support a finding of commonality, on a company-wide basis, for purposes of Rule 23(a).
3. In fact, to secure class certification, plaintiffs have advanced a theory of employment discrimination that simply is not actionable under Title VII.
They have hypothesized a “fundamentally new account of discrimination” that seeks to hold Wal-Mart liable for “broader labor market” characteristics. Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 156-60 (2009). This novel concept, which commonly is known as “structural discrimination,” challenges widely accepted corporate structures as creating a “conduit for gender bias to potentially seep into the system.” Pet. App. 192a. This theory would remake Title VII to allow claims challenging and seeking to redesign corporate structures to address societal phenomena for which employers are not responsible *23 (Nagareda, supra, at 153-60), an approach this Court has strongly rejected. See Furnco Constr. Corp. v. Waters, 438 U.S. 567, 578 (1978) (“Courts are generally less competent than employers to restructure business practices, and unless mandated to do s o by Congress they should not attempt it”); see also Price Waterhouse v. Hopkins, 490 U.S. 228, 242 ( 1989) (plurality) (recognizing “Congress' unwillingness to require employers to change the very nature of their operations in response to the statute”). Courts and

commentators agree that the “structural discrimination” theory does not “stand[] as current law.” Nagareda, supra, at 157 & n.234 (citing sources). Plaintiffs' bid for affirmance of the class certification order thus rests on a fundamental - and quite radical - remaking of Title VII law.
b. Plaintiffs' Evidence Fails To Bridge The Falcon Gap
Just as plaintiffs' theory of discrimination does not suffice, the evidence they offered also fails to establish commonality. As shown below, the evidence, at most, indicates that Wal-Mart's pay and promotion system could possibly result in individual disparities - not that it was designed to do so, was intended to do so, or would inevitably do so with respect to every single female employee around the country. Isolated instances of discrimination are not sufficient to satisfy the commonality requirement in Title VII cases. Falcon, 457 U.S. at 158.
Plaintiffs point to three categories of evidence - statistics, sociology, and anecdotes - but never bridge the wide gap between their own individual assertions and the classwide claims. “Like the proverbial shell game, … plaintiffs' circular presentation cannot conceal the fact that they have failed to offer any significant proof of a company-wide policy of discrimination,*24 no matter which shell is lifted.” Pet. App. 138a (Ikuta, J., dissenting).
1. Statistics. Plaintiffs' statistical expert, Richard Drogin, aggregated the data at the national or regional level to conclude that women were under-represented in management and paid less than men in comparable positions. J.A. 476a, 493a-516a. Plaintiffs' theory of liability, however, rests on decisions made by individual managers at the store level; as a matter of law, disparities at the regional and national level are not probative of store-level discrimination. This is a failure of proof at the most basic level: Plaintiffs challenge decisions by individual store managers, but failed to adduce any statistical evidence of discrimination (or even disparities) at the store level. This is critically important because courts have uniformly recognized in multi-facility employment cases that discrimination must be shown in each facility or other decisionmaking unit. Morgan v. UPS, 380 F.3d 459, 464 (8th Cir. 2004); see also Garcia v. Johanns, 444 F.3d 625, 632 (D.C. Cir. 2006); Cooper, 390 F.3d at

715.
In response to plaintiffs' hypothesis of discrimination by individual store managers, Wal-Mart's expert Joan Haworth presented a store-by-store statistical analysis, which established that in more than 90% of the stores there were no statistically significant pay disparities between men and women. See J.A. 1468a-1515a; Pet. App. 202a-203a n.25. This showing was not rebutted by plaintiffs, who offered no store-by-store analysis of their own, and confirms the lack of commonality.
The district court rejected Wal-Mart's objections that Drogin's statistics were untethered to plaintiffs' store-level theory of discrimination on the ground *25 that it would “engage the Court in a merits evaluation of the expert opinions.” Pet. App. 197a. In so doing, the court mistakenly concluded that Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), barred it from making determinations that overlapped with the “merits” at the certification stage, including the appropriate level of aggregation of statistical analyses. Pet. App. 166a, 208a. Even plaintiffs do n ot defend this approach, recognizing that “the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (internal quotation marks omitted); see also Falcon, 457 U.S. at 161.
The Ninth Circuit majority sidestepped this critical issue, erroneously opining that “[t]he disagreement” between Drogin and Haworth regarding the appropriate level of aggregation “is the common question.” Pet. App. 71a. But, regardless of the strength of Wal-Mart's statistics, it is plaintiffs' burden to produce “significant proof” of a company-wide discriminatory policy; plaintiffs failed to meet that burden by failing to offer any proof of gender-based disparities at the store level.
In any event, as this Court held in Falcon, “actual, not presumed, conformance with Rule 23(a) remains … indispensable.” 457 U.S. at 160. Indeed, plaintiffs concede that “district courts are required to conduct a ‘rigorous analysis' of compliance with Rule 23, even when it overlaps with the merits.” Pet. Opp. 24. And they take no issue with the “consensus among the circuits” (ibid.), holding that courts are not only authorized but obligated to resolve such disputes at the certification stage relating to Rule 23 factors. See, e.g.,

*26In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 323-24 (3d Cir. 2008); In re IPO Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006).
With respect to commonality, the appropriate level of aggregation is not an evidentiary issue, but a legal one. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650-55 (1989), superseded on other grounds by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, § 2, 105 Stat. 1071, 1071. The nationally or regionally aggregated statistics presented by plaintiffs do not show, one way or the other, whether their theory of discrimination - which turns on decisions made by individual store managers - can be proved on a classwide basis. Cf. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 388 (2008).
Plaintiffs never identified a corporate policy or practice to which the aggregated disparities Drogin identified could be attributed. Nothing in his analysis purports to link any alleged disparities in pay or promotion to subjective decisionmaking or any other aspect of Wal-Mart's pay and promotion system. Disparities in the abstract are not actionable under Title VII. Lewis, 130 S. Ct. at 2197. Plaintiffs thus failed to establish that a crucial element of their prima facie case could be proved on a classwide basis. See ibid.; Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618, 624 (2007), superseded on other grounds by statute, Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, § 3, 123 Stat. 5, 5-6.
As Justice O'Connor observed in Watson, “[i]t is completely 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.” 487 U.S. at 992 (plurality). “It would be equally unrealistic to suppose that employers can eliminate, or discover and explain, the myriad*27 of innocent causes that may lead to statistical imbalances in the composition of their work forces.” Ibid.; see also Pet. App. 193a (noting that plaintiffs' sociology expert agreed that “there are many reasons why men and women can have different career trajectories, some of which are not generally considered discriminatory, such as differing job-related skill requirements”); id. at 193a n.18.
Plaintiffs' suggestion that liability can be premised on aggregated disparities, if accepted, would require employers to treat people differently despite the ab-

sence of any previous departures from legal requirements. That is contrary to Congress's express instruction in Title VII (42 U.S.C. § 200 0e-2(j)), and this Court therefore already has rejected such an approach to Title VII. Ricci v. DeStefano, 129 S. Ct. 2658, 2674-75 (2009); see also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 729-33 (2007) (plurality); Watson, 487 U.S. at 992 (plurality).
2. Sociology. Plaintiffs rely heavily on the notion, propounded by their sociologist William Bielby, that Wal-Mart and other large organizations are “ ‘vulnerable’ to gender bias.” Pet. App. 195a. Bielby's testimony, however, defeats rather than supports a finding of commonality.
a. Bielby opined that Wal-Mart has a “strong corporate culture.” Pet. App. 54a. The district court elaborated, explaining that this is reflected by such things as the way “the Home Office controls the temperature and music in each store throughout the country.” Id. at 190a. And “employees at Wal-Mart stores attend a daily meeting held at shift changes, where managers discuss the company culture and employees do the Wal-Mart cheer.” Id. at 188a-*28 189a. Bielby observed that Wal-Mart “employees achieve a common understanding of the company's way of conducting business” (J.A. 535a), but he could not say that this “way” was discriminatory or explain how this “common understanding” actually causes discrimination. Pet. App. 55a; see Price Waterhouse, 490 U.S. at 294 & n.5 (Kennedy, J., dissenting) (explaining that “Title VII creates no independent cause of action for sex stereotyping” and questioning validity of sociologist expert testimony regarding such stereotyping).
As the Ninth Circuit acknowledged, Bielby merely “interpret[ed] and explain [ed] the facts that suggest that Wal-Mart has and promotes a strong corporate culture - a culture that may include gender stereotyping.” Pet. App. 54a (emphasis added). Bielby did not opine, however, that Wal-Mart's culture does include stereotyping, and the district court recognized that Bielby did not purport to opine on how often gender stereotyping actually occurred, let alone claim that it was common to all class members. 222 F.R.D. at 192; see also Pet. App. 195a (“Defendant rightly points out that Dr. Bielby cannot definitively state how regularly stereotypes play a meaningful role in employment decisions at Wal-Mart”).

The district court found that “Bielby's opinions have a built-in degree of conjecture.” Pet. App. 195a. Bielby even “conceded that he could not calculate whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F.R.D. at 192.
As the district court described it, Bielby's testimony suggests only that Wal-Mart's delegation of “a substantial range of discretion” to local managers “provides a wide enough conduit for gender bias to potentially seep into the system.” Pet. App. 192a *29 (emphasis added). The most that Bielby could do was critique Wal-Mart's equal employment policies and pay and promotion systems as potentially “vulnerable” to discrimination. J.A. 525a. But alleged “ ‘[v]ulnerability’ to sex discrimination is not sex discrimination.” 509 F.3d at 1194 (Kleinfeld, J., dissenting); see also Price Waterhouse, 490 U.S. at 294 (Kennedy, J., dissenting) (While “[e]vidence of use by decision-makers of sex stereotypes is … relevant to the question of discriminatory intent,” “[t]he ultimate question … is whether discrimination caused the plaintiff's harm”); Nagareda, supra, at 159-60.
Bielby's hypothesis that Wal-Mart may be “vulnerable” to gender stereotypes because it (like other organizations, including government agencies) has a “strong corporate culture” does not identify any discriminatory practices or procedures actionable under Title VII. By Bielby's lights, one would have to examine each individual pay or promotion decision - and there are millions of them - to determine whether it was actually infected with bias. As a r esult, Bielby's testimony affirmatively does not support, but affirmatively defeats, any finding of commonality in this case.
b. Because Bielby conceded that he could not conclude whether sex-based animus was responsible for all of the employment decisions at Wal-Mart or none of them, it is unclear what the probative value of his testimony, with respect to the Rule 23 prerequisites, could possibly be. As the authors of the seminal article on “social framework” analysis upon which Bielby purported to rely (J.A. 524a n.1) have explained, Bielby's “research into conditions and behavior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination.” John Monahan et al., Essay,
*30Contex tual Evidence of Gender Discrimination:

The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 ( 2008). Moreover, “Dr. Bielby's social framework analysis fails because it lacks a reliable, scientific basis for linking general research to the corporate setting.” Id. at 1745 n.83. Thus, his testimony “explicitly link[ing] general research findings on gender discrimination to specific factual conclusions about Wal-Mart in particular, exceeded the limitations on expert testimony established by the Federal Rules of Evidence and by … ‘social framework’ evidence.” Id. at 1719.
The district court rejected Wal-Mart's motion to strike Bielby's opinion as unreliable and inadmissible. D.C. Dkt. 263 at 1-4; see Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (where “opinion evidence … is connected to existing data only by the ipse dixit of the expert,” a “court may conclude that there is simply too great an analytical gap between the data and the opinion proffered”). In affirming this ruling, the Ninth Circuit held that Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), does not have “exactly the same application at the class certification stage as it d oes to expert testimony … at trial.” Pet. App. 57a n.22.
But Federal Rule of Evidence 702, which governs the reliability of expert testimony and implements Daubert, ensures that expert testimony is relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). It is not limited to trial and is particularly important at the class certification stage, where the district court must “assess all of the relevant evidence admitted … and determine whether each Rule 23 requirement has been met, just as the judge would resolve a dispute about any other threshold prerequisite for continuing a lawsuit.”*31 IPO, 471 F.3d at 42. Expert evidence introduced to “establish a component of a Rule 23 requirement” therefore must be reliable. Ibid. Bielby's is not.
3. Anecdotes. Plaintiffs also submitted declarations from 63 r emaining class members to support their theory that individual store managers wielded their discretion to make pay and promotion decisions in an intentionally discriminatory manner. These anecdotes included just 126 of Wal-Mart's more than 3,400 stores; plaintiffs thus presented no evidence of even a single act of discrimination in the vast majority of stores, including entire States, regions, and districts. Cf. Mooney v. Aramco Servs. Co., 54 F.3d 1207, 1221

(5th Cir. 1995) (holding that ten instances of discrimination were insufficient to support a class of just 154 employees, because “[t]estimony of anecdotal witnesses with different supervisors, working in different parts of the company was simply too attenuated”).

In Teamsters, the government proved 40 s pecific instances of discrimination out of a class of about 400 employees - a ratio of 1:10. Int'l Bhd. of Teamsters v. United States 431 U.S. 324, 338-39 (1977). Even if all of the declarations submitted by class members in this case recited actionable claims of discrimination (which they do not), plaintiffs fell far short of that kind of showing.

Plaintiffs' relative handful of declarations is, at most, evidence of nothing more than “isolated or sporadic” instances of (alleged) misconduct. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 876 (1984). Here, the “affiants claim discrimination in different forms, at the hands of different people, in different stores, in different parts of the country, at *32 different times, and under a constellation of facts unique to each individual,” thereby undermining any claim of a common, company-wide policy. Pet. App. 127a (Ikuta, J., dissenting). Indeed, as explained in the next section, the declarations of both the named plaintiffs and the other class members demonstrate the varied and individualized nature of their claims.

Wal-Mart also submitted declarations from female

employees that further refute the notion of any com-

pany-wide policy of discrimination. One such em-

ployee testified, “[w]hen I expressed interest in being

promoted, various Store Managers and District Man-

agers mentored me and assisted me in achieving my

goals.” J.A. 1609a. Another explained, “[i]n my career

at Wal-Mart, I have never felt that I was denied an

opportunity because I am a woman.” Id. at 1635a. And

there are many more. See id. at 1598a-1599a,

1615a-1616a,

1619a-1620a,

1625a-1628a,

1638a-1644a, 1650a, 1653a-1654a.

Far from establishing commonality, the declarations submitted by putative class members refute it.

2. Typicality

The named plaintiffs' claims and defenses are not “typical of the claims or defenses of the class.” Fed. R.

Civ. P. 23(a)(3). The typicality requirement “limit[s] the class claims to those fairly encompassed by the named plaintiff's claims.” Gen. Tel. Co. of the Nw. v. EEOC, 446 U.S. 318, 330 (1980). But the widely divergent claims of each named plaintiff “are not even typical with respect to each other, let alone with respect to the class.” 509 F.3d at 1195 (Kleinfeld, J., dissenting).
For example, Ms. Dukes has alleged both race and sex discrimination. J.A. 76a-77a; C.A. App. 29-32. Her claim turns almost entirely on her allegations*33 of retaliation for invoking the company's internal grievance procedures. J.A. 745a-746a. An element of such a claim is the employer's knowledge of an underlying discrimination charge or other protected activity (42 U.S.C. § 2000e-3(a)), which is incapable of classwide proof. Indeed, the district court correctly excluded retaliation claims from this case. Pet. App. 166a-167a n.4. Ms. Dukes's experience is decidedly not “typical.”
Similarly, if Ms. Kwapnoski could prove that her store manager was unequally abusive, and that his “yell[ing]” violated Title VII (J.A. 1000a-1001a), such proof would not establish that any other woman in any other store was the victim of intentional discrimination. The same is true with respect to Ms. Arana's contention that her store manager discouraged her from applying for management training. Id. at 614a-616a.
This stark atypicality is apparent from the other declarations submitted by plaintiffs. Many of them do not even arguably allege employment discrimination. See, e.g., J.A. 676a-678a, 729a-734a, 822a-826a, 1059a-1063a, 1081a-1087a; see also 509 F.3d at 1195-96 (Kleinfeld, J., dissenting). Indeed, it is simply inconceivable that every single female employee suffered intentional discrimination, which is what plaintiffs' theory posits. While some of the class members still work for Wal-Mart, many more do not. See, e.g., J.A. 620a-623a, 727a, 859a. Some claim retaliation, while others merely claim unequal treatment. See, e.g., id. at 676a-678a, 707a-715a, 822a-826a. “Some thrived while others did poorly.” Pet App. 161a (Kozinski, C.J., dissenting); see also J.A. 640a-644a, 947a-951a, 1030a-1034a, 1131a-1135a, 1315a-1321a.
*34 Even if the named plaintiffs could prove their individual allegations of discrimination, such proof

would not establish liability for any absent class member. “[A] class plaintiff's attempt to prove the existence of a co mpanywide policy, or even a co nsistent practice within a given department, may fail even though discrimination against one or two individuals has been proved.” Cooper, 467 U.S. at 879.
In addition, Wal-Mart's defenses to plaintiffs' claims are not identical as to all female employees. Ms. Dukes, for example, would be subject to unique defenses based on her long and uncontroverted history of disciplinary violations: Wal-Mart cannot be held liable for employment actions taken “for any reason other than discrimination,” and in all events cannot be liable for backpay if it would have taken the same action regardless of motivation. 42 U.S.C. § 2000e-5(g)(2). Yet Ms. Dukes's repeated disciplinary issues are hardly “typical” of other employees. And proving (or failing to prove) an employee-specific defense may not make it any more or less likely that the next employee is subject to the same defense. See Cooper, 390 F.3d at 719.
3. Adequacy
Plaintiffs have also failed to demonstrate that the named plaintiffs “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent” and “tends to merge” with the commonality and typicality requirements. Amchem, 521 U.S. at 625, 626 n.20 (internal quotation marks omitted); see Gen. Tel. Co. of the Nw., 446 U.S. at 331 (“the adequate-representation requirement is typically construed to foreclose the class action where there is a conflict of *35 interest between the named plaintiff and the members of the putative class”). The class here is rife with such conflicts.
For example, the named plaintiffs waived any claim for compensatory damages, forfeiting the rights of individual class members to recover damages authorized by Congress solely in order to facilitate class treatment. It therefore is not true that, as plaintiffs have suggested, “[t]he members of the class are united in seeking the maximum possible recovery.” Amchem, 521 U.S. at 610 (internal quotation marks omitted).
Moreover, the class includes both the alleged victims

of discrimination (hourly employees) and the alleged perpetrators of that same discrimination (salaried managers). Plaintiffs accuse other class members of intentionally discriminating against them. Female manager class members will be called to testify against other class members regarding their decisions as managers, and thus will be cross-examined by class counsel. A clearer conflict is difficult to imagine, since the interests of each group in establishing liability (and maximizing recovery) are diametrically opposed. Cf. Gen. Tel. Co. of the Nw., 446 U.S. at 331; Hansberry v. Lee, 311 U.S. 32, 44-46 (1940).
And the list goes on. The class here includes both former and present employees. Those who still work at Wal-Mart may have an interest in an injunction, but injunctive or corresponding declaratory relief cannot benefit those women who no longer work at the company and who therefore are interested only in individual monetary relief. 509 F.3d at 1196 (Kleinfeld, J., dissenting); see also infra Part II.B.1. Some class members (including the named plaintiffs) *36 have poor performance records and are subject to unique defenses to liability. See 42 U.S.C. § 2000e-5(g)(2)(B)(ii). These individuals may have an interest in settlement, in part to avoid public recitation of their faults, while those who have strong performance records could have an interest in taking the case to trial. See 509 F.3d at 1196 (Kleinfeld, J., dissenting).
Another intractable conflict arises from the undisputed fact that “nonvictims might also benefit from the relief.” Pet. App. 110a n.57 (internal quotation marks omitted). The district court acknowledged that allowing the class claims to proceed would “generat[e] a windfall for some employees … and undercompensat[e]” others. Id. at 254a (internal quotation marks omitted). But Title VII relief is limited to the “actual victims” of illegal discrimination. Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 579 (1984). Allowing nonvictims to share in any recovery creates an impermissible conflict with those who may have valid claims. Far from constituting “rough justice” (Pet. App. 254a), the decisions below would work an injustice. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985) (the “Due Process Clause … requires that the named plaintiff at all times adequately represent the interests of the absent class members”).

Where subsets of plaintiffs have different interests in the litigation, “the interests of those within the single class are not aligned.” Amchem, 521 U.S. at 626 (adequacy not satisfied when conflicts exist regarding nature and timing of relief); see also Rodriguez, 431 U.S. at 405. Inadequate representation violates the Due Process Clause as well as Rule 23. Hansberry, 311 U.S. at 44-45. This Court therefore has warned district courts to exercise “caution when *37 individual stakes are high and disparities among class members great.” Amchem, 521 U.S. at 625. Here, the stakes could not be higher, yet the “certification in this case does not follow the counsel of caution.” Ibid.
In short, if plaintiffs were adequate representatives, they would not be forced to forfeit the rights of absent class members to persuade the courts to allow them to represent the class, and their desire to be class representatives would not conflict with their duty to act in the best interests of the absent class members. See Amchem, 521 U.S. at 618; Broussard v. Meineke Disc. Muffler Shops, Inc., 155 F.3d 331, 337-39 (4th Cir. 1998). These conflicts are heightened because certification under Rule 23(b)(2) does not permit absent class members to opt out of the litigation. Absent class members are powerless to extricate themselves from the class even though their interests squarely conflict with those of the named plaintiffs purporting to represent them.
Plaintiffs sought to lump together in one lawsuit every female Wal-Mart employee without regard to the staggering number of differences - in jobs, performance, experience, advancement, location, and a host of other factors - that exist within that divergent group of individuals. See Pet. App. 161a (Kozinski, C.J., dissenting). This Court has condemned the practice of certifying “across-the-board” employment class actions. Falcon, 457 U.S. at 157. The decision below cannot be reconciled with that directive or with the Court's admonition against “judicial inventiveness” in class-action procedure. Amchem, 521 U.S. at 620.
As this case well illustrates, “the rulemakers' prescriptions for class actions may be endangered by *38 those who embrace Rule 23 too enthusiastically just as they are by those who approach the Rule with distaste.” Amchem, 521 U.S. at 629 (internal quotation marks and alterations omitted).[FN3]
FN3. This is not to suggest that Title VII

cases cannot proceed as class actions. Rather, where (as here) an employment discrimination claim is premised on discretionary decisionmaking, the class at minimum must bear some relation to the decisionmaking unit (store, department, etc.). See Morgan, 380 F.3d at 464; 42 U.S.C. § 2000e-5(f)(3).
B. Procedural Defects Cannot Be Remedied By Altering The Substantive Law
A court cannot certify a class without finding that the class claims and defenses, as certified, can be tried to judgment in a manner that protects the rights of all parties and the judicial system. Fed. R. Civ. P. 23(c)(2); see Amchem, 521 U.S. at 621, 629. The Rule 23(a) factors are designed to ensure that only those cases that are sufficiently cohesive to permit such a trial will be certified. Id. at 623 (it is “class cohesion that legitimatizes representative action in the first place”). A case that does not meet one or more of the Rule 23(a) prerequisites, in contrast, likely could not be tried consistently with due process and therefore may not be certified as a class action. Cf. Taylor, 553 U.S. at 901.
But because this case, properly analyzed, does not meet the prerequisites imposed by Rule 23(a), a trial on the merits would be completely unmanageable and unfair. The courts below recognized as much; but rather than denying certification, they elected to relieve plaintiffs of the burden of proving elements of their case and to preclude Wal-Mart from proving *39 elements of its defenses. This Court has repeatedly instructed the lower courts that the Rules Enabling Act prohibits elevating procedural rules over substantive rights in the class-action context. Ortiz, 527 U.S. at 845 (“no reading of [Rule 23] can ignore the Act's mandate”); Amchem, 521 U.S. at 612-13. The decisions below, however, omit any substantive discussion of this crucial statute.
1. Plaintiffs' Burden
Plaintiffs' disparate-impact claim requires them to prove “a particular employment practice that causes a disparate impact” on a prohibited basis. 42 U.S.C. § 2000e-2(k)(1)(A)(i); Lewis, 130 S. Ct. at 2197. Their disparate-treatment claim “comprises two elements: [a] an employment practice, and [b] discriminatory intent.” Ledbetter, 550 U.S. at 631. Plaintiffs have failed

to demonstrate how they could establish either, much less both, on a classwide basis.
a. No Unlawful Employment Practice. As previously discussed, the Ninth Circuit acknowledged “the absence of a s pecific discriminatory practice promulgated by Wal-Mart.” Pet. App. 59a (emphases added). In the absence of such a practice, plaintiffs are forced to argue that individual store managers unilaterally exercised discretion in a common manner that disadvantaged female employees.
Because store-by-store proof would indisputably destroy commonality, the district court simply relieved plaintiffs of the burden of proving their own theory: “Because the focal point will be the practice of utilizing excess subjectivity, rather than the facts concerning each individual decision, the … subjective nature of [Wal-Mart's] personnel practices does not defeat commonality in this case.” Pet. App. 187a *40 (emphasis added). By relieving plaintiffs of proving a statutory element of their case, the district court committed clear legal error. Hohider v. UPS, 574 F.3d 169, 184 (3d Cir. 2009); McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 223-25 (2d Cir. 2008).
If this case were to proceed to trial, and judgment, without requiring plaintiffs to prove that individual employment decisions were unlawful, then Wal-Mart could be held liable for backpay under Title VII to persons who did not suffer any actionable discrimination. The class device cannot be used to subvert the substantive law in this manner. See Philip Morris USA Inc. v. Scott, 131 S. Ct. 1, 3-4 (2010) (Scalia, Circuit Justice).
b. No Discriminatory Animus. Moreover, the Ninth Circuit and the district court failed even to address the intent element, let alone grapple with the fact that determining whether “excess subjectivity” was exercised in an intentionally discriminatory fashion requires individualized proof. See, e. g., Garcia, 444 F.3d at 632.
Where, as here, a multi-facility discrimination class action requires proof of intentional decision-making by managers in separate facilities, it cannot be certified. See Cooper, 390 F.3d at 715. Indeed, under Title VII, plaintiffs would have to prove that the motive for every single discretionary pay and promotion decision affecting every single class member was discrimina-

tory. See 42 U.S.C. § 2000e -5(g)(2). But just as it “does not follow … that the particular supervisors to whom this discretion is delegated always act without discriminatory intent” (Watson, 487 U.S. at 990), it also does not follow that each of them acted with discriminatory intent regarding millions of distinct pay and promotion decisions made within *41 the context of Wal-Mart's express anti-discrimination policies.
The intent element cannot be eliminated simply to achieve class certification. If holding plaintiffs to their burden of proving each element of their claim would foreclose one or more of the Rule 23(a) prerequisites, then the consequence is that the class may not be certified, not that the substantive element of the liability claim can be ignored. See Hohider, 574 F.3d at 184; see also Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1443 (2010) (plurality) (a “class action … leaves the parties' legal rights and duties intact”).
2. Wal-Mart's Defenses
Wal-Mart has a right to present statutory defenses that would by their very nature destroy commonality and typicality (and, for that matter, adequacy). The lower courts, recognizing that allowing Wal-Mart to present the defenses ordinarily available to employers in Title VII cases would undo the cohesiveness necessary for aggregated adjudication of plaintiffs' claims, elected to deny Wal-Mart the right to defend itself. This too was error.
Aggregated disparate-treatment claims normally proceed in two stages. Cooper, 467 U.S. at 876 n.9; Teamsters, 431 U.S. at 336, 361-62. First, the plaintiffs must prove that “discrimination was the company's standard operating procedure.” Teamsters, 431 U.S. at 336. If they carry this burden, a r ebuttable presumption arises that each class member is entitled to appropriate relief. Id. at 361. At the second stage, “a district court must usually conduct additional proceedings … to determine the scope of individual relief” and afford the employer the opportunity “to demonstrate that the individual … was denied*42 an employment opportunity for lawful reasons.” Id. at 361-62; see also 42 U.S.C. § 2000e-5(g)(2)(A).
Like the right to a jury trial, the second stage of a Teamsters-bifurcated proceeding may be dispensed

with only on the consent of both parties. Moreover, at that second stage, the court's task will “not be a simple one” because it has to “make a substantial number of individual determinations” to determine which class members “were actual victims.” Teamsters, 431 U.S. at 371; see also Price Waterhouse, 490 U.S. at 266 (O'Connor, J., concurring in judgment). It would be totally infeasible to make such determinations in this case, as plaintiffs “implicitly concede[d]” below. Pet. App. 251a.
While the district court acknowledged that holding such individual hearings “is impractical on its face,” and “not feasible here” (Pet. App. 251a), it c ertified the class anyway. The court's solution was simply to extinguish Wal-Mart's right to individualized hearings altogether on the theory that such hearings are “inconsistent with the fundamental character of the class action proceeding.” Id. at 245a. By elevating procedure over substance, yet again, the district court transgressed the most critical dictate of the Rules Enabling Act - that the desire to certify a class action must not override substantive rights.
Under Title VII, Wal-Mart is entitled to prove that an individual employment action was taken for non-discriminatory reasons, 42 U.S.C. § 2000e-5(g)(2)(A), or that it “would have taken the same action in the absence of the impermissible motivating factor.” Id. § 2000e-5(g)(2)(B). Thus, even if plaintiffs could prove actionable discrimination, Wal-Mart would be entitled to rebut the claims of each individual class member. See *43Reeb v. Ohio Dep't
of Rehab. & Corr., 435 F.3d 639, 651 (6th Cir. 2006). Moreover, only injured individuals are entitled to recover backpay under Title VII. 42 U.S.C. § 2000e-5(g)(2); Price Waterhouse, 490 U.S. at 245 n.10 (plurality) ( “Title VII does not authorize affirmative relief for individuals as to whom, the employer shows, the existence of systemic discrimination had no effect”).
The Ninth Circuit expressly recognized that, as to some class members, “unequal pay or non-promotion was due to something other than gender discrimination,” but nonetheless endorsed procedures that would let them recover anyway while barring Wal-Mart from presenting its otherwise available defenses to those claims. Pet. App. 110a n.56. The district court was equally explicit: “[Wal-Mart] is not … entitled to circumvent or defeat the class nature of the proceeding

by litigating whether every individual store discriminated against individual class members.” Id. at 247a. There could not be a cl earer violation of the Rules Enabling Act.
The Ninth Circuit's decision also violates Wal-Mart's “right to litigate the issues raised … guaranteed … by the Due Process Clause” (United States v. Armour & Co., 402 U.S. 673, 682 (1971)), which includes the right “to present every available defense.” Lindsey v. Normet, 405 U.S. 56, 66 ( 1972) (internal quotation marks omitted). Corporations, even large ones, do not forfeit their constitutional rights when they are sued. See BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 585 (1996).
In short, in the face of this Court's admonitions that the Rules Enabling Act counsels against “adventurous application” of Rule 23 (Ortiz, 527 U.S. at 845), the courts below refashioned Title VII in service of the procedural class-action device. Had they *44 adhered to the requirements of both governing substantive law and Rule 23(a), they would have reached the inescapable conclusion that this class cannot be certified.
II. The Certification Order Is Not Consistent With Rule 23(b)(2)
Rule 23(b)(2) authorizes certification only where “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” In addition to injunctive and declaratory relief, plaintiffs seek backpay and punitive damages - monetary relief that, in the aggregate, would amount to billions of dollars. Rule 23(b)(2), however, does not authorize certification of any monetary claims, and certainly not individual monetary claims that predominate over the injunctive and declaratory claims, as the monetary claims here clearly do.
In the 1966 a mendments to Rule 23, an older set of class-action categories - “true,” “hybrid,” and “spurious” - was replaced, and the modern class action was born. Amchem, 521 U.S. at 613. Subdivision (b)(1) captures a d efined subset of cases - such as those involving riparian landowners, security holders, or claimants to a limited fund - that inherently required classwide resolution. Fed. R. Civ. P. 23(b)(1); Ortiz, 527 U.S. at 833; Advisory Committee Notes, 39 F.R.D. 69, 100-01 (1966). Subdivision (b)(2) is premised on “the absence of a claim for monetary relief and the

nature of the claim asserted.” Sosna v. Iowa, 419 U.S. 393, 398 n.4 (1975); accord Amchem, 521 U.S. at 614. And subdivision (b)(3) added a more flexible category of action to address “situations in which class action treatment is not as clearly called for as it is in *45Rule 23(b)(1) and (b)(2),” yet is nevertheless “convenient and desirable.” Id. at 615 (internal quotation marks omitted).

Subdivision (b)(3) was an “ ‘adventuresome’ innova-

tion” (Amchem, 521 U.S. at 614) designed to ac-

commodate the “Rule's growing edge.” Ortiz, 527 U.S.

at 862. To prevent abuse, this subdivision was sup-

plemented by “further protective devices” and pro-

cedural requirements not applicable to the other cat-

egories of class actions. Statement on Behalf of the

Advisory Committee on Civil Rules 9 (June 10, 1965),

available

at

http://

www.uscourts.gov/uscourts/RulesAndPolicies/rules/

Reports/CV06-1965.pdf. Specifically, safeguards in

the form of mandatory notice and opt-out procedures

were designed for subdivision (b)(3) alone. Fed. R.

Civ. P. 23(c)(2). And (b)(3) certification was deemed

appropriate only where “questions of law or fact

common to class members predominate over any

questions affecting only individual members” and “a

class action is superior to other available methods” of

adjudication. Plaintiffs here cannot meet this “pre-

dominance” requirement, which is a “vital prescrip-

tion” governing monetary claims that is “far more

demanding” than Rule 23(a)'s commonality require-

ment. Amchem, 521 U.S. at 622-24.

In contrast, Rule 23(b)(2) does not require notice to absent class members, nor does it permit class members to opt out of the lawsuit. For that reason, courts considering certification under Rule 23(b)(2), like those contemplating certification under Rule 23(b)(1) (the other “mandatory” provision), must take the “prudent course” of staying “close to the historical model” and the Advisory Committee's “traditional paradigm.” Ortiz, 527 U.S. at 842, 864; see also Amchem, 521 U.S. at 614, 625; Califano, 442 U.S. at 700-01.

*46 Here, the Ninth Circuit sanctioned a mandatory class of potentially millions of women asserting highly individualized claims for billions of dollars in backpay (and possibly punitive damages). That class finds no support in Rule 23(b)(2)'s plain language or in the provision's historical antecedents.

A. Rule 23(b)(2) Does Not Encompass Claims For Monetary Relief
Rule 23(b)(2) does not on its face authorize certification of any class claims seeking monetary relief. Sosna, 419 U.S. at 397 n.4. This Court has long recognized that the starting point for determining a Federal Rule's meaning and scope is its text. Schmuck v. United States, 489 U.S. 705, 716 ( 1989) (interpretation “is grounded in the language and history of the Rule”); cf. Krupski v. Costa Crociere S.p.A., 130 S. Ct. 2485, 2493 (2010); Libretti v. United States, 516 U.S. 29, 38 (1995).
Rule 23(b)(2)'s text - noticeably absent from the Ninth Circuit's analysis - is plain: Certification is appropriate if the requirements of Rule 23(a) and Rule 23(c) are met, and when “the party opposing the class has acted … on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). The Rule is silent as to monetary relief, or indeed any kind of equitable relief other than injunctive or corresponding declaratory relief. See Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) (expressio unius est exclusio alterius).
This Court therefore has noted the substantial probability that monetary claims cannot be certified under Rule 23(b)(2). Ticor, 511 U.S. at 121. Due *47 process requires an opportunity for absent class members to opt out of claims for monetary relief. Shutts, 472 U.S. at 811-12; see also S. Cent. Bell Tel. Co. v. Alabama, 526 U.S. 160, 167-68 (1999); Richards v. Jefferson Cnty., 517 U.S. 793, 799-802 (1996). Rule 23(b)(2)'s prohibition of opt-outs therefore admits of only two conclusions: Either this subdivision is unconstitutional, or it d oes not apply to monetary claims. The doctrine of constitutional avoidance requires choosing the second option, and limiting Rule 23(b)(2) to the injunctive or corresponding declaratory relief it expressly encompasses. Ortiz, 527 U.S. at 845.
Although some courts, including the district court here (Pet. App. 243a), have purported to confer opt-out rights on (b)(2) class members, Rule 23 does not authorize this procedure, and this Court has repeatedly

warned the lower courts against re-writing the Rule. Amchem, 521 U.S. at 620; see also Leatherman, 507 U.S. at 168; Harris v. Nelson, 394 U.S. 286, 298 (1969). Such unauthorized judicial modifications “undo the careful interplay between Rules 23(b)(2) and (b)(3)” by permitting plaintiffs to pursue substantial monetary claims without “requiring [them] to meet the rigorous Rule 23(b)(3) requirements” of predominance and superiority. McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 554 (5th Cir. 2003); see also Bolin v. Sears, Roebuck & Co., 231 F.3d 970, 976 (5th Cir. 2000); Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 897-99 (7th Cir. 1999). If a court must amend the Rule to satisfy due process, then the Rule simply does not apply. Ortiz, 527 U.S. at 848.
The natural reading of Rule 23(b)(2)'s text and structure is also consistent with the historical model for Rule 23(b)(2). Ortiz held that pre-1966 cases on which the Advisory Committee drew when amending *48 Rule 23 provided both sufficient and presumptively necessary preconditions to certification. 527 U.S. at 842; Pet. App. 148a (Ikuta, J., dissenting). Only those limited categories of cases could proceed as mandatory class actions without the additional requirements and procedural safeguards required under Rule 23(b)(3).
Rule 23(b)(2) was written to encompass “actions in the civil-rights field where a p arty is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration.” Advisory Committee Notes, 39 F.R.D. at 102; see also Amchem, 521 U.S. at 614. That does not mean, of course, that all “civil rights” cases, including any variety of discrimination claims under Title VII, are covered by (b)(2), as plaintiffs have suggested. Pet. Opp. 15. That position would entirely ignore the “illustrative” civil rights actions that the Advisory Committee took care to include. Advisory Committee Notes, 39 F.R.D. at 102.
Every single one of the cases on which the mandatory Rule 23(b)(2) was based involved a challenge to racial segregation. See Pet. App. 149a n.22 (Ikuta, J., dissenting) (citing cases); see also, e.g., Bailey v. Patterson, 369 U.S. 31, 32 (1962) (per curiam); Evers v. Dwyer, 358 U.S. 202, 202 (1958) (per curiam). Litigated before the Civil Rights Acts of 1964 and 1991, these cases sought neither backpay, nor compensatory or punitive damages; they were not tried before juries;

and no individual relief was sought. Bailey, 369 U.S. at 32; Evers, 358 U.S. at 203.
None of the historical antecedents allowed class resolution of monetary claims or addressed individual injury. See, e.g., Potts v. Flax, 313 F.2d 284, 289-90 (5th Cir. 1963) (noting in school desegregation *49 case “considerable doubt” that relief could be confined to certain children). Instead, the drafters permitted only adjudication of injunctive and declaratory claims - a distinction between remedies well-known at the time of both the 1938 and 1966 versions of Rule 23.
All of the historical antecedents involved conduct (a facially discriminatory policy) that affected every class member alike and a naturally cohesive request for injunctive relief to the exclusion of individualized monetary relief. Such challenges to open segregation are a far cry from the novel claims alleged here, which are essentially tort claims for unliquidated damages (see Price Waterhouse, 490 U.S. at 264 (O'Connor, J., concurring in judgment)), based on individualized pay and promotion decisions, made through the exercise of discretion within a system of identified criteria governed by express anti-discrimination and diversity policies meant to foster equal treatment. To say the least, these claims are at the “growing edge” of class-action law contemplated by Rule 23(b)(3), not the well-known desegregation cases captured in Rule 23(b)(2)'s historical antecedents. Ortiz, 527 U.S. at 862; cf. Castano v. Am. Tobacco Co., 84 F.3d 734, 746-47 (5th Cir. 1996).
Fidelity to the text, structure, and historical antecedents does not prevent class-based litigation of employment cases. Rather, it s imply instructs that the appropriate class certification analysis for claims for monetary relief, or for novel theories of decentralized, intentional discrimination not contemplated by the antecedents, is that described in Rule 23(b)(3). See, e.g., Reeb, 435 F.3d at 651. That category, with its due process protections for absent class members and defendants (including finality and security from later collateral attack), is the appropriate vehicle for *50 such cases. See Falcon, 457 U.S. at 161 (critiquing the “tacit assumption” that “all will be well for surely the plaintiff will win and manna will fall on all members of the class”) (internal quotation marks omitted).
B. Plaintiffs' Monetary Claims “Predominate”

Several circuits have ruled that some monetary claims may proceed under Rule 23(b)(2). These decisions rest entirely on an inference drawn from the Advisory Committee's statement that a class cannot be certified under Rule 23(b)(2) where the relief sought “relates … predominantly to money damages.” Advisory Committee Notes, 39 F.R.D. at 102; see also Krupski, 130 S. Ct. at 2498-99 (Scalia, J., concurring) (explaining that Advisory Committee Notes cannot supersede the plain text of a Rule).
The circuits have developed three approaches for determining when monetary claims “predominate”: the “incidental damages” approach articulated by the Fifth Circuit and adopted by most others, the “ad hoc” approach applied only in the Second Circuit, and the “superior-in-strength” approach announced for the first time in the decision below. Pet. 10-12. Under any of these three approaches, the billions of dollars of monetary relief sought here predominate and may not, therefore, be certified under Rule 23(b)(2).
If the Court elects to depart from Rule 23(b)(2)'s text, structure, and history, and allow some claims for monetary relief to be certified under that subdivision, it should adopt a variant of the “incidental damages” standard. That approach, followed by the majority of the circuits, provides that Rule 23(b)(2) certification is prohibited where plaintiffs seek *51 monetary relief unless the relief sought will “flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998); see also Reeb, 435 F.3d at 649-50; Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311, 330 n.25 (4th Cir. 2006); Cooper, 390 F.3d at 720; Lemon v. Int'l Union of Operating Eng'rs, 216 F.3d 577, 580-81 (7th Cir. 2000).
Unlike the alternatives articulated by the Second and Ninth Circuits, the incidental damages standard comes closest to capturing the two key elements of an appropriate Rule 23(b)(2) class. First, the relief provided extends, as the Rule itself requires, to the class “as a whole.” Fed. R. Civ. P. 23(b)(2). Second, when properly applied, the standard permits only those forms of monetary relief that occur automatically or naturally flow from the injunctive relief, without the necessity of further individualized hearings. The prototypical examples are attorneys' fees and costs.

See, e.g., 42 U.S.C. § 1988. Such relief does not necessarily undermine Rule 23(b)(2) cohesion because it benefits the class as a whole and does not require individualized entitlement determinations - and it furthers civil rights enforcement consistent with Rule 23(b)(2)'s historical antecedents.
1. The Majority Of The Class Has Standing To Seek Only Monetary Relief
Rule 23(b)(2) authorizes certification where “final injunctive or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2) (emphasis added). That is not the case here.
*52 A majority of the members of this purported class are former employees who lack standing to secure injunctive or declaratory relief. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). More than half of the declarations submitted by plaintiffs are from former employees, and plaintiffs themselves have pointed to a 55.6% annual turnover rate in the retail industry. C.A. Dkt. 150 at 4 n.1 (No. 04-16688).
The Ninth Circuit purported to “solve” this problem by limiting the class to those persons who were employed on or after the date the complaint was filed. Pet. App. 100a-102a. But that arbitrary line-drawing ignores fundamental principles of constitutional law. A plaintiff who left the company the day after the complaint was filed no more has standing to obtain injunctive or declaratory relief than a p erson who quit the day before; each plaintiff must have standing to secure the requested relief throughout the lawsuit. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Deakins v. Monaghan, 484 U.S. 193, 199-200 (1988); see also Ortiz, 527 U.S. at 831 (Rule 23 “must be interpreted in keeping with Article III constraints”) (internal quotation marks omitted); O'Shea v. Littleton, 414 U.S. 488, 494 (1974).
Because more class members are seeking only individual monetary relief than may seek the relief authorized by Rule 23(b)(2), the injunctive and declaratory relief requests cannot possibly predominate over the monetary relief requests under any standard. Cooper, 390 F.3d at 721.
*53 2. Plaintiffs' Backpay Claims “Predominate”

The fact that plaintiffs are seeking monetary relief in the form of backpay, as opposed to compensatory damages, does not alter the conclusion that the request for monetary relief predominates.
While some lower courts have certified Rule 23(b)(2) classes seeking backpay on the basis that such claims are “equitable,” none of those courts has attempted to reconcile a b ackpay request with the fact that Rule 23(b)(2) is expressly limited to declaratory and injunctive relief. See, e.g., Domingo v. New England Fish Co., 727 F.2d 1429, 1445 (9th Cir. 1984) (per curiam) (citing cases); Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211, 259-60 (5th Cir. 1974). If the “Rule's drafters had intended the Rule to extend to all forms of equitable relief” - rather than just to injunctive or corresponding declaratory relief - “the text of the Rule would say so.” Thorn, 445 F.3d at 331. Instead, Rule 23(b)(2)'s text says “nothing whatsoever about equitable relief.” Ibid.
While backpay is a form of monetary relief that is sometimes characterized as equitable, it is ultimately nothing more than monetary compensation for past harm. “Congress treated backpay as equitable in Title VII only in the narrow sense that [Title VII] allowed backpay to be awarded together with equitable relief.” Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 218 n .4 (2002) (internal quotation marks, alteration, and citation omitted).
Moreover, the features that make backpay “an integral part of an equitable remedy, a f orm of restitution” (Curtis v. Loether, 415 U.S. 189, 197 (1974)), are those that render it p articularly ill-suited to Rule 23(b)(2) certification. That is because even after a *54 determination of liability, backpay awards are discretionary, not automatic, and therefore require an individual analysis with respect to each plaintiff to determine whether the court should exercise its discretion. 42 U.S.C. § 2000e-5(g)(2); see also Ford Motor Co. v. EEOC, 458 U.S. 219, 226 (1982) (confirming that “backpay is not an automatic or mandatory remedy”) (internal quotation marks omitted); Albemarle Paper Co. v. Moody, 422 U.S. 405, 424 (1975) (Title VII backpay awards are discretionary in reaching “a just result in light of the circumstances peculiar to the case”) (internal quotation marks omitted); cf. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391-93 (2006) (“injunctive relief is an act of equitable discretion”

that does not follow “automatically” from liability determination).
And as this Court has repeatedly made clear, Title VII bars “affirmative relief” where the employer shows that an individual suffered no injury. Compare Price Waterhouse, 490 U.S. at 245 n.10 (plurality), and Stotts, 467 U.S. at 579, with Pettway, 494 F.3d at 257 (assuming relief need not relate to who was injured or the extent of the injury).
Although in most cases, including this one, the highly individualized nature of a backpay claim should preclude (b)(2) certification because the claim is not based on grounds generally applicable to the class, some courts have suggested that such certification might be appropriate where injunctive and declaratory relief predominate despite the presence of a request for backpay. See Hohider, 574 F.3d at 202 (“it [is] necessary … to determine whether plaintiffs' back-pay request actually conforms with the requirements of Rule 23, including Rule 23(b)(2)'s monetary-predominance standard”); Thorn, 445 F.3d at 331; *55Heffner v. Blue Cross & Blue Shield of Ala., Inc., 443 F.3d 1330, 1340 (11th Cir. 2006); Eubanks v. Billington, 110 F.3d 87, 95 (D.C. Cir. 1997).
But those courts would not permit certification in this case. The backpay sought here is not a “uniform group remed[y]” unrelated to the “merits of each class member's individual case.” Allison, 151 F.3d at 414; see Lemon, 216 F.3d at 581. Given that it would take a trier of fact years (if not decades) to conduct additional proceedings - which nearly every court to consider the issue has required as part of the (b)(2) certification the backpay request is anything but “incidental.” See Shipes v. Trinity Indus., 987 F.2d 311, 315 (5th Cir. 1993) (explaining that it took from 1985 to 1992 to process the backpay claims of a class of 400 e mployees). And awarding backpay without individualized hearings to determine each class member's entitlement to such recovery, through a “formula” or otherwise, would violate the Rules Enabling Act and due process. McLaughlin, 522 F.3d at 231-32; In re Hotel Tel. Charges, 500 F.2d 86, 90 (9th Cir. 1974). Under any and all standards, therefore, the billions of dollars of backpay claims predominate - indeed, they engulf every other issue in the case.
3. Punitive Damages Will Always Predominate

No court of appeals has ever before suggested that punitive damages could be certified under Rule 23(b)(2). In seeking such certification, plaintiffs pursued a novel and aggressive litigation strategy; in not foreclosing that strategy, the Ninth Circuit broke ranks with every other circuit.
This Court has “admonished that ‘punitive damages pose an acute danger of arbitrary deprivation of property.’ ” *56State Farm Mut. Auto. Ins. Co. v. Camp bell, 538 U.S. 408, 417 (2003) (quoting Honda Motor Co. v. Oberg, 512 U.S. 415, 432 (1994)). These due process concerns are magnified in class actions. See Allison, 151 F.3d at 418; Cooper, 390 F.3d at 721.
The Ninth Circuit wrongly noted in passing that “this case does not require individualized punitive damages determinations.” Pet. App. 98a. In fact, every case litigated under Title VII requires individualized determinations before punitive damages can be awarded, because only an “aggrieved individual” can collect punitive damages. 42 U.S.C. § 1981a(b)(1). And Title VII unequivocally precludes any monetary award to nonvictims. See id. § 2000e-5(g)(2); Price Waterhouse, 490 U.S. at 245 n.10 (plurality); Costa, 299 F.3d at 857.
Moreover, due process forbids courts from “punish[ing] and deter[ing] conduct that bore no relation to the [plaintiffs'] harm.” State Farm, 538 U.S. at 422. In Philip Morris USA v. Williams, 549 U.S. 346 (2007), this Court squarely held that “the Due Process Clause prohibits a State from punishing an individual without first providing that individual with an opportunity to present every available defense.” Id. at 353 (emphasis added) (internal quotation marks omitted). And the Seventh Amendment, which guarantees the right to a jury trial, also preserves Wal-Mart's right to have those defenses resolved by the same jury that decided liability. See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355 (1998); Tull v. United States, 481 U.S. 412, 422-23 (1987).
Thus, to recover punitive damages, in addition to proving intentional discrimination, class members here must “make an additional ‘demonstrat[ion]’ of their eligibility for punitive damages.” *57Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 534 (1999) (emphasis added; alteration in original) (citing 42 U.S.C. § 1981a(b)(1)). As with plaintiffs' backpay claims, that highly individualized proof fatally undermines the

cohesion necessary under Rule 23(b)(2). Barnes v. Am. Tobacco Co., 161 F.3d 127, 143 (3d Cir. 1998).
***
Class actions serve a valuable role in our civil justice system. But while some aggregation may increase efficiency without sacrificing fairness, aggregation for its own sake, especially on the excessive scale and unlimited scope presented here, is neither efficient nor fair to anyone. Courts must ensure that the substantive rights of the parties - including defendants and absent class members - are not sacrificed on the altar of procedure. Amchem, 521 U.S. at 629. The courts below failed to do so.
CONCLUSION
The judgment should be reversed and the case remanded with instructions to decertify the class.
*1A APPENDIX
28 U.S.C. § 2072 provides:
§ 2072. Rules of procedure and evidence; power to prescribe
(a) The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals.
(b) Such rules shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
(c) Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291 of this title.
42 U.S.C. § 1981 provides:
§ 1981. Equal rights under the law
(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
*2a (b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
42 U.S.C. § 1981a provides:
§ 1981a. Damages in cases of intentional discrimination in employment
(a) Right of recovery
(1) Civil rights
In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. 2000e-5, 2000e-16] against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act [42 U.S.C. 2000e-2, 2000e-3, 2000e-16], and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.
(2) Disability
In an action brought by a complaining party under the

powers, remedies, and procedures set forth in *3a section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. 2000e-5, 2000e-16] (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section 794a(a)(1) of title 29, respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) under section 791 of title 29 and the regulations implementing section 791 of title 29, or who violated the requirements of section 791 of title 29 or the regulations implementing section 791 of title 29 concerning the provision of a reasonable accommodation, or section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of section 102(b)(5) of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.
(3) Reasonable accommodation and good faith effort
In cases where a discriminatory practice involves the provision of a reasonable accommodation pursuant to section 102(b)(5) of the Americans with Disabilities Act of 1990 [ 42 U.S.C. 12112(b)(5)] or regulations implementing section 791 of title 29, damages may not be awarded under this section where the covered entity demonstrates good faith efforts, in consultation with the person with the disability who has informed the covered entity that accommodation is needed, to identify and make a reasonable accommodation that would provide such individual with an equally effective opportunity and would not cause an undue hardship on the operation of the business.
*4a (b) Compensatory and punitive damages
(1) Determination of punitive damages
A complaining party may recover punitive damages under this section against a respondent (other than a government, government agency or political subdivision) if the complaining party demonstrates that the respondent engaged in a d iscriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual.

(2) Exclusions from compensatory damages
Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C. 2000e-5(g)].
(3) Limitations
The sum of the amount of compensatory damages awarded under this section for future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses, and the amount of punitive damages awarded under this section, shall not exceed, for each complaining party -
(A) in the case of a respondent who has more than 14 and fewer than 101 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $50,000;
(B) in the case of a respondent who has more than 100 and fewer than 201 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $100,000; and
(C) in the case of a respondent who has more than 200 and fewer than 501 e mployees in each of 20 or *5a more calendar weeks in the current or preceding calendar year, $200,000; and
(D) in the case of a respondent who has more than 500 employees in each of 20 or more calendar weeks in the current or preceding calendar year, $300,000.
(4) Construction
Nothing in this section shall be construed to limit the scope of, or the relief available under, section 1981 of this title.
(c) Jury trial
If a complaining party seeks compensatory or punitive damages under this section -
(1) any party may demand a trial by jury; and

(2) the court shall not inform the jury of the limitations described in subsection (b)(3) of this section.
(d) Definitions
As used in this section:
(1) Complaining party
The term “complaining party” means -
(A) in the case of a person seeking to bring an action under subsection (a)(1) of this section, the Equal Employment Opportunity Commission, the Attorney General, or a person who may bring an action or proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.); or
(B) in the case of a person seeking to bring an action under subsection (a)(2) of this section, the Equal Employment Opportunity Commission, the Attorney General, a p erson who may bring an action or proceeding under section 794a(a)(1) of title 29, or a person who may bring an action or proceeding under title I of the Americans with Disabilities Act of 1990 [42 U.S.C. 12111 et seq.].
*6a (2) Discriminatory practice
The term “discriminatory practice” means the discrimination described in paragraph (1), or the discrimination or the violation described in paragraph (2), of subsection (a) of this section.
42 U.S.C. § 2000e-2 provides in relevant part:
§ 2000e-2. Unlawful employment practices
(a) Employer practices
It shall be an unlawful employment practice for an employer -
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
***
(j) Preferential treatment not to be granted on account of existing number or percentage imbalance
Nothing contained in this subchapter shall be interpreted to require any employer, employment agency, labor organization, or joint labor-management committee subject to this subchapter to grant preferential treatment to any individual or to *7a any group because of the race, color, religion, sex, or national origin of such individual or group on account of an imbalance which may exist with respect to the total number or percentage of persons of any race, color, religion, sex, or national origin employed by any employer, referred or classified for employment by any employment agency or labor organization, admitted to membership or classified by any labor organization, or admitted to, or employed in, any apprenticeship or other training program, in comparison with the total number or percentage of persons of such race, color, religion, sex, or national origin in any community, State, section, or other area, or in the available work force in any community, State, section, or other area.
(k) Burden of proof in disparate impact cases
(1)(A) An unlawful employment practice based on disparate impact is established under this subchapter only if -
(i) a complaining party demonstrates that a respondent uses a p articular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent

refuses to adopt such alternative employment practice.
(B)(i) With respect to demonstrating that a particular employment practice causes a d isparate impact as described in subparagraph (A)(i), the complaining*8a party shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent's decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.
(ii) If the respondent demonstrates that a specific employment practice does not cause the disparate impact, the respondent shall not be required to demonstrate that such practice is required by business necessity.
(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.
(2) A demonstration that an employment practice is required by business necessity may not be used as a defense against a cl aim of intentional discrimination under this subchapter.
(3) Notwithstanding any other provision of this subchapter, a rule barring the employment of an individual who currently and knowingly uses or possesses a controlled substance, as defined in schedules I and II of section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)), other than the use or possession of a drug taken under the supervision of a licensed health care professional, or any other use or possession authorized by the Controlled Substances Act [21 U.S.C. 801 et seq.] or any other provision of Federal law, shall be considered an unlawful employment practice under this subchapter only if such rule is adopted or applied with an intent to discriminate because of race, color, religion, sex, or national origin.
*9a ***
(m) Impermissible consideration of race, color, religion, sex, or national origin in employment practices
Except as otherwise provided in this subchapter, an

unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.
***
42 U.S.C. § 2000e-3 provides in relevant part:
§ 2000e-3. Other unlawful employment practices
(a) Discrimination for making charges, testifying, assisting, or participating in enforcement proceedings
It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment, for an employment agency, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, to discriminate against any individual, or for a labor organization to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
***
*10a 42 U.S.C. § 2000e-5 provides in relevant part:
§ 2000e-5. Enforcement provisions
***
(f) Civil action by Commission, Attorney General, or person aggrieved; preconditions; procedure; ap-
pointment of attorney; payment of fees, costs, or security; intervention; stay of Federal proceedings; action for appropriate temporary or preliminary relief pending final disposition of charge; jurisdiction and venue of United States courts; designation of judge to
hear and determine case; assignment of case for hearing; expedition of case; appointment of master
***

(3) Each United States district court and each United States court of a place subject to the jurisdiction of the United States shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office *11a shall in all cases be considered a district in which the action might have been brought.
***
(g) Injunctions; appropriate affirmative action; equitable relief; accrual of back pay; reduction of back
pay; limitations on judicial orders
(1) If the court finds that the respondent has intentionally engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include, but is not limited to, reinstatement or hiring of employees, with or without back pay (payable by the employer, employment agency, or labor organization, as the case may be, responsible for the unlawful employment practice), or any other equitable relief as the court deems appropriate. Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission. Interim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.
(2)(A) No order of the court shall require the admission or reinstatement of an individual as a member of a union, or the hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any back pay, if such individual was refused admission, suspended, or expelled, or was refused em-

ployment or advancement or was suspended or discharged for any reason other than discrimination on account of race, color, religion, sex, or *12a national origin or in violation of section 2000e-3(a) of this title.
(B) On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court -
(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and
(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring, promotion, or payment, described in subparagraph (A).
***
Federal Rule of Civil Procedure 23 provides:
Rule 23. Class Actions
(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:
(1) the class is so numerous that joinder of all members is impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately protect the interests of the class.
*13a (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:
(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:
(A) the class members' interests in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;
*14a (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action.
(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.
(1) Certification Order.
(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).

(C) Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.
(2) Notice.
(A) For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.
(B) For (b)(3) Classes. For any class certified under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language:
(i) the nature of the action;
(ii) the definition of the class certified;
*15a (iii) the class claims, issues, or defenses;
(iv) that a cl ass member may enter an appearance through an attorney if the member so desires;
(v) that the court will exclude from the class any member who requests exclusion;
(vi) the time and manner for requesting exclusion; and
(vii) the binding effect of a class judgment on members under Rule 23(c)(3).
(3) Judgment. Whether or not favorable to the class, the judgment in a class action must:
(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and
(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.

(4) Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
(5) Subclasses. When appropriate, a cl ass may be divided into subclasses that are each treated as a class under this rule.
(d) Conducting the Action.
(1) In General. In conducting an action under this rule, the court may issue orders that:
(A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;
*16a (B) require--to protect class members and fairly conduct the action-- giving appropriate notice to some or all class members of:
(i) any step in the action;
(ii) the proposed extent of the judgment; or
(iii) the members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
(C) impose conditions on the representative parties or on intervenors;
(D) require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or
(E) deal with similar procedural matters.
(2) Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16.
(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dis-

missal, or compromise:
(1) The court must direct notice in a r easonable manner to all class members who would be bound by the proposal.
(2) If the proposal would bind class members, the court may approve it only after a hearing and on finding that it is fair, reasonable, and adequate.
*17a (3) The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
(4) If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
(5) Any class member may object to the proposal if it requires court approval under this subdivision (e); the objection may be withdrawn only with the court's approval.
(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule if a petition for permission to appeal is filed with the circuit clerk within 14 days after the order is entered. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.
(g) Class Counsel.
(1) Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a cl ass must appoint class counsel. In appointing class counsel, the court:
(A) must consider:
(i) the work counsel has done in identifying or investigating potential claims in the action;
(ii) counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;

(iii) counsel's knowledge of the applicable law; and
*18a (iv) the resources that counsel will commit to representing the class;
(B) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;
(C) may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs;
(D) may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and
(E) may make further orders in connection with the appointment.
(2) Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.
(3) Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a cl ass action.
(4) Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class.
(h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement. The following procedures apply:
*19a (1) A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

(2) A class member, or a party from whom payment is sought, may object to the motion.
(3) The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a).
(4) The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D).
Wal-Mart Stores, Inc. v. Dukes 2011 WL 201045 (U.S. ) (Appellate Brief )
END OF DOCUMENT

 
 Supreme Court of the United States.
WAL-MART STORES, INC., Petitioner, v.
Betty DUKES, et al., Respondents. No. 10-277.
February 22, 2011.
On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit
Brief for Respondents
Joseph M. Sellers Christine E. Webber Jenny R. Yang Kalpana Kotagal Cohen Milstein Sellers & Toll PLLC 1100 New York Avenue, N.W. West Tower, Suite 500 Washington, D.C. 20005 (202) 408-4600 Brad Seligman Counsel of Record Jocelyn D. Larkin The Impact Fund 125 University Avenue, Suite 102 Berkeley, CA 94710 (510) 845-3473 bseligman@impactfund.org Steven Stemerman Elizabeth A. Lawrence Davis, Cowell & Bowe, LLP 595 Market Street, Suite 1400 San Francisco, CA 94105 (415) 597-7200 Arcelia Hurtado Noreen Farell Equal Rights Advocates 180 Howard Street, Suite 300 San Francisco, CA 94105 (415) 621-0672 Sheila Y. Thomas Law Office of Sheila Thomas 5260 Proctor Avenue Oakland, CA 94618 (510) 339-3739 Stephen Tinkler

The Tinkler Law Firm 309 Johnson Street Santa Fe, NM 87501 (505) 982-8533 Merit Bennett The Bennett Firm 460 St. Michaels Drive, Suite 703 Santa Fe, NM 87505 (505) 983-9834 Debra Gardner Public Justice Center 1 N. Charles Street, Suite 200 Baltimore, MD 21201 (410) 625-9409 Shauna Marshall Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 (415) 565-4685 Counsel for Respondents
*i TABLE OF CONTENTS
STATEMENT ... 1
SUMMARY OF ARGUMENT ... 4
ARGUMENT ... 9
I. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT DETERMINED THAT RULE 23(a) REQUIREMENTS HAD BEEN SATISFIED ... 10
A. The District Court Properly Held that Plaintiffs Demonstrated Common Questions of Law or Fact ... 12
1. A System of Subjective Decision-Making Can Constitute a Common Employment Practice ... 13
2. The Evidence Supports the Finding that Wal-Mart's Practices Raised Common Questions ... 14
3. Neither Rule 23 nor Title VII Imposes a H eightened Commonality Standard for Challenges to Subjective Criteria ... 23

4. Rule 23(a)(2) Does Not Restrict the Evidence that May Be Proferred to Support the Presence of Common Questions ... 30
B. The District Court Properly Held that Plaintiffs Demonstrated Typicality ... 37
*ii C. The District Court Properly Concluded that the Named Plaintiffs Were Adequate Representatives ... 39
D. Certification Has Not Altered Substantive Law ... 41
1. Discriminatory Intent May Be Proven Classwide ... 42
2. Mixed Motive Defense Does Not Apply to Plaintiffs' Claims ... 43
3. Individual Stage II Trials Are Not Required ... 45
4. There Is No Due Process Right to Defend Claims Individually ... 47
II. CLAIMS FOR MONETARY RELIEF MAY BE CERTIFIED UNDER RULE 23(b)(2) ... 48
A. Rule 23(b)(2) Does Not Limit Certification to Cases Seeking Exclusively Injunctive or Corresponding Declaratory Relief ... 48
B. The Back Pay Remedy in Title VII Class Actions Is Consistent with Certification Under Rule 23(b)(2) ... 55
C. Former Employees Are Properly Included in a Rule 23(b)(2) Class ... 61
D. Punitive Damages May Be Certified Under Rule 23(b)(2) in Some Cases ... 64
CONCLUSION ... 67
*iii APPENDIX
Declaration of Dr. Richard Drogin in Support Plaintiffs' Reply Brief in Support of Class Certification (July 1, 2003) ... RA 1
Email from Charlyn Jarrells Porter to Oneil Clark and

Kevin Harper (June 27, 2002) ... RA 41
Excerpts from Walton Institute Diversity Questions ... RA 42
Memorandum re Women in Leadership ... RA 47
Excerpts from Diversity Management, Inc. Memorandum ... RA 52
*iv TABLE OF AUTHORITIES
Cases
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 56, 57, 58
Allen v. Int'l Truck & Engine Corp., 358 F.3d 469 (7th Cir. 2004) ... 66
Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) ... passim
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ... 12, 39, 50, 52
Bazemore v. Friday, 478 U.S. 385 (1986) ... 43
Beattie v. CenturyTel, Inc., 511 F.3d 554 (6th Cir. 2007) ... 39
Brown v. Nucor Corp., 576 F.3d 149 (4th Cir. 2009) ... 14, 34
Califano v. Yamasaki, 442 U.S. 682 (1979) ... 12, 43, 65
Capaci v. Katz & Besthoff, 711 F.2d 647 (5th Cir. 1983) ... 31
Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999) ... 43
Carnegie v. Household Fin., 376 F.3d 656 (7th Cir. 2004) ... 60
Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001) ... 65

Cooper v. Fed. Reserve Bank, 467 U.S. 867 (1984) ... 42, 59
Cooper v. S. Co., 390 F.3d 695 (11th Cir. 2004) ... 56
*v Cooter & Gell v. Hartmarx, 496 U.S. 384 (1990) ... 11, 12
Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345 (1983) ... 62
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) ... 7, 37
Denney v. Deutsche Bank AG, 443 F.3d 253 (2d Cir. 2006) ... 39
Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) ... 27, 28, 44
DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188 (10th Cir. 2010) ... 29, 38
Domingo v. New England Fish Co., 727 F.2d 1429 (9th Cir. 1984) ... 46
EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241 (10th Cir. 1999) ... 29
Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) ... 12, 50
Eubanks v. Billington, 110 F.3d 87 (D.C. Cir. 1997) ... 55
Fogg v. Gonzales, 492 F.3d 447 (D.C. Cir. 2007) ... 44
Forbush v. J.C. Penney Co., 994 F.2d 1101 (5th Cir. 1993) ... 29
Ford Motor Co. v. EEOC, 458 U.S. 219 (1982) ... 63
Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) ... 45, 61
*vi Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147 (1982) ... passim
Gratz v. Bollinger, 539 U.S. 244 (2003) ... 63

Great-West Life & Annuity Ins. Co v. Knudson, 534 U.S. 204 (2002) ... 58
Griffin v. Dugger, 823 F.2d 1476 (11th Cir. 1987) ... 26, 28
Gunnells v. Healthplan Servs. Inc., 348 F.3d 417 (4th Cir. 2003) ... 39
Hameed v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers Local Union No. 396, 637 F.2d 506 (8th Cir. 1980) ... 46
Hansberry v. Lee, 311 U.S. 32 (1940) ... 40
Hazelwood Sch. Dist. v. United States, 433 U.S. 299 (1977) ... 4, 5, 13
Hohider v. UPS, Inc., 574 F.3d 169 (3d Cir. 2009) ... 43
In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24 (2d Cir. 2006) ... 11, 43
Int'l Bhd. of Teamsters v. United States, 431 U.S. 324 (1977) ... passim
Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894 (7th Cir. 1999) ... 56, 66
Jenkins v. Raymark Indus., Inc., 782 F.2d 468 (5th Cir. 1986) ... 12
Kincade v. Gen. Tire & Rubber Co., 635 F.2d 501 (5th Cir. 1981) ... 53
*vii Kirby v. Colony Furniture Co., 613 F.2d 696 (8th Cir. 1980) ... 56
Kohen v. Pacific Inv. Mgmt. Co., 571 F.3d 672 (7th Cir. 2009) ... 29, 40
Kolstad v. Am. Dental Ass'n, 527 U.S. 526 (1999) ... 57, 65
Lewis v. City of Chicago, ___ U.S. ___, 130 S. Ct. 2191 (2010) ... 28, 42, 44, 63
Lindsey v. Normet, 405 U.S. 56 (1972) ... 47

McClain v. Lufkin Indus., Inc., 519 F.3d 264 (5th Cir. 2008) ... 14, 44
In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004) ... 52, 55
Morrissey v. Brewer, 408 U.S. 471 (1972) ... 53
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002) ... 35
In re Nassau Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) ... 66
Ortiz v. Fibreboard, 527 U.S. 815 (1999) ... 52
Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256 (1979) ... 10, 43
Pettway v. Am. Cast Iron Pipe Co., 494 F.2d 211 (5th Cir. 1974) ... 46, 50, 56, 58, 67
Pettway v. Am. Cast Iron Pipe Co., 681 F.2d 1259 (11th Cir. 1982) ... 46
*viii Phillip Morris USA v. Williams, 549 U.S. 346 (2007) ... 66
Phillips Petroleum v. Shutts, 472 U.S. 797 (1985) ... 54
Pitre v. W. Elec. Co., 843 F.2d 1262 (10th Cir. 1988) ... 45
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ... 36
Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639 (6th Cir. 2006) ... 56, 59
Rich v. Martin Marietta Corp., 522 F.2d 333 ( 10th Cir. 1975) ... 56
Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir. 1971) ... 56
Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 127 (2d Cir. 2001) ... 55, 56
Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ... 64

Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590 (2d Cir. 1986) ... 40
Schleicher v. Wendt, 618 F.3d 679 (7th Cir. 2010) ... 12
Segar v. Smith, 738 F.2d 1249 (D.C. Cir. 1984) ... 31, 45
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., ___ U.S. ___, 130 S. Ct. 1431 (2010) ... 24, 50
State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ... 66
*ix Staton v. Boeing Co., 327 F.3d 938 (9th Cir. 2003) ... 26, 40, 43
Stewart v. GM Corp., 542 F.2d 445 (7th Cir. 1976) ... 46
Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) ... 54
United States Parole Comm'n v. Geraghty, 445 U.S. 388 (1980) ... 61
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) ... 29
United States v. Armour & Co., 402 U.S. 673 (1971) ... 48
United States v. Burke, 504 U.S. 229 (1992) ... 57
In re Universal Serv. Fund Tel. Billing Practices Litig., 219 F.R.D. 661 (D. Kan. 2004) ... 41
Wal-Mart Stores, Inc. v. Visa USA Inc., 396 F.3d 96 (2d Cir. 2005) ... 41
Walters v. Reno, 145 F.3d 1032 (9th Cir. 1998) ... 30
Ward v. Dixie Nat'l Life Ins. Co., 595 F.3d 164 (4th Cir. 2010) ... 39, 40
Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989) ... 34
Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988) ... passim
Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir.

1975) ... passim
Wilkinson v. Austin, 545 U.S. 209 (2005) ... 53
*x Statutes & Rules
42 U.S.C. § 1981a ... 57, 65
42 U.S.C. § 2000e ... passim
Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964) ... 51
Fed. R. Civ. P. 16 ... 48
Fed. R. Civ. P. 23 ... passim
Fed. R. Evid. 601 ... 35
Fed. R. Evid. 702 ... 37
Other Authorities
1 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 3:10 (4th ed. 2002) ... 12
3 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 10:2 (4th ed. 2002) ... 47
Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Fed. R. Civ. P. (I), 81 Harv. L. Rev. 356 (1967) ... 52
Manual for Complex Litigation § 11.64 (4th ed. 2009) ... 48
Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District Court, 34 F.R.D. 325 (1964) ... 51
*1 STATEMENT
This case challenges Wal-Mart's uniform pay and promotion policies for its retail store employees. Those policies fail to provide any application or posting process for promotions to store management or job-related criteria for setting pay or making promotion decisions - standard practices in the American workplace. Instead, Wal-Mart

has chosen to adopt and maintain highly subjective policies, which are implemented, monitored and enforced on a daily basis by its Home Office to ensure consistency in results.
These subjective personnel decisions are exercised within a corporate culture that is rife with gender stereotypes demeaning to female employees: Wal-Mart executives refer to women employees as “Janie Qs,” approve holding business meetings at Hooters restaurants, and attribute the absence of women in top positions to men being more aggressive in seeking advancement. The record supporting class certification was replete with evidence of the same kind of gender bias attributable to managers at all levels of the company. Thus, for example, named plaintiff Christine Kwapnoski was told that her male co-worker received a large raise “because [he] had a f amily to support.” Wal-Mart's subjective personnel policies have operated as a vehicle for perpetrating gender bias in its pay and promotion decisions.
*2 As Wal-Mart has long recognized, its female workforce has borne the brunt of these subjective policies. Even though its own data shows that its female employees are, on average, better performers and more experienced than their male counterparts, women's pay lags far behind that of male employees in every major job in each of the company's 41 regions. Women at Wal-Mart also face a classic glass ceiling - while women comprise over 80% of hourly supervisors, they hold only one-third of store management jobs and their ranks steadily diminish at each successive step in the management hierarchy.
Relying on long-standing statutory and Supreme Court authority, plaintiffs allege that Wal-Mart's policies discriminate against women in violation of Title VII. The class is limited to female retail store workers, the majority of whom hold one of only five hourly jobs. Regardless of their job titles or store location, these women are subject to the same uniform personnel policies. After a s earching review of the substantial evidentiary record, the district court concluded that plaintiffs had satisfied Rule 23.
With this appeal, Wal-Mart attempts to dismantle several fundamental pillars of this Court's employment discrimination class action jurisprudence. • It disputes that a policy of subjective decision-making is an employment practice that may be challenged under Title VII and would impose heightened Rule 23(a) standards for such cases. *3 • It would eliminate the use of pattern or practice methods of proof established by this Court in International

Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). It would instead require that each woman's claim be litigated individually, even though the company failed to retain records that would allow the district court to conduct reliable individual remedies hearings. • It would limit certification under Rule 23(b)(2) to cases seeking exclusively injunctive or declaratory relief.
These radical and far-reaching proposals to change the law find no support in Rule 23 or Title VII. Instead, they would subvert the goal of allowing workers to vindicate their rights as a cl ass, precluding certification of all but the smallest employment discrimination cases, and would require this Court to overrule 45 years of civil rights and class action precedent. Wal-Mart's arguments also largely ignore - and are inapplicable to - plaintiffs' disparate impact claims where proof of intent is unnecessary.
In place of a s ingle class action in which all common questions would be resolved - one way or the other Wal-Mart would burden the federal courts with potentially thousands of store-level cases. This outcome would not only waste judicial resources, it would deprive plaintiffs of the ability to challenge and seek relief from Wal-Mart's systemic, company-wide practices. A multiplicity of cases could mask the otherwise unmistakable pattern of discrimination *4 against women throughout the company and obscure the role of senior management in maintaining this discriminatory system. Finally, many of these claims, which amount to an average annual wage loss of $1,100, would be too small to pursue.
SUMMARY OF ARGUMENT
1. The district court conducted a searching and rigorous analysis of the substantial evidentiary record and correctly applied Rule 23. App. 48a. Wal-Mart ignores the extensive findings of fact below and urges this Court to reweigh a daunting array of factual questions. The district court's decision to certify the class is subject to review for abuse of discretion; its findings are entitled to deference, unless clearly erroneous.
2. With respect to Rule 23(a), plaintiffs have identified an “employment practice” - subjective decision-making adversely affecting women - that may be challenged under either disparate treatment or disparate impact analysis. Hazelwood Sch. Dist. v. United States, 433 U.S. 299, 301, 302 (1977); Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 989-91 (1988). Contrary to Wal-Mart's claim that the case is nothing more than a challenge to millions of local

decisions, the district court found that Wal-Mart operates through common subjective policies implemented by managers at all levels, and that plaintiffs demonstrated a sufficient nexus between the challenged practices and the adverse outcomes for women to satisfy Rule 23(a). App. 77a-78a, 186a. Cases involving local decisions have long been addressed under the pattern or practice method of proof. Teamsters, 431 U.S. at 338, 342 n.24; Hazelwood, 433 U.S. at 301, 302.
3. The district court's commonality findings rested on extensive evidence of excessive subjectivity in personnel decisions, guided by a strong corporate culture infused with sexual stereotyping; centralized oversight of decision-making; robust statistical evidence of gender disparities caused by discrimination; and anecdotal evidence of gender bias. App. 226a. The court evaluated the record as a whole and made findings that turned significantly on company documents and testimony, in addition to “statistics, anecdotes and social science.”
4. Wal-Mart seeks to impose a host of “heightened” certification requirements, applicable only to Title VII cases challenging a pattern or practice of discrimination facilitated by a policy of excessively subjective decision-making. To satisfy Rule 23, civil rights plaintiffs would bear the burden of proving the merits of their claims to a degree that exceeds the standard required to demonstrate liability under Title VII. Wal-Mart's argument is at odds with the language of Rule 23 and Title VII and this Court's decision in Falcon. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 161 (1982).
5. Wal-Mart seeks to impose per se rules on the kinds of evidence upon which a district court may rely in finding commonality satisfied under Rule 23(a)(2).
a. Statistics - Wal-Mart argues that, as a matter of law, only statistical proof disaggregated to the smallest possible unit may support commonality. This view contradicts the pattern or practice theory and ignores the court's finding that managers above the store level make all promotion and management pay decisions and must approve all hourly pay decisions in excess of a minimal range.
Wal-Mart wrongly asserts that its statistical regressions were “unrebutted” and showed no statistically significant pay rate differences in most stores. Pet. Br. 7, 11, 24. In fact, its regressions were subdivided below “store level,” premised on a factual predicate so unreliable that the court struck it from the record, and thoroughly rebutted.

The district court credited plaintiffs' statistical analyses and found that they raised “an inference of company-wide discrimination in both pay and promotions.” App. 281a. It analyzed the parties' competing claims concerning statistical aggregation and concluded that plaintiffs' regional analysis raised common issues appropriate for class adjudication. App. 73a.
b. Anecdotal Evidence of Bias - The district court properly relied on 120 class member declarations to further support its commonality finding. They vividly confirmed the uniformity of pay and promotion policies, and the pervasiveness of sexual stereotypes within the company culture. They need not demonstrate claims of individual discrimination or a pattern or practice of discrimination to support commonality.
c. Social Science - The district court properly relied on the conclusions of plaintiffs' social science expert - that Wal-Mart's strong centralized common culture sustained uniformity of decision-making, that its highly subjective system was vulnerable to sexual stereotyping, and that its diversity policies failed to mitigate the effect of stereotyping - as additional evidence supporting its commonality finding. The court fully considered Wal-Mart's motion under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 ( 1993), and made findings sufficient to satisfy Daubert's admissibility threshold.
6. The district court made extensive findings to support its conclusion that the class satisfied the typicality and adequacy of representation requirements. Wal-Mart presents no legal argument, but instead asks the Court to revisit factual determinations made below.
7. Wal-Mart would eliminate the “pattern or practice” method of proof, requiring instead that systemic discrimination cases be litigated for both liability and remedies, individual-by-individual and store-by-store. Plaintiffs would be required to prove that “the motive for every single discretionary pay and promotion decision affecting every single class member was discriminatory.” Pet Br. 40. Wal-Mart claims a right to mount an individual defense to each class member's claim using Title VII's “mixed motive” provision, even though plaintiffs here do not rely on the mixed motive theory of discrimination. Despite unanimous circuit authority, Wal-Mart argues that back pay determinations could never be performed on a statistical basis, even where, as here, defendant's conduct and record-keeping would make individual determinations

unreliable.
8. Wal-Mart would restrict the application of Rule 23(b)(2) to cases seeking solely injunctive and corresponding declaratory relief. Its interpretation is inconsistent with the text of the Rule, the Advisory Committee Notes, and the decisions of every circuit court to address the question. The Advisory Committee drafted Rule 23(b)(2) with the intention of permitting certification unless final relief “relates exclusively or predominantly to money damages.” Fed. R. Civ. P. 23 Advisory Committee's Note (1966).
a. Back pay, when accompanying claims for injunctive relief, is consistent with (b)(2) certification, as every circuit court addressing the issue has concluded. Such claims are integral to Title VII's equitable remedies, can be objectively determined, and arise out of the same conduct generally applicable to the class that supports injunctive relief. Similarly, total back pay will result from the same factor that makes injunctive relief substantial - the size of the affected class.
b. Wal-Mart's contention that monetary claims must predominate because the former employee class members lack standing to seek injunctive relief confuses standing with the test for eligibility for relief under Rule 23(b)(2). Wal-Mart's one-sided calculus discounts the benefits of injunctive relief to current, future, and returning employees. Wal-Mart's rule would require a continual re-examination of the certification decision with normal employee turnover.
c. This Court need not resolve whether punitive damages may be certified under Rule 23(b)(2) because the Ninth Circuit vacated and remanded that claim. There is no support in Rule 23 f or Wal-Mart's claim that punitive damages, which focus on defendant's conduct rather than individual harm, may never be so certified.
ARGUMENT
Plaintiffs contend that Wal-Mart engaged in a pattern or practice of discrimination in violation of Title VII's prohibition on disparate treatment. 42 U.S.C. §2000e-2(a); Teamsters, 431 U.S. at 336-38. Wal-Mart's top management implemented and maintained its pay and promotion policies, even though they knew the system disadvantaged qualified female employees and perpetuated a corporate culture rife with gender stereotyping. As this Court has recognized, evidence of a policy pursued with knowledge of its adverse effect on a protected group supports a *10

finding of intentional discrimination. “[W]hen the adverse consequences of a law upon an identifiable group are as inevitable as the gender-based consequences [here], a strong inference that the adverse effects were desired can reasonably be drawn.” Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 n.25 (1979); see also Teamsters, 431 U.S. at 335 n.15.
Plaintiffs also challenge these subjective practices under the disparate impact theory of discrimination. 42 U.S.C. § 2000e-2(k); Watson, 487 U.S. at 989-91. They allege that the subjective pay and promotions policies, while neutral on their face, have disproportionately affected female employees and cannot be justified by business necessity. Wal-Mart's practices - far below the industry norms for corporate personnel practices - have resulted in statistically significant disparities in both pay and promotion for women.
Plaintiffs seek injunctive relief as well as back pay and punitive damages. They do not seek compensatory damages or retroactive promotions. App. 5a. Class Cert. Hearing Tr. at 68-70, 92, Dkt. 618 ( N.D. Cal. Sept. 24, 2003).
I. THE DISTRICT COURT PROPERLY EXERCISED ITS DISCRETION WHEN IT DETERMINED THAT RULE 23(a) REQUIREMENTS HAD BEEN SATISFIED
After extensive discovery, including over 200 depositions, production of more than a million pages *11 of documents, and electronic personnel data, plaintiffs assembled a massive record to support class certification. The district court issued a detailed 84-page class certification opinion as well as a lengthy opinion addressing challenges to the parties' expert evidence. App. 162a-283a; Pet. Opp. Add. 4-15. In reaching its conclusion, the district court weighed the evidence, as necessary, to determine whether the elements of Rule 23 had been satisfied, even when Rule 23 elements overlapped with the merits. App. 52a n.20, 65a; In re Initial Pub. Offerings Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006); see, e.g., App. 191a (rejecting claim that managers operate stores independently); App. 226a (finding evidence “raises an inference that Wal-Mart engages in discriminatory practices”). The district court's interlocutory decision to certify the class is subject to review for abuse of discretion and its findings are entitled to deference, unless “clearly erroneous.” Cooter & Gell v. Hartmarx, 496 U.S. 384, 400-01 (1990); In re Initial Pub. Offerings, 471 F.3d at 40-41. It properly exercised its discretion in finding Rule 23(a) satisfied.

Wal-Mart asks this Court to start from scratch. It audaciously claims that the district court's extensive factual “ ‘findings' are entitled to no deference.” Pet. Br. 18 n.2. It raises a host of objections to the district court's findings, based upon a s elective description of the evidence, and invites the Court to decide anew whether each of the Rule 23(a) elements has been satisfied. That is not the proper role for this *12Court. Cooter & Gell, 496 U.S. at 400-01; Califano v. Yamasaki, 442 U.S. 682, 703 (1979).
A. The District Court Properly Held that Plaintiffs Demonstrated Common Questions of Law or Fact
Rule 23(a)(2) requires that plaintiffs demonstrate there are “questions of law or fact common to the class.” “The threshold of ‘commonality’ is not high,” Jenkins v. Raymark Indus., 782 F.2d 468, 472 (5th Cir. 1986) (citation omitted); 1 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 3:10 n.9 (4th ed. 2002) (commonality “is easily met in most cases”), and contrasts with the “far more demanding” predominance showing required by Rule 23(b)(3). Amchem Products v. Windsor, 521 U.S. 591, 623-24 (1997).
At the certification stage, “the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974) (quoting Miller v. Mackey Int'l, 452 F.2d 424, 427 (5th Cir. 1971)). As the Ninth Circuit observed below, Rule 23(a)(2), by its terms, requires plaintiffs to demonstrate questions of law or fact, not to answer them. App. 36a, 40a; see Fed. R. Civ. P. 23 Advisory Committee's Note (2003) (“an evaluation of the probable outcome on the merits is not properly part of the certification decision”); cf. Schleicher v. Wendt, 618 F.3d 679, 686 (7th Cir. 2010) (“We do not think it *13 appropriate for the judiciary to make its own … adjustments by reinterpreting Rule 23 to make likely success on the merits essential to class certification.…”) (Easterbrook, J.).
1. A System of Subjective Decision-Making Can Constitute a Common Employment Practice
Wal-Mart's principal objection is that company-wide certification was improper because it contends all pay and promotion decisions are made at the store level where managers have wide-ranging discretion and, as such, plaintiffs failed to identify a common policy or practice sufficient for either Title VII or Rule 23(a).

Wal-Mart is wrong. This Court established the standards of proof for pattern or practice cases in Teamsters, in which managers at 51 different terminals made hiring and promotion decisions purportedly by choosing the “best qualified.” Teamsters, 431 U.S. at 336, 338, 342 n.24. This Court has held that a policy of subjective decision-making processes that leaves unguided discretion to managers is an employment practice subject to challenge under Title VII where, as here, it has resulted in a pattern of discrimination against women. Hazelwood, 433 U.S. at 301-302; Falcon, 457 U.S. at 159 n.15; Watson, 487 U.S. at 989-91. This Court recognized that subjective criteria, while not themselves unlawful, can be a conduit for biased decision-making. Watson, 487 U.S. at 989-91. *14 Cognizant of this potential threat to equal employment opportunity, federal courts have for more than three decades certified challenges to subjective employment practices under both disparate treatment and disparate impact theories. See App. 79a (citing cases); Brown v. Nucor Corp., 576 F.3d 149, 150, 153, 157 (4th Cir. 2009); McClain v. Lufkin Indus., Inc., 519 F.3d 264, 272 (5th Cir. 2008).
Wal-Mart repeatedly asserts that the Ninth Circuit observed that plaintiffs were unable to identify “a specific discriminatory policy promulgated by Wal-Mart.” Pet. Br. 6, 20, 39. Wal-Mart quotes this language from the opinion entirely out of context. The quotation, in its entirety, reads: While a jury may ultimately agree with Wal-Mart that, in the absence of a s pecific discriminatory policy promulgated by Wal-Mart, it is not more likely than not, based solely on Dr. Bielby's analysis, that Wal-Mart engaged in actual gender discrimination, that question must be left to the merits stage of the litigation (and presumably will not have to be decided as there will be other evidence).
App. 59a.
2. The Evidence Supports the Finding that Wal-Mart's Practices Raised Common Questions
After weighing all the evidence, the district court concluded that plaintiffs had “exceeded” their burden *15 of establishing commonality and had demonstrated that Wal-Mart's company-wide policy of subjective decision-making, within a co nsistent compensation and promotion structure, raised questions of fact and law common to the class. App. 226a. Those common questions include, for example: 1) does Wal-Mart have a largely subjective compensation and promotion system? App. 173a-174a; 2) does that system result in lower pay and fewer promotions

for women? App. 199a, 225a; 3) does Wal-Mart's strong corporate culture contribute to discrimination against women in pay and promotion? App. 186a; 4) which statistical analysis most accurately measures the disparities between male and female employees? App. 211a-212a; 5) was Wal-Mart's senior management aware that its subjective personnel system was resulting in adverse outcomes for women? and, 6) can Wal-Mart's subjective personnel system be justified as a “business necessity” and, if so, were there “less discriminatory alternatives”?
The district court's findings were based on an enormous record, including testimony from senior management and internal company documents - vastly more than Wal-Mart's rhetorical reduction (“sociology, statistics and anecdotes”). Pet. Br. 23. Those findings are summarized below.
Uniform Structure and Central Control - The district court found Wal-Mart stores are operated “with a high degree of store-to-store uniformity” and centralized control. App. 190a. “[T]he personnel structure within each store operates in a basically similar *16 fashion.…” App. 174a-175a. “[E]ach individual store is subject to oversight from the company's Home Office” that includes “a very advanced information technology system which allows managers in the Home Office to monitor the operations in each of its retail stores on a cl ose and constant basis.” App. 190a, 192a; J.A. 529a. Wal-Mart has a far higher concentration of its regional and senior management based in its Home Office than its competitors do, further confirming its unusually centralized nature. App. 191a n.17.
The district court found that Wal-Mart's unique culture “promotes and sustains uniformity of operational and personnel practices,” and “guide[s] managers in the exercise of their discretion.” App. 188a, 192a. It found “no genuine dispute that Wal-Mart has carefully constructed and actively fosters a s trong and distinctive, centrally controlled, corporate culture.” App. 188a. The court noted that culture is an integral part of all management training programs. App. 188a-189a. Wal-Mart's practice of “promoting from within” means that “the culture lessons learned by junior-level employees contribute to building a foundation of common understanding and practice among the management team.” App. 189a. Further, the company regularly moves store-level managers across stores and districts, and thereby “ensure[s] that a uniform Wal-Mart Way culture operates consistently throughout all stores.” App. 189a-190a. Plaintiffs offered evidence that Wal-Mart “cultivates *17 and maintains a strong corporate culture

which includes gender stereotyping.” App. 173a.
The district court expressly rejected Wal-Mart's factual assertions that “each of its stores is a virtual ‘main street’ of stores within a store, all run by independent managers” and that “each division of stores has its own unique hierarchical structure.” App. 191a.
Uniform Departments and J obs - The court found that stores had similar jobs categories and descriptions. App. 175a. While there are several dozen departments within each store, most hourly workers fall within five job positions: Support Manager, Department Manager, Cashiers, Sales Associates and Stockers. App. 174a-176a; J.A. 482a. Employees are assigned and moved among departments frequently and pay policies make no distinction by department. R.A. 23-24;[FN1] J.A. 1402a. There are no minimum or preferred education or experience requirements for any hourly job. J.A. 373a.
FN1. Five documents are attached and designated as Respondent's Appendix (“R.A.”).
Uniformity of Promotion Policies and Practices - Regional and district managers, who are mostly male, make all promotion decisions for all store management positions. App. 180a-182a; J.A. 481a; J.A. 1370a-1373a. The district court found that “[t]he subjectivity in promotion decisions occurs in two fundamental ways: (a) a largely subjective selection *18 practice hindered by only minimal objective criteria, combined with (b) a failure to post a large proportion of promotional opportunities.” App. 180a. As a result, “class members had no ability to apply for, or otherwise formally express their interest in, openings as they arose” and “[m]anagers did not have to consider all interested and qualified candidates, thus further intensifying the subjective nature of the promotion process.” App. 182a-183a. More than a year after this case was filed, a Senior Vice President admitted that there was nothing at Wal-Mart that would explain to “an hourly associate how to get promoted.” R.A. 41.
Uniformity of Compensation Policies and Practices - “All hourly employees at every Wal-Mart store are compensated pursuant to the same general pay structure.” App. 176a. The Home Office establishes minimum starting rates for each hourly job in the retail stores. Id. While store managers are granted substantial discretion in making hourly pay decisions, any pay increase above a cer tain percentage is automatically reported to higher management and requires special approval. App. 177a.

The Home Office sets broad pay ranges for each in-store salaried position, but pay rates are set within these ranges “primarily by District Managers (the first level in the management hierarchy above Store Managers) and their superiors, the [Home Office-based] Regional Managers.” App. 178a. For both hourly and salaried compensation policies and practices, the district court found that there “is significant uniformity across stores, and that Defendant's *19 policies all contain a common feature of subjectivity.” App. 180a.
Gender Stereotyping - Relying on a broad range of evidence, the district court found “significant evidence” of “gender stereotyping.” App. 226a. That evidence included testimony from plaintiffs' expert, Dr. Bielby, App. 196a, and abundant examples of stereotypes adverse to women, starting at the highest levels of management.
As far back as 1992, founder Sam Walton conceded that Wal-Mart's “old way” of requiring its managers to move frequently “put good, smart women at a disadvantage,” and was unnecessary, J.A. 368a-369a, a view echoed by female managers. J.A. 414a, 417a. This policy nonetheless remained in effect after this action was filed. J.A. 220a-221a, 419a.
At Home Office executive meetings, senior officers for Sam's Club often referred to female store employees as “Janie Qs” and “girls.” J.A. 303a-306a. The most senior human resource official saw nothing wrong with district managers holding their management meetings at Hooters restaurants. J.A. 232a. Numerous Wal-Mart managers admitted that they regularly go to strip clubs when they attend company management meetings. See, e.g., Riggs Dep. at 196:1, Ex. 40, Dkt. 100 (N.D. Cal. Apr. 28, 2003); J. Brown Dep. at 185:8-12, Ex. 41, Dkt. 100; Seaman Dep. at 321:1-3, Ex. 42, Dkt. 100; Sherman Dep. at 259:10-23, Ex. 43, Dkt. 100. Female store managers were *20 required to attend these meetings at Hooters and strip clubs as part of the job. J. A. 924a-933a.
The company communicated stereotyped views of women to store managers who attended mandatory training at the Walton Institute in Bentonville. Participants were told that the reason so few women have reached senior management at Wal-Mart was because “men have been more aggressive in achieving those levels of responsibility …” R.A. 44.
A Women in Leadership Group identified a number of problems afflicting women employees, including that

“[s]tereotypes limit opportunities for women,” “[c]areer decisions are made for associates based on gender,” and “[m]en's informal network overlooks women.” R.A. 48. In 1998, a consultant retained by Wal-Mart advised the company that a “glass ceiling is perceived by many women” at Wal-Mart and “some [district managers] … do not seem personally comfortable with women in leadership roles.” R.A. 63-64.
One former Wal-Mart Vice President described the company's diversity efforts as “lip service,” J.A. 302a, a conclusion confirmed by a co mprehensive analysis of Wal-Mart's diversity programs. App. 194a-195a.
The district court cited class member testimony about the common stereotypes prevalent throughout Wal-Mart. App. 225a-226a; see also J.A. 754a (female assistant manager told repeatedly by store manager that retail is “tough” and not “appropriate” *21 for women); J.A. 1188a-1189a (male store manager said “[m]en are here to make a career and women aren't. Retail is for housewives who just need to earn extra money”); J.A. 931a (district manager told female store manager that she should not be running a Wal-Mart store and “needed to be home raising [her] daughter”); J.A. 1001a (store manager said male associate received larger raise because he had “a family to support”).
Unequal Promotional Opportunities - The district court found that “roughly 65 pe rcent of hourly employees are women, while roughly 33 pe rcent of management employees are women.” App. 176a. Women hold only 14% of Store Manager positions yet disproportionately occupy 80 to 90% of the hourly supervisory positions. J.A. 479a (chart). When Wal-Mart's proportion of women in management was compared to that of its 20 largest competitors, 80% of its stores had significantly fewer female managers. App. 223a-225a. The district court credited plaintiffs' proof that, after controlling for relevant factors, “a statistically significant shortfall of women [were] being promoted into each of the in-store management classifications over the entire class period.” This shortfall was “consistent in nearly every geographic region at Wal-Mart.” App. 212a. Women also consistently took longer than men to advance to management positions. App. 198a, 214a; J.A. 484a-485a (average 4.4 years for women versus 2.9 years for men to Assistant Manager). These differences existed even though female employees at Wal-Mart generally *22 have more seniority and better performance ratings than male employees. J.A. 483a-485a.
The record shows that Wal-Mart executives were long

aware of these promotion shortfalls and failed to remedy them. Executive Vice President Coleman Peterson made regular presentations to top management about the company's workforce. Shortly before this case was filed, Peterson informed management that, based upon the company's own internal benchmarking, “Wal-Mart's women in management percent … is significantly behind several of the other retailers reporting … [Wal-Mart] trails both the retail industry … and workforce averages.” J.A. 408a. This report, like others that Peterson made to management and the Board, highlighted the troubling lack of women in the company's management jobs. J.A. 397a-404a, 410a, 413a. As Peterson candidly expressed in another memo about the treatment of women and minorities, “[w]e're behind the rest of the world.” J.A. 405a. Until December 2000, Wal-Mart's Executive Committee was entirely male. J.A. 205a-208a.
Unequal Pay - Plaintiffs' statistical regressions for hourly and salaried employees showed that in every one of Wal-Mart's 41 regions women were paid significantly less than men, and this pay gap increased each year. J.A. 518a-519a. This pattern was consistent for all store classifications even when seniority, turnover, store, job performance, job position, part-time or full-time status, and other relevant factors were taken into account. App. 200a, 209a. *23 After careful consideration of the parties' competing analyses, the district court concluded that plaintiffs' statistical analysis raises “an inference of company-wide discrimination in both pay and promotions.” App. 281a.
3. Neither Rule 23 nor Title VII Imposes a Heightened Commonality Standard for Challenges to Subjective Cri-
teria
To satisfy commonality, plaintiffs must demonstrate that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2).
Wal-Mart proposes a long list of additional requirements to these simple terms. These “add-ons” are not found in either the text of Rule 23 or Title VII. Indeed, they would make satisfying Rule 23(a)(2) far more exacting than even proving liability for a pattern or practice claim. According to Wal-Mart, Title VII plaintiffs must demonstrate: • that there is “significant proof” of discrimination; Pet. Br. 19-20; • “a policy that is entirely subjective;” Pet. Br. 20-21; and, • the policy is a “general policy of discrimination” that is itself unlawful; Pet. Br. 20; • the policy was implemented “in a discriminatory fashion

common to every single female employee,” Pet. Br. 20 *24 (emphasis added), and “the motive for every single discretionary pay and promotion decision affecting every single class member was discriminatory.” Pet. Br. 40.
This Court has rejected the notion that Rule 23 includes special, unwritten rules for certain cases. “Rule 23 pr ovides a one-size-fits-all formula for deciding the class-action question.” Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., ___ U.S. ___, 130 S. Ct. 1431, 1437 (2010). Nothing in Rule 23 or Title VII imposes such heightened certification standards for employment discrimination cases challenging a policy providing for subjective personnel decisions. Wal-Mart mistakenly relies on a footnote from Falcon, 457 U.S. at 159 n.15, for these enhanced burdens.
In Falcon, this Court addressed the application of Rule 23(a) requirements to a proposed Title VII “across the board” class action that sought to include job applicants denied hire and incumbent employees denied promotions. In support of class certification, the sole named plaintiff offered nothing more than his own personal claim of promotion discrimination and failed to make “any specific presentation identifying the questions of law or fact that were common” to himself and the proposed class. Id. at 158. The Court held that district courts may not presume compliance with Rule 23 from a single allegation of discrimination. Instead, they must conduct a “rigorous analysis” to ensure that each Rule 23 requirement is satisfied. *25 Id. at 161. The Court concluded that plaintiff's claim was insufficient to “bridge the gap” between an individual claim of promotion discrimination and a class claim challenging a pattern of discrimination. Id. at 157-58. Here, plaintiffs went far beyond presenting individual claims to address all elements of Rule 23. See, e.g., App. 51a-53a, 188a, 192a, 226a, 231a n.43, 232a-234a. Nothing in Falcon supports Wal-Mart's claim that pattern or practice cases are subject to unique requirements under Rule 23.
Significant Proof - Wal-Mart asserts that plaintiffs did not satisfy Rule 23(a)(2) because they failed to adduce “[s]ignificant proof that [the] employer operated under a general policy of discrimination” implemented through “entirely subjective decisionmaking processes.” Pet. Br. 19. It derives this standard from an incomplete quotation of one sentence in a footnote from Falcon. Significant proof that an employer operated under a general policy of discrimination conceivably could justify a class of both applicants and employees if the discrimination manifested itself in hiring and promotion practices in

the same general fashion, such as through entirely subjective decisionmaking processes.
Falcon, 457 U.S. at 159 n.15 (emphasis added).
The Falcon footnote, read in context, presents a h ypothetical scenario under which applicants and employees could be included within the same certified *26 class. In other words, in circumstances where plaintiffs challenge “two distinct processes” - hiring and promotion - they must show significant proof of “a common policy alleged to be discriminatory” to unite applicants and employees in a single class. App. 42a-43a; Staton v. Boeing Co., 327 F.3d 938, 955 (9th Cir. 2003); Griffin v. Dugger, 823 F.2d 1476, 1486-87 (11th Cir. 1987). The language was not intended to create a new requirement that plaintiffs prove intentional discrimination at the certification stage. App. 43a. Moreover, this case is not, like Falcon, an “across the board” class where one class representative who has experienced only one form of discriminatory practice seeks to challenge a broad range of employment practices. Falcon, 457 U.S. at 153. Here, the named plaintiffs, current and former employees, challenge only discrimination in pay and promotion, which each has suffered.
The heightened standard Wal-Mart would impose on challenges to subjective decision-making finds no support in the text of Rule 23(a)(2). It also runs afoul of the central holding of Falcon that there are no special class certification rules for particular kinds of cases. Falcon, 457 U.S. at 161 (“a Title VII class action, like any other class action, may only be certified if … the prerequisites of Rule 23(a) have been satisfied.”) (emphasis added). Nor does Title VII suggest a heightened standard for challenges to subjective decision-making practices. 42 U.S.C. § 2000e-2(a) & (k). Where the statutory language of Title VII does not indicate a cl ear intent by Congress *27 to impose a heightened evidentiary standard, this Court has declined to do so. Desert Palace, Inc. v. Costa, 539 U.S. 90, 98-101 (2003).
To require that plaintiffs adduce “significant proof” of discrimination where subjective practices are challenged also conflates the merits with the Rule 23(a) certification inquiry. App. 44a. The court's role at certification is limited to determination of whether common questions exist, not to answer them.
But, even if a heightened standard were to be applied, Wal-Mart's proposed “significant proof” standard was met here. The district court expressly found, in more than 24

pages of findings, that plaintiffs had offered “significant evidence” that raised an inference of classwide discrimination in the pay and promotion practices. App. 226a. These findings amply meet any new heightened showing of “significant proof” of discrimination. App. 46a-47a.
Entirely Subjective - Wal-Mart, again citing the Falcon footnote, argues that plaintiffs may only challenge a practice of subjective decision-making if they can establish that the system is “entirely subjective,” an argument not raised below. Pet. Br. 20-21; App. 174a (parties agree that decisions are “largely subjective”). This argument is also at odds with the text of Rule 23(a)(2) and with Title VII. Wal-Mart would create a nonsensical rule that addition of one objective criterion (e.g., being of legal age) to an otherwise subjective process would insulate employers from liability. In Watson, this Court rejected just *28 such an assertion: “However one might distinguish ‘subjective’ from ‘objective’ criteria … selection systems that combine both types would generally have to be considered subjective in nature.” Watson, 487 U.S. at 989-91; see also Griffin, 823 F.2d at 1486-87. The 1991 amendments to Title VII, which codified the adverse impact standard, make no distinction between an “employment practice” that is objective or subjective. See 42 U.S.C. § 2000e-2(k). Here, the district court found that subjectivity was a common feature of all challenged pay and promotion policies, satisfying commonality under Rule 23(a). App. 180a-183a.
General Policy of Discrimination - In its final misapprehension of the Falcon footnote, Wal-Mart claims that plaintiffs can only satisfy commonality by challenging a “general policy of discrimination” that must itself be unlawful. Pet. Br. 22. Title VII does not require that plaintiffs identify a facially discriminatory policy. Disparate impact claims, by definition, challenge “employment practices” that are “fair in form, but discriminatory in operation.” Lewis v. City of Chicago, ___ U.S. ___, 130 S. Ct. 2191, 2197 (2010) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)); 42 U.S.C. § 2 000e-2(k). Disparate treatment claims may challenge employment policies or practices, including a “policy of leaving promotion decisions to the unchecked discretion of lower level supervisors.” Watson, 487 U.S. at 990. The existence and nature of the challenged practice may be proven through direct or
circumstantial evidence. *29Desert Palace, 539 U.S. at 100; United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983).
As a co rollary, Wal-Mart asserts that plaintiffs cannot demonstrate a “general policy of discrimination” since

Wal-Mart has a written anti-discrimination policy. Pet. Br. 19-20. But an employer cannot insulate itself from liability for discrimination simply by promulgating a written anti-discrimination policy. See, e.g., EEOC v. Wal-Mart Stores, Inc., 187 F.3d 1241, 1248 (10th Cir. 1999).
Proof that Every Class Member Was Injured - Finally, Wal-Mart asserts, without authority, that plaintiffs must demonstrate that its policies operated “in a discriminatory fashion common to every single female employee.” Pet. Br. 20 (emphasis added). Rule 23(a)(2) imposes no such requirement. Forbush v. J.C. Penney Co., 994 F.2d 1101, 1105 (5th Cir. 1993); DG ex rel. Stricklin v. Devaughn, 594 F.3d 1188, 1198 (10th Cir. 2010); cf. Kohen v. Pacific Inv. Mgmt. Co., LLC, 571 F.3d 672, 676 (7th Cir. 2009) (Posner, J.).
A requirement that plaintiffs prove a policy has discriminated against every single class member to obtain certification would be far more demanding than the standard for proving liability, which requires a showing that discrimination was Wal-Mart's “regular rather than … unusual practice.” Teamsters, 431 U.S. at 336-37. Were absolute uniformity required, an employer could defeat certification in every case by sparing just one class member or department from an *30 otherwise uniform and discriminatory policy. Cf. Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir. 1998). The language of Rule 23(a)(2) requires evidence of “common” questions, not that the challenged practices raise “identical” or “universal” questions. See also Fed. R. Civ. P. 23(b)(2) Advisory Committee's Note (1966) (“[a]ction or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.”) (emphasis added).
4. Rule 23(a)(2) Does Not Restrict the Evidence that May Be Proferred to Support the Presence of Common Ques-
tions
Wal-Mart takes a s imilar approach to the evidence that plaintiffs may use to demonstrate the presence of common questions of law or fact, ignoring entire categories of evidence and seeking to impose restrictions not found in the Federal Rules of Evidence, Rule 23 or Title VII.
Statistics - Wal-Mart argues that the only statistical proof that can support commonality is analysis disaggregated to the store-by-store level. Wal-Mart's assertion hinges on its contention - unsupported by the record - that relevant de-

cisions are made there. It entirely ignores the central role its senior management plays in making promotion and management *31 pay decisions and reviewing hourly pay decisions. Its basic premise is flawed because, in a pattern or practice case, the relevant question is whether there is a pattern of discriminatory decision-making, not whether the decisions of individual managers are discriminatory. Teamsters, 431 U.S. at 336. Subdividing a company into ever smaller units “to the point where it [ is] difficult to demonstrate statistical significance” can mask a pattern of discrimination, while aggregated data may more likely reveal one. Capaci v. Katz & Besthoff, 711 F.2d 647, 654 (5th Cir. 1983); Segar v. Smith, 738 F.2d 1249, 1286 (D.C. Cir. 1984) (disapproving statistical analysis that “repeatedly disaggregate[ed] until groups were too small to generate any statistically significant evidence of discrimination”).
Plaintiffs' statistician prepared hourly pay regressions at the regional level, because of the scope of Wal-Mart's policies and decision-making. He relied upon corporate policies under which the subjective decisions were made, the oversight of pay decisions by district and regional managers, company-wide training and culture, and the frequent movement of store managers among districts and regions. App. 202a-204a; R.A. 18-26, 36-38. To account for any differences at the store level, these regressions included a variable for “store” to capture any difference in pay rates and staffing. App. 209a. The district court found this approach to be a “reasonable means of conducting a statistical analysis.” App. 208a.
*32 In contrast, Wal-Mart's expert offered a h ighly atomized analysis, which sub-divided the workforce even within stores into small sub-units that obscured any pattern of discriminatory decision-making and was far below the level of any relevant decisionmaker in this case. Rather than a store-level analysis, each store was broken into at least three separate sub-parts for analysis - grocery, non-grocery and specialty departments - resulting in over 7,600 regressions. These artificial divisions were further segmented by 21 v ariables in the regressions, including department, which reduced the statistical unit of analysis. R.A. 19-20. This wholly artificial model, which tracks neither Wal-Mart pay policy nor decision-making, offered two advantages to Wal-Mart. It resulted in regressions with too few employees to yield statistically significant results, R.A. 19-20, and obscured Wal-Mart's broader discriminatory pay pattern. R.A. 24.
Nor is Wal-Mart correct in asserting that its expert's con-

clusion - that “90% of the stores” had no statistically significant gender pay differences - was “unrebutted.” Pet. Br. 7, 11. Plaintiffs' expert comprehensively rebutted Wal-Mart's expert's methodology and conclusions. R.A. 19-39. Even more significantly, the district court struck the central justification for analyzing pay by store - a survey conducted by defense counsel - after Wal-Mart's expert admitted she could not vouch for its reliability. App. 203a-204a; Pet. Opp. Add. 17-23. Yet even these analyses, flawed *33 as they were, showed an overall adverse impact. J.A. 1663a-1665a.
Wal-Mart faults the district court for failing to resolve conclusively which statistical model was more persuasive. Pet. Br. 25. In fact, the district court devoted 18 pages of analysis to the competing models and “weighed evidence and made findings” in its Rule 23 determinations. App. 49a. It “did not shy away” from issues overlapping with the merits “to the extent necessary to satisfy itself … that Plaintiffs raised common questions.” App. 65a. For example, the court rigorously analyzed why plaintiffs' “statistical method best reflected the alleged discrimination” in crediting plaintiffs' regional analysis over defendant's challenges. App. 66a-67a, 71a, 204a. In evaluating each side's promotion analysis, the court determined that plaintiffs have “shown” reasons to accept their statistics and concluded that defendant's “assertion that its approach is necessarily superior does not withstand scrutiny.” App. 73a, 222a.
The circuits agree that the district court must analyze the underlying factual and legal issues relevant to Rule 23, even if they overlap with the merits. App. 15a-22a. As the Ninth Circuit noted, “this does not mean a district court should put the actual resolution of the merits cart before the motion to dismiss, summary judgment, and trial horses.” Id. In a Title VII case where statistical proof will form the basis of both the certification showing and the merits, a determination of whether plaintiffs' statistics prove discrimination goes beyond Rule 23, which *34 requires only a finding of common questions. App. 36a.
Wal-Mart seeks to convert this fact-laden statistical dispute into a single legal issue. It argues that the appropriate level of statistical aggregation is a legal issue that must be resolved as part of the Rule 23 inquiry. Pet. Br. 26. It cites only this Court's decision in Wards Cove, which addressed neither statistical aggregation nor Rule 23 criteria. Wards Cove Packing Co., v. Antonio, 490 U.S. 642, 650-55 (1989), abrogated on other grounds by Civil Rights Act of 1991, Pub. L. No. 102-166, S. 1745, 105 Stat. 1071 (1991).

The question in Wards Cove was the proper definition of the qualified labor pool for evaluation of plaintiffs' claim of disparate impact in hiring. Id. at 650. That case provides no support for an inflexible standard on the proper level of statistical aggregation, divorced from the facts in the case, which would impermissibly straitjacket the Rule 23 inquiry in employment discrimination cases.
Anecdotal Evidence - This Court has observed that, in a Title VII pattern or practice case, anecdotal evidence “[brings] the cold numbers convincingly to light.” Teamsters, 431 U.S. at 339. At the Rule 23 stage, anecdotal declarations may be relevant to demonstrating the presence of common questions of law or fact. Brown, 576 F.3d at 153, 156-57.
Here, among the many types of evidence upon which the district court relied were “over a hundred declarations by designated class members showing *35 common subjective practices.” App. 186a. These remarkably similar accounts, from hourly and management level women in 30 different states, attest to the uniform and centralized control of operations, unequal pay for the same work, ever-shifting subjective criteria for promotion, and gender stereotyping. App. 186a; J.A. 420a (map of declarant locations); J.A. 586a, 607a-608a, 643a, 697a-698a, 707a-709a, 752a, 845a, 887a, 899a-900a, 1001a, 1019a, 1020a, 1079a, 1188a. They illustrate how a single corporate culture influences the way in which subjective pay and promotion decisions are made.
Wal-Mart suggests that courts may only credit such evidence if each declaration recounts “actionable claims of discrimination” and, together, they prove the existence of a “pattern or practice” of discrimination. Pet. Br. 31-32. Nothing in Rule 23 or Title VII provides any support for such a per se rule. Nor is there any basis for excluding declarations from former employees, as Wal-Mart implies by arbitrarily reducing of the number of declarations offered from 114 to 63. Pet. Br. 31. Probative evidence may come from a wide variety of percipient witnesses. Fed. R. Evid. 601; cf. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). It was well within the discretion of the trial court to rely on this evidence in finding Rule 23(a)(2) was satisfied.
Social Science - Plaintiffs' expert, Dr. Bielby, offered an opinion concerning the uniform and centralized nature of Wal-Mart's operations (“[c]entralized coordination, reinforced by a strong organizational *36 culture, creates and sustains uniformity in personnel policy and practice”), and

a separate opinion about the risks associated with its subjective personnel practices (“[s]ubjective and discretionary features of the company's personnel policy and practice make decisions about compensation and promotion vulnerable to gender bias.”). J.A. 525a. Dr. Bielby's conclusion that Wal-Mart's system increased the risk of gender stereotyping tended to show why, in the circumstances of this case, there was a co mmon question as to whether subjectivity was a “ready mechanism for discrimination.” J.A. 545a-546a.
Wal-Mart conflates these two opinions and mischaracterizes Bielby's hypothesis as stating “Wal-Mart may be ‘vulnerable’ to gender stereotyping because it … has a ‘strong corporate culture.’ ” Pet. Br. 29 (emphasis added). That is not what he said. Instead, Dr. Bielby concluded that the company's strong corporate culture, about which the district court itself made separate findings, “sustains uniformity in personnel policy and practice.” J.A. 525a.
Wal-Mart complains that Dr. Bielby failed to quantify how many employment decisions were the product of stereotyped thinking. Pet. Br. 28. In Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36, 255-56 (1989), abrogated on other grounds by Civil Rights Act of 1991, Pub. L. No. 102-166, S. 1745, 105 Stat. 1071 (1991), this Court endorsed the use of expert testimony regarding gender stereotyping in discrimination cases and did so even though that expert (like any credible expert) could not specify which *37 particular decisions were the product of stereotyping. Expert testimony need not provide quantifiable knowledge to be admissible. Fed. R. Evid. 702 (the “scientific … knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.”).
Wal-Mart moved to strike Dr. Bielby's opinions. The district court conducted a thorough assessment of Wal-Mart's arguments, “guided by Daubert,” and concluded that the opinions were “based on valid principles” and “sufficiently probative to assist the Court in evaluating the class certification requirements.” Pet. Opp. Add. 5-6. The Ninth Circuit found no abuse of discretion. App. 57a-58a & n.22. The Ninth Circuit opted not to reach the unresolved legal question whether a Daubert inquiry is required at the class certification stage as the district court had conducted an equivalent analysis. This Court need not reach the question either.
B. The District Court Properly Held that Plaintiffs Demonstrated Typicality

Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Typicality ensures that the class representatives share the issues common to other class members and tends to merge with commonality. Falcon, 457 U.S. at 158 n.13. The interests and claims of the named plaintiffs and class *38 members “need not be identical to satisfy typicality.” Stricklin, 594 F.3d at 1198.
Here, the six named plaintiffs are all current or former employees, who allege they were injured by the same challenged pay and promotion practices. App. 80a. Plaintiff Christine Kwapnoski repeatedly sought management promotions that went to less qualified men. Although she was assigned to supervise the receiving dock, her General Manager encouraged her “to doll up, to wear some makeup, and to dress a little better.” J.A. 1001a-1003a (internal quotations omitted). When she complained about a male co-worker receiving a larger raise, the same manager told her the male employee “had a family to support.” Id. Plaintiff Betty Dukes, who has worked for Wal-Mart since 1994, has been paid significantly less than men with less seniority performing similar work, and was passed over for several Support Manager promotions. J.A. 743a-749a; see J.A. 606a-624a (Arana); J.A. 827a-838a (Gunter); J.A. 1242a-1247a (Surgeson); and J.A. 1298a-1301a (Williamson).
Wal-Mart raises a n umber of factual issues about the claims and defenses relevant to the named plaintiffs. Pet. Br. 32-34. It selects snippets from their declarations and argues that those individual facts render them atypical. Pet. Br. 32-33. The district court thoroughly evaluated these same arguments and found that the named plaintiffs' claims were “reasonably co-extensive” with those of the class. App. 228a-231a. While it is plainly dissatisfied with these *39 findings, Wal-Mart presents no legal issue for this Court.
C. The District Court Properly Concluded that the Named Plaintiffs Were Adequate Representatives
Rule 23(a)(4) requires that the named plaintiffs “will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23. To satisfy adequacy, a “class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” Amchem, 521 U.S. at 625-26 (citation omitted). In such circumstances, class representatives are adequate because they are likely to “vigorously prosecute the interests of the class.” Beattie v. CenturyTel, Inc., 511 F.3d 554, 563 (6th Cir.

2007).
Wal-Mart contends that the mere possibility of disagreements among the class renders the named plaintiffs inadequate. But, to defeat adequacy, a “conflict must be fundamental” and “must go to the heart of the litigation.” Gunnells v. Healthplan Servs. Inc., 348 F.3d 417, 430-31 (4th Cir. 2003) (citation omitted); Denney v. Deutsche Bank AG, 443 F.3d 253, 268 (2d Cir. 2006). A conflict is not fundamental where the named plaintiffs share common objectives and factual and legal positions with the class. Ward v. Dixie Nat'l Life Ins. Co., 595 F.3d 164, 180 (4th Cir. 2010). Moreover, a conflict will not defeat adequacy *40 where it is “merely speculative or hypothetical.” Id. at 180 (citation omitted).
No inherent conflict exists just because a cl ass includes supervisory and non-supervisory employees; rather, adequacy depends upon the specific facts and claims presented. Staton, 327 F.3d at 958-59; Rossini v. Ogilvy & Mather, Inc., 798 F.2d 590, 595-96 (2d Cir. 1986). After a detailed factual inquiry, the district court concluded that no substantive conflict existed because: 1) the named plaintiffs held supervisory as well as non-supervisory positions; 2) the requested injunctive and monetary relief would be available throughout the class; and 3) Wal-Mart's alleged discriminatory policies affect supervisory and nonsupervisory employees alike. App. 232a-234a, 280a-81a.
In contesting this finding, Wal-Mart offers only speculation that the interests of supervisory and nonsupervisory employees are “diametrically opposed” without identifying any evidence of a substantive conflict. Pet. Br. 35; cf. Hansberry v. Lee, 311 U.S. 32, 43-44 (1940) (homeowner opposing racial covenant inadequately represented by named plaintiffs with diametrically opposed interest in enforcing it). Wal-Mart offers no evidence that class members endorsed the challenged gender bias or practices. “To deny class certification now, because of a p otential conflict of interest that may not become actual, would be premature.” Kohen, 571 F.3d at 680.
*41 Nor is there any merit to Wal-Mart's assertion, first raised on appeal, that the named plaintiffs are inadequate because they have not pursued class compensatory damages. Pet. Br. 35-36. Courts recognize that plaintiffs are permitted to press those claims that afford them the best chance of certification and success for the class. See, e.g., Wal-Mart Stores, Inc. v. Visa USA Inc., 396 F.3d 96, 113 (2d Cir. 2005) (“due process does not require that all class claims be pursued”); In re Universal Serv. Fund Tel. Bill-

ing Practices Litig., 219 F.R.D. 661, 668-70 (D. Kan. 2004). Likewise, Wal-Mart's assertion that non-victims might benefit from the case simply ignores the findings of the district court. See App. 166a n.4, 275a (actual victims can be identified and compensated).
D. Certification Has Not Altered Substantive Law
Wal-Mart argues that the certification order violates the Rules Enabling Act by relieving plaintiffs of the burden of proving their claims individually and depriving it o f the ability to present its defenses. Pet. Br. 38-44. The argument boils down to one false premise: that an employment discrimination class action may only be litigated decision-by-decision and class member-by-class member. This radical claim, never accepted by any court, is at odds with the plain language of Title VII and decades of employment discrimination class action jurisprudence.
*42 1. Discriminatory Intent May Be Proven Classwide
Wal-Mart asserts that Title VII requires plaintiffs to “prove that the motive for every single discretionary pay and promotion decision affecting every single class member was discriminatory.” Pet. Br. 40. It faults the district court for allegedly failing to “grapple” with the question of whether the element of intent requires individualized proof of intent for each manager at each facility.
Plaintiffs' disparate impact claim requires no proof of intent. Lewis, 130 S. Ct. at 2199; Watson, 487 U.S. at 990-91. As for plaintiffs' disparate treatment claim, Wal-Mart ignores the “crucial difference between an individual's claim of discrimination and a cl ass action alleging a general pattern or practice of discrimination.…” Cooper v. Fed. Reserve Bank, 467 U.S. 867, 876 (1984). The focus in a pattern or practice case is not on individual employment decisions, “but on a pattern of discriminatory decision-making.” Teamsters, 431 U.S. at 360 n.46. Plaintiffs must demonstrate that the discrimination was the employer's “standard operating procedure the regular rather than the unusual practice.” Id. at 336; Cooper, 467 U.S. at 875-76, n.9 (Teamsters standards apply to private class actions). A finding of an unlawful pattern or practice, “without any further evidence” supports the issuance of prospective relief and creates a p resumption that every member of the class is entitled to relief. Teamsters, 431 U.S. at 360-62. And the pattern or practice method of proof, in which *43 intent can be inferred from, among other evidence, significant statistical disparities, is consistent with this Court's consideration of proof of intent under the

most demanding standards. Feeney, 442 U.S. at 279 n.25; Teamsters, 431 U.S. at 335 n.15, 339 & n.20.
The application of “pattern or practice” theory applies equally to single and multi-facility cases. See, e.g., Teamsters, 431 U.S. at 328, 329 n.2 (challenging “nationwide operations” at 51 terminals in 26 states); Bazemore v. Friday, 478 U.S. 385, 389, 405-06 & n.17 (1986); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291-92 (2d Cir. 1999) (certifying class of all African Americans employed throughout commuter railroad), disagreed with on other grounds by In re Initial Pub. Offerings, 471 F.3d at 39-42; Staton, 327 F.3d at 956; see also Califano, 442 U.S. at 702.
Wal-Mart relies on Hohider v. UPS, Inc., 574 F.3d 169, 184 (3d Cir. 2009), which expressly distinguished requirements for proof of liability in an ADA case, at issue there, from pattern-or-practice cases under Title VII. Id. at 184-85.
2. Mixed Motive Defense Does Not Apply to Plaintiffs' Claims
Wal-Mart argues that 42 U.S.C. § 2000e-5(g)(2)(A), added to Title VII by the Civil Rights Act of 1991 to address “mixed motive” claims, guarantees it the right to present a “mixed motive” defense to each class member's claim. Wal-Mart makes this claim even though plaintiffs in this case have never alleged *44 a mixed motive claim, and Wal-Mart never pled an affirmative defense to one. J.A. 47a-80a, 100a-103a.
Title VII provides distinct methods of proving discrimination: plaintiffs may establish intentional discrimination either by proof of disparate treatment or by the “mixed motive” provisions of Title VII. Compare 42 U.S.C. § 2000e-2(a) with § 2000e-2(m). Plaintiffs may also avail themselves of the disparate impact theory to prove a violation of Title VII. 42 U.S.C. § 2000e-2(k).
The text of the mixed motive provisions make clear that it is an alternative theory of liability. 42 U.S.C. § 2000e-2(m) (“Except as otherwise provided in this subchapter, an unlawful employment practice is established.…”). See Desert Palace, 539 U.S. at 94 (“The first [provision] establishes an alternative for proving that an ‘unlawful employment practice’ has occurred”) (citation omitted). Its companion provision, section 2000e-5(g)(2)(B), permits an employer to limit remedies if it proves that it would have taken the same action in the absence of the impermissible factor, but

only “[o]n a claim in which an individual proves a violation under section 2000e-2(m) of this title.…”
A mixed motive defense may not be used to rebut a single motive disparate treatment claim. Fogg v. Gonzales, 492 F.3d 447, 453-54 (D.C. Cir. 2007). As this Court observed last Term, Title VII's methods of proof are not “coextensive.” Lewis, 130 S. Ct. at 2199 *45 (defense to disparate treatment claim inapplicable to disparate impact claim). Thus, where plaintiffs have not elected to use the “mixed motive” method of proof, Wal-Mart may not defend on this basis. Finally, Wal-Mart's mixed motive argument has no application to plaintiffs' disparate impact claim, which requires no proof of intent.
3. Individual Stage II Trials Are Not Required
Wal-Mart claims the right to individual class member trials, citing language from Teamsters, in which this Court articulated the standards for bifurcated litigation of Title VII pattern-or-practice cases. Pet. Br. 41-42. Teamsters noted that, after a liability determination, “additional proceedings” will “usually” be conducted. Teamsters, 431 U.S. at 361. No court has read this language to require individualized hearings in every case. Instead, Teamsters vested trial courts with broad discretion to “fashion such relief as the particular circumstances of a cas e may require to effect restitution.” Id. at 364 (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 764 (1976)).
Where the defendant's practices make it impossible to recreate the employment decisions that would have been made absent discrimination, individual Stage II remedies hearings may be inappropriate, as the circuits have unanimously held. See McClain, 519 F.3d at 280-81; Pitre v. W. Elec. Co., 843 F.2d 1262, 1274-75 (10th Cir. 1988); Segar, 738 F.2d at 1289-91; *46 Domingo v. New England Fish Co., 727 F.2d 1429, 1444-45 (9th Cir. 1984); Pettway v. Am. Cast Iron Pipe Co., 681 F.2d 1259, 1266 (11th Cir. 1982); Hameed v. Int'l Ass'n of Bridge, Structural & Ornamental Iron Workers Local Union No. 396, 637 F.2d 506, 520-21 (8th Cir. 1980); Stewart v. GM Corp., 542 F.2d 445, 452-53 (7th Cir. 1976). Teamsters does not require individual class member hearings if they would lead to a “quagmire of hypothetical judgments.” Pettway v. Am. Cast Iron Pipe, Co., 494 F.2d 211, 260 (5th Cir. 1974). Where, as here, the employer's system has been infected with subjective decision-making and lacks records to document the employment decisions at issue, courts have concluded that allocating relief based upon economic models that replicate the decisions at issue “has more basis

in reality … than an individual-by-individual approach.” Id. at 263.
Here, the district court made findings to support the need for a classwide approach. App. 256a, 270a-276a. “Wal-Mart's database contains the critical information necessary to perform such an analysis for each employee individually, including job history, seniority, job review ratings, weeks worked, full-time versus part-time status, regular-time versus overtime, and store location.” App. 271a-272a. While it determined that there was “no need to assess individual interest levels with respect to equal pay,” the district court limited promotion back pay claims because of the absence of data demonstrating individual class member interest in promotion. App. 269a, 271a.
*47 Moreover, Wal-Mart's claim that individual hearings would somehow produce a more reliable result does not withstand scrutiny. Wal-Mart has maintained no contemporaneous records of the reasons for the tens of thousands of pay or promotion decisions at issue here. Many of the decisions were made more than ten years ago by managers who, at any one time, had hundreds or thousands of employees under their supervision. If individual hearings mean that Wal-Mart will offer little more than post hoc rationales for decisions it chose not to document, the district court was within its discretion not to require them. 3 Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 10:2 (4th ed. 2002). (“[A]ggregate evidence of the defendant's liability is more accurate and precise than would be so with individual proofs of loss.”).
4. There Is No Due Process Right to Defend Claims Individually
Finally, Wal-Mart invokes the Due Process Clause to assert a constitutional right to “present every available defense,” which the company interprets here as the “right” to defend any class action individual-by-individual. Pet. Br. 43. The cases from which it derives this sweeping (and heretofore unrecognized) constitutional right - one which would foreclose the use of class actions entirely - do not support the claim. Lindsey v. Normet, 405 U.S. 56, 64 (1972) (state statute requiring trial within six days in landlord-tenant actions does not violate Due Process *48 Clause); United States v. Armour & Co., 402 U.S. 673, 681-82 (1971) (“the scope of a co nsent decree must be discerned within its four corners”).
This Court has never recognized a constitutional right to present one's defense using particular forms and methods

of proof. Such case management decisions lie within the discretion of the trial courts, subject to appellate review after final judgment. See, e.g., Fed. R. Civ. P. 16(c)(2); Manual for Complex Litigation § 11. 64 (4th ed. 2009). Likewise, Rule 23 explicitly empowers trial courts to “determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument.” Fed. R. Civ. P. 23(d)(1).
II. CLAIMS FOR MONETARY RELIEF MAY BE CERTIFIED UNDER RULE 23(b)(2)
A. Rule 23(b)(2) Does Not Limit Certification to Cases Seeking Exclusively Injunctive or Corresponding Decla-
ratory Relief
Wal-Mart argues that a case may be certified under Rule 23(b)(2) only if it seeks exclusively injunctive and declaratory relief. This novel reading of Rule 23 is unsupported by the language of the Rule, the Advisory Committee Notes and more than 45 years of case law interpreting the Rule and Title VII.
*49 The text of Rule 23 provides in relevant part: A class action may be maintained if Rule 23(a) is satisfied and if. . . . (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive or corresponding declaratory relief is appropriate respecting the class as a whole.
Fed. R. Civ. P. 23.
By its terms, whether a class may be certified under Rule 23(b)(2) depends on the nature of the defendant's conduct and whether that conduct may be addressed through injunctive or declaratory relief for the class.
The text does not limit Rule 23(b)(2) actions to cases which seek only injunctive or declaratory relief. Indeed, nothing in the text of the Rule places any limit on relief available in a ( b)(2) class action. Rather, “the language describes the type of conduct by the party opposing the class which is subject to equitable relief by class action under (b)(2).” Wetzel v. Liberty Mutual Ins. Co., 508 F.2d 239, 251 (3d Cir. 1975). The term “making appropriate final injunctive relief” is thus a description of the conduct that justifies a 23(b)(2) class, not the relief that is available: This is not to be read as saying “thereby making appropriate only final injunctive relief.…” All that need be determined is that conduct of the party opposing the class is

*50 such as makes such equitable relief appropriate.
Pettway, 494 F.2d at 256-57 (emphasis added); accord Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir. 1998) (“Rule 23(b)(2), by its own terms, does not preclude all claims for monetary relief.”).
Nor may such limitation be read into the Rule. Rule 23 “creates a categorical rule entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Shady Grove, 130 S. Ct. at 1437. “[T]he rule as now composed sets the requirements [courts] are bound to enforce.… Courts are not free to amend a rule outside the process Congress ordered.…” Amchem, 521 U.S. at 620.
The Advisory Committee Notes, to which this Court often refers in interpreting the Rules, Amchem, 521 U.S. at 615-17; Eisen, 417 U.S. at 173-74, confirm this interpretation of Rule 23. The Notes provide that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” Fed. R. Civ. R 23(b)(2) Advisory Committee's Note (1966) (emphasis added). The Committee plainly anticipated final relief in a Rule 23(b)(2) action could include money damages, in addition to injunctive or declaratory relief. This language quite consciously reflects the distinction that the modern Rule drew between Rule 23(b)(2) cases, where money damages will not predominate, and Rule 23(b)(3) where damages may predominate. For the latter, the Rule imposes additional safeguards *51 to ensure the interests of the class are adequately protected.
Notwithstanding the unmistakably clear meaning of the Advisory Committee Notes, Wal-Mart would infer a contrary - and unspoken - intention to reserve Rule 23(b)(2) for exclusively injunctive relief claims from a l ist of pre-1966 cases cited in the Notes in which only non-monetary relief was sought. The Notes explain, however, that the list is intended to be “illustrative” of actions “in the civil-rights field where a p arty is charged with discriminating unlawfully against a class” - in other words, where defendant “has acted or refused to act on grounds that apply generally to the class.” Fed. R. Civ. P. 23(b)(2) Advisory Committee's Note (1966).
That the Advisory Committee list of cases did not include Title VII or other types of civil rights actions that authorized monetary relief is explained, not by an intention to exclude such claims, but by the timing of the Rules amendment process. The draft of the Committee Notes for the modern Rule 23 was completed and published in

March 1964. Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the United States District Court, 34 F.R.D. 325 (March 1964). It was not until July 2, 1964, that Congress passed the Civil Rights Act of 1964, which provided comprehensive civil rights protections in employment, public accommodations, housing and education. Pub. L. No. 88-352, 78 Stat. 241 (1964). The Notes, thus, cannot be read to implicitly limit the types of civil *52 rights cases nor the types of relief that may be sought under Rule 23(b)(2).
Wal-Mart also relies on Ortiz v. Fibreboard, 527 U.S. 815, 842 (1999), to argue that Rule 23(b)(2) must be limited to its “historical antecedents.” Ortiz did not address - nor even mention - the proper scope of Rule 23(b)(2).
The Advisory Committee plainly did not intend to limit the new provision to its “historical antecedents.” It sought to facilitate civil rights cases. Amchem, 521 U.S. at 614 (Rule 23(b)(2) “build[s] on experience mainly, but not exclusively, in the civil rights field”) (quoting Benjamin Kaplan, Continuing Work of the Civil Rules Committee, 81 Harv. L. Rev. 356, 389 (1967)); In re Monumental Life Insurance Co., 365 F.3d 408, 417 n.16 (5th Cir. 2004) (quoting 7A Charles A. Wright et al., Federal Practice and Procedure § 1775 (2d ed. 1986)). As Professor Kaplan explained, the new (b)(2) provision was intended to avoid the inefficiency of individual suits where the conduct was directed at a group: “individual lawsuits … would nevertheless be inadequate and inefficient [because] … the party opposing a class had acted on g rounds apparently applying to the whole group.” 81 Harv. L. Rev. at 389.
Wal-Mart argues in the alternative that, if any form of monetary relief is permitted under Rule 23(b)(2), the Court must find Rule 23(b)(2) unconstitutional. Pet. Br. 47. It rests this claim on two assertions: that the Due Process Clause requires notice and *53 opt-out rights for any class action in which any amount or form of monetary relief is sought, and that Rule 23(b)(2) prohibits notice and opt-out to class members. Neither Rule 23 nor this Court's Due Process jurisprudence supports these sweeping conclusions.
This Court has never held that the Due Process Clause mandates opt-out rights whenever any kind of monetary relief is sought in a class action. “It has been said so often by this Court and others as not to require citation of authority that due process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972); see Wil-

kinson v. Austin, 545 U.S. 209, 224 (2005) (“we generally have declined to establish rigid rules”). The requirements of Rule 23(a) and (b)(2) afford class members important due process protections. The Rule 23(b)(2) requirement that the district court determine whether injunctive relief predominates over monetary relief, which tests the cohesiveness of the class interests, “serves essentially the same functions as the procedural safeguards … mandated in (b)(3) class actions.” Allison, 151 F.3d at 414-15. In addition, class members' rights are protected by the determination that both the named plaintiffs and their counsel will adequately represent the interests of the class. Kincade v. Gen. Tire & Rubber Co., 635 F.2d 501, 507 (5th Cir. 1981) (no due process right to opt out of a 23(b)(2) class settlement); Wetzel, 508 F.2d at 257 *54 (declining “to hold that due process ineluctably requires notice in all (b)(2) class actions”).
This Court's decision dismissing certiorari as improvidently granted in Ticor Title Insurance Co. v. Brown, 511 U.S. 117 (1994), did not address - much less decide whether due process may be satisfied through other safeguards built into Rule 23(b)(2) where claims for back pay accompany proper claims for injunctive relief. App. 96a n.44. Shutts did not address these questions either. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). The Court limited its holding in Shutts to “claims wholly or predominately for money judgments” and mandated protections for state court class actions equivalent to those provided by Rule 23(b)(3) for damages cases. Id. at 812 n .3. It expressed “no view concerning other types of class actions, such as those seeking equitable relief.” Id. No court has ever held that notice and opt out rights are always required when any monetary relief is sought.
In any event, Rule 23 empowers a district court to take steps to protect a class in (b)(2) or other class cases. Fed. R. Civ. P. 23(d)(1) confers broad discretion on the district court to issue orders “to protect class members and fairly conduct the action,” which include notice of “members' opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims and defenses, or to otherwise come into the action.” Fed. R. Civ. P. 23(d)(1)(B). This subsection is, thus, part of the protections “designed to fulfill requirements of due process to which the class action procedure is of *55 course subject.” Fed. R. Civ. P. 23(d)(2) Advisory Committee's Notes (1966).
The 2003 amendments to Rule 23(c)(2) confirmed a court's authority to order notice in Rule 23(b)(1) and (b)(2) actions.

The Notes explain that the amendment did not confer new authority but instead “call[s] attention to the court's authority - already established in part by Rule 23(d)(2) - to direct notice of certification to a Rule 23(b)(1) or (b)(2) class.” Fed. R. Civ. P. 23 Advisory Committee's Note (2003). Several circuits, and the district court below, have found that the language of Rule 23 permits, but does not require, notice and opt-out rights in (b)(2) actions. See, e.g., Eubanks v. Billington, 110 F.3d 87, 94-95 (D.C. Cir. 1997) (“we join those circuits holding that the language of Rule 23 is sufficiently flexible to afford district courts discretion to grant opt-out rights in (b)(1) and (b)(2) class actions.”); In re Monumental Life, 365 F.3d at 417; Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 165-66 (2d Cir. 2001).
B. The Back Pay Remedy in Title VII Class Actions Is Consistent with Certification Under Rule 23(b)(2)
Although Wal-Mart did not dispute in the district court that “claims for … lost pay readily fall within the ambit of a (b)(2) class action,” App. 236a, it now challenges the inclusion of back pay claims in any Rule 23(b)(2) class. Pet. Br. 53-55. Both the district court and the Ninth Circuit concluded that plaintiffs' *56 back pay claims were properly certified under Rule 23(b)(2). App. 90a-94a, 269a, 276a.
The circuits unanimously concur that back pay relief may be sought in a Rule 23(b)(2) action. See Reeb v. Ohio Dep't of Rehab. & Corr., 435 F.3d 639, 650 (6th Cir. 2006); Cooper v. S. Co., 390 F.3d 695, 720 (11th Cir. 2004), overrruled on other grounds by Ash v. Tyson Foods Inc., 546 U.S. 454, 457 (2006) (per curiam); Robinson, 267 F.3d at 169-170; Jefferson v. Ingersoll Int'l Inc., 195 F.3d 894, 896 (7th Cir. 1999); Allison, 151 F.3d at 415-16; Kirby v. Colony Furniture Co., 613 F.2d 696, 699-700 (8th Cir. 1980); Rich v. Martin Marietta Corp., 522 F.2d 333, 342 (10th Cir. 1975); Pettway, 494 F.2d at 257-258; Robinson v. Lorillard Corp., 444 F.2d 791, 802 (4th Cir. 1971). This is true even for courts that have adopted the so-called “incidental damages” test for (b)(2) certification. See, e.g., Allison, 151 F.3d at 415-16.
The equitable nature of the Title VII back pay remedy and its close relationship with injunctive relief means that such a remedy is generally available in (b)(2) actions. The purpose of Title VII is to “achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group.” Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 (1975) (quoting Griggs, 401

U.S. at 429-30). As this Court has noted, back pay “has an obvious connection” to that purpose: If employers faced only the prospect of an injunctive order, they would have little *57 incentive to shun practices of dubious legality. It is the reasonably certain prospect of a backpay award that “provide(s) the spur or catalyst which causes employers … to endeavor to eliminate [discriminatory practices].”
Albemarle, 422 U.S. at 417-18 (citation omitted). Back pay is an integral component of Title VII's “make whole” remedial scheme. Id. at 419-21.
Title VII back pay awards are not “money damages,” which the Advisory Committee Notes address. Wetzel, 508 F.2d 239, 250-51 n.21. Back pay is an equitable remedy under Title VII, rather than a form of compensatory damages, and is awarded by the court. 42 U.S.C. § 2000e-5(g); Albemarle, 422 U.S. at 416-17, 421; Allison, 151 F.3d at 423 n.19. When Congress amended Title VII in 1991 to add compensatory and punitive damage remedies, it left intact the equitable nature of back pay, explicitly excluding back pay from the definition of compensatory damages. See 42 U.S.C. § 1 981a(b)(2) ( “Compensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under [42 U.S.C. § 2000e-5(g)].”); Kolstad v. Am. Dental Ass'n, 527 U.S. 526, 527 (1999) (citing “the 1991 A ct's distinction between equitable and compensatory relief”); see also United States v. Burke, 504 U.S. 229, 238-39 (1992), superseded by statute on other grounds, Pub. L. No. 104-188, § 1605 (1996), 26 U.S.C. § 104 (concluding that a Title VII back pay award was not excludable from income for *58 tax purposes since it did not compensate for personal injuries).
The discretion to deny back pay is extremely limited and justified only, in the rare instance, where an award would “frustrate the central statutory purposes” of Title VII. Albemarle, 422 U.S. at 405. Wal-Mart claims back pay is “nothing more than monetary compensation for past harm.” Pet. Br. 53; see Great-West Life & Annuity Ins. Co v. Knudson, 534 U.S. 204, 218 (2002). While the ERISA claim in Great Western may be so described, this Court distinguished Title VII back pay as “an integral part of an equitable remedy.” Id. at 218 n.4 (citation omitted).
Moreover, like injunctive relief claims, back pay claims are “rooted in grounds applicable to … the class.” Allison, 151 F.3d at 415-16 (quoting Pettway, 494 F.2d at 257). Both injunctive relief and class entitlement to back pay

derive from defendant's conduct that applies “generally to the class.” Such conduct forms the basis for a l iability determination that settles “the legality of the behavior with respect to the class as a whole.” Fed. R. Civ. P. 23(b)(2) Advisory Committee's Note (1966). This liability determination is the predicate both for class injunctive relief and an award of back pay to the class, establishing for each class member a presumptive right to back pay. Teamsters, 431 U.S. at 361-62.
*59 Finally, unlike damage claims, back pay proceedings under Title VII are tried to the court, not a jury, and do not turn on highly individualized factors such as causation or the subjectivity inherent in claims for emotional harm. Allison, 151 F.3d at 416-17. Back pay awards typically involve “less complicated factual determinations,” Reeb, 435 F.3d at 650, and may be calculated for the class based upon objective information found in the employer's payroll records. This is particularly true for the equal pay claims here, where there is no need to assess individual interest levels, and where objective computerized data “is readily available.” App. 271a.
Wal-Mart contends that back pay is highly individualized and may be awarded only through individual hearings. Pet. Br. 55. As noted above, individual hearings are not required in all pattern or practice cases. Moreover, even where Stage II hearings are required, Rule 23(b)(2) certification remains appropriate because of the equitable nature of back pay, and the common interest of class members in obtaining back pay that follows a pattern or practice liability finding. To hold otherwise would undermine this Court's determination that the Teamsters' pattern or practice method of proof is fully compatible with a Rule 23 class action. Cooper, 467 U.S. at 876 n.9 (“it is plain that the elements of a prima facie pattern-or-practice case are the same in a private class action.”).
Wal-Mart projects potentially “billions of dollars of back pay claims” which it argues, makes this case *60 categorically ineligible for back pay relief. Pet. Br. 55. Wal-Mart's simplistic calculus of the total potential back pay ignores the value of the corresponding injunctive claims in this case. Here, a potentially large back pay award for the class as a whole simply reflects the size of the class and thus results from the same facts that convinced the district court that injunctive relief claims had a broad scope. App. 89a, 238a-239a. Wal-Mart's approach would simply insulate defendants from (b)(2) classes whenever the class is large, no matter how significant the corresponding injunctive relief, a position that finds no support in either Rule 23 or

Title VII. Wal-Mart would foreclose the use of 23(b)(2) in precisely the circumstances that the class action can provide the greatest efficiencies for redressing the effects of pervasive workplace discrimination. Cf. Carnegie v. Household Fin., 376 F.3d 656, 660-61 (7th Cir. 2004) (Posner, J.).
Significantly, individual class claims for back pay in this case are likely to be relatively small, amounting to an average of $1,100 per year for hourly workers. J.A. 475a. Prosecution of such claims individually would be largely impracticable, and thus would not implicate the preference for individual litigation that may arise where damages predominate. See Fed. R. Civ. P. 23(b)(3) Advisory Committee's Note (1966); App. 89a. In contrast, the injunctive claims are substantial and would lead to “very significant long-term relief” for the class. App. 239a.
*61 C. Former Employees Are Properly Included in a Rule 23(b)(2) Class
Wal-Mart asserts that back pay must predominate over injunctive relief because class members who leave Wal-Mart at any time prior to judgment lack standing to seek injunctive relief. Pet. Br. 52. Wal-Mart thus reduces the Rule 23(b)(2) “predominance” determination to tallies of class members with an interest in injunctive relief, and those allegedly without, a calculation that would have to be performed continuously throughout the litigation, as current workers leave and new workers are hired.
Wal-Mart confuses two very different issues - standing of individual class members and the criteria for (b)(2) certification.[FN2] Under this Court's precedents, plaintiffs and the class they represent have standing to seek injunctive relief. Two named plaintiffs are still Wal-Mart employees as are a substantial number of class members, and thus they unquestionably have standing to seek injunctive relief on behalf of themselves and the class. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 403 (1980); Franks v. Bowman Transp. Co., 424 U.S. 747, 755-56 (1976).
FN2. The Ninth Circuit's more limited holding, excluding employees who left employment prior to the filing of the action, also conflated class member standing with the Rule 23(b)(2) inquiry. App. 100a-102a.
Rule 23(b)(2) focuses on a defendant's conduct that gives cohesion to the class. This cohesion is not *62 lost if in-

junctive relief subsequently becomes unavailable for some or even all class members. “The conduct of the employer is still answerable ‘on grounds generally applicable to the class.’ ” Wetzel, 508 F.2d at 251.
Where a group of victims challenge the same discriminatory employment practice, Rule 23 provides an efficient and economical means of adjudicating these claims. See Crown, Cork & Seal Co., Inc. v. Parker, 462 U.S. 345, 349 (1983) (recognizing “the principal purposes of the class action procedure” are the “promotion of efficiency and economy of litigation”). Treating current and former employees as members of the same class serves this goal because a pattern or practice liability finding establishes the common predicate for injunctive and monetary relief. Teamsters, 431 U.S. at 361-62.
Wal-Mart's formulation once again relies on an incomplete calculus for assessing whether monetary claims predominate. First, it assumes that back pay claims of former employees undermine 23(b)(2) status, a view at odds with the role of back pay in Title VII. See supra at 55-60. Moreover, predominance cannot be determined solely by a head count of former and current employees, because injunctive relief will benefit not only class members who are current employees, but also “all future female employees as well.” App. 239a. Former employees could also benefit from an injunction, since they may seek employment with Wal-Mart in the future once discriminatory conditions are eliminated. Wetzel, 508 F.2d at 253 *63 (former employees “may desire to renew their employment … if the discriminatory practices are terminated.”); see Gratz v. Bollinger, 539 U.S. 244, 262 (2003) (applicant denied admission to university who expressed a desire to reapply may challenge admission practices).
It is inevitable that the class of victims affected by an allegedly discriminatory workplace practice will include both current and former employees. This is, of course, because employee turnover is common, especially in the retail industry. Pet. Br. 52. One would expect turnover to be even higher in a workplace where discrimination is prevalent. Wal-Mart's approach would encourage employers to prolong the EEOC process and subsequent litigation, so that normal turnover may do its work to undermine any potential 23(b)(2) class. Even ordinary non-class litigation is lengthy: Delays in litigation unfortunately are now commonplace.… In a better world, perhaps, lawsuits brought under Title VII would speed to judgment so quickly that the effects of legal rules on the behavior of the parties during

the pendency of the litigation would not be as important a consideration. We do not now live in such a world.…
Ford Motor Co. v. EEOC, 458 U.S. 219, 228 (1982). The delays in this case, filed nearly 10 years ago, are by no means unique. See, e.g., Lewis, 130 S. Ct. at 2196 (complaint filed in 1998).
*64 Wal-Mart's misconception also creates a “perverse incentive” for employers to fire employees who might initiate - or simply be a member of - a Title VII class action. See Robinson v. Shell Oil Co., 519 U.S. 337, 346 (1997) (concluding that similar concerns support protection of former as well as current employees under Title VII's anti-retaliation provision); Wetzel, 508 F.2d at 247 (if former employee could not be a class representative for current employees, “employers would be encouraged to discharge those employees suspected as most likely to initiate a Title VII suit”).
D. Punitive Damages May Be Certified Under Rule 23(b)(2) in Some Cases
This case does not now present the question whether class punitive damages may be certified under Rule 23(b)(2). The Ninth Circuit vacated and remanded the district court's certification of the claim of punitive damages, directing the court to consider a variety of factors in order to determine whether punitive damages may be awarded to a class certified under Rule 23(b)(2) or (b)(3). Respondents briefly address Wal-Mart's contentions although the Court need not address this issue.
Wal-Mart argues that punitive damages will always predominate. Pet. Br. 55 (citing Allison, 151 F.3d at 418). Its categorical approach finds no support in the text of Rule 23(b)(2) and cannot be reconciled with the Advisory Committee's explanation that (b)(2) *65 certification is appropriate unless relief sought is “exclusively or predominantly” monetary damages. See id. at 426 (Dennis, J., dissenting); App. 87a.
Wal-Mart asserts that punitive damages must be assessed on an individual basis, even in a class case. Pet. Br. 56. The availability of punitive damages in a class case that challenges company-wide policies and practices turns on facts that are common to the class. Here, class members have a cohesive interest in ensuring that a punitive damage award will punish and deter defendant's conduct consistent with Rule 23(b)(2). See Allison, 151 F.3d at 417 (punitive damages might be certified under (b)(2) under some cir-

cumstances). Punitive damages in a Title VII case are not compensatory, but focus on the defendant's state of mind. Kolstad, 527 U.S. at 538; see Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). The defense to a punitive damage claim in a corporate setting does not turn on the acts of lower level subordinates, but on the employer's “good-faith efforts to comply with Title VII.” Kolstad, 527 U.S. at 545-46.
Wal-Mart relies on the use of the term “aggrieved individual” in Title VII' s punitive damage provision. 42 U.S.C. § 1981a(B)(1). Nothing in that provision or its legislative history suggests that punitive damages must be assessed on an individual basis. This Court has held that use of the term “individual” in a statute does not preclude class treatment of claims. Califano, 442 U.S. at 698-701.
*66 Wal-Mart's reliance on State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408, 422 (2003), and Phillip Morris USA v. Williams, 549 U.S. 346, 353 (2007), is similarly misplaced. These cases both involved punitive damage awards in individual state personal injury cases, where the jury's award took into account similar harm inflicted on non-parties to the litigation. In contrast, in a class action like this, the injured parties are all before the court and the court can ensure that any award of punitive damages is based “solely on … conduct that was directed toward the class.” App. 241a.
***
Wal-Mart assumes that Rule 23 certification is an all-or-nothing proposition: either the case must be certified under Rule 23(b)(2) in its entirety or, as it advocates, not at all. Rule 23 is not so inflexible. The text of Rule 23 and the Advisory Committee Notes set forth the appropriate framework for Rule 23; the application of the Rule is left to the “broad discretion” of the district court. Falcon, 457 U.S. at 160. Courts have certified for trial as to specific common issues, In re Nassau Strip Search Cases, 461 F.3d 219, 226 (2d Cir. 2006); Allen v. Int'l Truck & Engine Corp., 358 F.3d 469, 471-72 (7th Cir. 2004), or adopted a “hybrid” approach, certifying liability under Rule 23(b)(2) and damage claims under 23(b)(3). Jefferson, 195 F.3d at 898; see Fed. R. Civ. P. 23 Advisory Committee's Note (2003) (endorsing hybrid certification).
The district court is in the best position to evaluate the “pragmatic ramifications of adjudication in *67 each situation,” particularly in making a Rule 23 (b)(2) determination. Pettway, 494 F.2d at 256-57 (quoting 3B Moore's

Federal Practice ¶ 23.45 at 703 (2d ed. 1969)). Here, the district court understood and fulfilled this pragmatic role. While recognizing “the importance of the courts in addressing the denial of equal treatment under the law wherever and by whomever it occurs,” App. 166a, the district court conducted a thorough and rigorous Rule 23 inquiry, evaluating the evidence and arguments presented by each side. It determined to certify the class but limited the promotion claims and approved a right to opt out. App. 243a, 267a. The district court's order was a proper exercise of discretion.
CONCLUSION
This Court should affirm the certification of the class.
*1a BRAD SELIGMAN (SBN 083838)
JOCELYN D. LARKIN (SBN 110817)
THE IMPACT FUND
125 University Avenue
Berkeley, CA 94710
Telephone: (510) 845-3473
Facsimile: (510) 845-3654
IRMA D. HERRERA (SBN 98658)
DEBRA A. SMITH (SBN 147863)
EQUAL RIGHTS ADVOCATES
1663 Mission Street, Suite 250
San Francisco, CA 94103
Telephone: (415) 621-0672
Facsimile: (415) 621-6744
SHEILA Y. THOMAS (SBN 161403)
EQUAL RIGHTS ADVOCATES

5260 Proctor Avenue Oakland, CA 94618 Telephone: (510) 339-3739 Facsimile: (510) 339-3723 JOSEPH SELLERS CHRISTINE WEBBER CHARLES TOMPKINS JULIE GOLDSMITH COHEN, MILSTEIN, HAUSFELD & TOLL West Tower - Suite 500 1100 New York Avenue Washington, D.C. 20005-3964 Telephone: (202) 408-4600 Facsimile: (202) 408-4699 STEPHEN TINKLER MERIT BENNETT TINKLER & BENNETT 309 Johnson Street Santa Fe, New Mexico 87501 Telephone: (505) 986-0269 Facsimile: (505) 982-6698 DEBRA GARDNER PUBLIC JUSTICE CENTER 500 East Lexington Street

Baltimore, MD 21202 Telephone: (410) 625-9409 Facsimile: (410) 625-9423 *2a STEVE STEMERMAN (SBN 067690) ELIZABETH LAWRENCE (SBN 111781) DAVIS, COWELL & BOWE 595 Market Street, Suite 1400 San Francisco, CA 94105 Telephone: (415) 597-7200 Facsimile: (415) 597-7201 SHAUNA MARSHALL (SBN 90641) HASTINGS COLLEGE OF THE LAW 200 McAllister Street San Francisco, CA 94102 Telephone: (415) 565-4685 Facsimile: (415) 565-4854 Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA BETTY DUKES, PATRICIA SURGESON, CLEO PAGE, CHRISTINE KWAPNOSKI, DEBORAH GUNTER, KAREN WILLIAMSON AND EDITH ARANA, on behalf of themselves and all others similarly situated, Plain-
tiff, vs.

WAL-MART STORES, INC., Defendant
Case No. C-01-2252 MJJ
DECLARATION OF DR. RICHARD DROGIN IN SUPPORT OF PLAINTIFFS' REPLY BRIEF IN SUP-
PORT OF CLASS CERTIFICATION
(Filed Jul. 3, 2003)
Date: July 25, 2003
Time: 10:00 a.m.
Courtroom: 11
*3a I, Dr. Richard Drogin declare:
I make this declaration of my own personal knowledge and could testify thereto if called as a witness.
A. INTRODUCTION
1. I have been retained by Plaintiffs' counsel to analyze statistical questions raised in the Dukes v. Wal-Mart Stores, Inc. litigation. The purpose of my study was to obtain descriptive summaries of computer data, and prepare various statistical analyses relevant to the issues in the case. I have previously submitted a report in this litigation, dated February 3, 2003. Subsequently, defendant's expert Dr. Joan Haworth submitted a report dated April 1, 2003 giving her opinion and results regarding her review of my February 3 r eport. On April 18, 2003 she provided an amended report and revised analyses. Then, on April 21, 2003, at her deposition, she provided additional backup materials for her revised analyses. I attended that deposition. Subsequently, she filed a declaration in Opposition to Class Certification. The declaration below gives my rebuttal to Dr. Haworth's report and deposition testimony. Except for the addition of citations to Dr. Haworth's declaration in Opposition to Class Certification, the attachment of cited documents, and the correction of typos, this declaration is identical to the rebuttal report I wrote dated May 6, 2003.
*4a 2. Dr. Haworth's report covers several issues regarding plaintiff's expert reports. My rebuttal will address those areas where she has presented her opinions regarding issues covered in my February 3 report. In this declaration I will explain the flaws in her conclusions regarding the

promotion process and compensation system at Wal-Mart. Unless otherwise noted, all references given below to her report will refer to the original report dated April 1, 2003 and corresponding references in her Declaration. She has testified at her deposition that there are no substantive differences between her April 1, 2003 report and the revised report of April 18, 2003. Her declaration adds additional analyses and material, which I have not analyzed. Some of the tables in her Declaration also cover a shorter time frame than those utilized in her report, and thus the numbers do not always correspond to those in her report. My rebuttal report, and this declaration, do n ot address these changed numbers.
B. SUMMARY OF FINDINGS
3. Dr. Haworth's analysis and conclusions are defective because she: a. Relies on incomplete and “nearly useless” job posting data in her analysis of promotions to hourly jobs; b. Fails to note that job posting selections contribute to gender segregation by department; *5a c. Fails to note that the average percentage of women in the appropriate pool of most qualified applicants determined from the MIT program is nearly identical to the average percentage of women in the availability pool I used in my promotion analysis presented in my February 2003 report, thus corroborating my earlier analysis of promotions into MIT; d. Relies on Management Career Selection data that is incomplete and biased, thereby ignoring all promotions to salaried jobs except Store Manager; e. Inappropriately disaggregates hourly employees into 7500 separate subunits to perform her regression analysis of hourly pay rates because she: • Ignores documented company policy for setting pay rates in her decision to analyze stores separately; • Incorrectly applies statistical methodology in deciding to analyze stores separately; • Arbitrarily subdivided stores further into smaller grocery/non-grocery and specialty subunits, which is unsupported by any written company policy; f. Relies on a Store Manager Survey to justify her regression model, despite admitting that the survey methodology violates accepted scientific standards, and was conducted by defense counsel contrary to her recommendations; *6a g. Erroneously excludes from her hourly pay rate analyses persons who were Department Heads; h. Arbitrarily and inexplicably excludes from her hourly pay rate regressions persons who were ever demoted and persons who ever had been salaried;

i. Includes tainted variables in her compensation regression analyses despite her testimony in other litigations stating that this should not be done; j. Includes variables in her compensation regressions without justification or explanation; k. Fails to report statistically significant aggregated results of her subunit regressions even though she has testified in other litigations that such aggregation is appropriate to determine if there is an overall disparity; l. Fails to report compensation regressions for salaried employees other than Store Manager even though these are included in her backup materials.
C. PROMOTIONS
4. Dr. Haworth criticized my promotion analyses, and presented various analyses of her own derived from the Job Posting System, Management Training Posting, and Management Career Selection System. Each of these is addressed below.
*7a Job Posting Data - Nearly Useless
5. Dr. Haworth presents a lengthy discussion of the job posting system at Wal-Mart and does several analyses concluding that “[w]hen all of the job postings for all the stores in all districts and all regions are all aggregated there are 3,266 more female job offers than expected in a gender-neutral process when controlling for department and job code.”[FN1] Dr. Haworth's analysis and conclusion are misleading, and not probative, because the job posting data upon which she relies is incomplete and is not utilized systematically.
FN1. See middle of page 24 of her report; Declaration at 47:17-19.
6. For example, for promotions into Support Manager, a job where it is possible to determine the completeness of the job posting data relative to actual promotions recorded in the PeopleSoft job history data, the job posting data includes posting and acceptances in only 20% of the total number of actual promotions found in the PeopleSoft data.[FN2] With such a large percent of vacancies filled outside the job posting system, and no policy or explanation regarding when the system was utilized or by-passed, no meaningful analysis of promotions can be conducted from this dataset.
FN2. See Table 19, pages 28-29 of Drogin, Feb-

ruary 2003 report. Lateral moves are not counted in the PeopleSoft promotions in this study.
*8a 7. Dr. Haworth relied on the job posting data, but made no attempt to evaluate or study the completeness of the job posting data.[FN3] At her deposition, when asked whether she had done any “… analysis for any position in the job posting data versus Global PeopleSoft”, she answered, “I don't recall doing such.”[FN4] Further, when asked “So you don't know what proportion of positions that were filled in the Global PeopleSoft were filled by posting for any hourly job?” she answered “… I do not know what proportion of the moves into support manager, whether demotions, promotions or laterals, were therefore covered by the posting.”[FN5]
FN3. Dr. Haworth was aware there was or might be a problem with the job posting data, since she had read my report, which indicated the job posting data was incomplete, and also attended my deposition at which I described the problem.
FN4. Haworth deposition page 101, line 14.
FN5. Haworth deposition, page 101, lines 15-24.
8. In fact, it can only be concluded that the job posting data is “nearly useless” according to Dr. Haworth's published statements in the Employee Relations Law Journal. Dr. Haworth's failure to note the high degree of incompleteness of the job posting data, the apparent lack of any system governing when the job posting was used, and her failure to present any study of these obvious problems directly contradict the first caveat she espoused in an article *9a co-authored with her husband published in the Employee Relations Law Journal:[FN6]
FN6. The article appears in Volume 12, pages 352-369 of the Employee Relations law Journal, and has been designated in this litigation as Bates WMHO1234046-WMHO1234063. Quote appears on WMHO1234058, attached as Ex. 1.
“The information collected from applicants must be sufficient to allow a proper analysis of the selection process in a race- and gender-neutral environment. To this end, there are two general caveats. First, information that is collected but never verified or checked for accuracy is nearly useless.”

Job Posting Selections Contribute to Gender Segregation by Department

9. Ignoring the defects with job posting data described above, Dr. Haworth fails to note, or present any explanation of, obvious gender segregation patterns indicated by her job posting promotion analysis. For example, her analysis shows that female bidders for Department Head jobs receive significantly more promotions in the departments with the highest percent female than would be expected based on their application rate, and significantly fewer promotions in departments with highest percent men. Tables 1a and 1b below list the ten departments with the *10a highest percent women, and the lowest percent women[FN7] as of year-end 2001.

Target Department

% Wom

Diff.

34 Ladies Sportswear 99.2

35.10

27 Hosiery

99.1

66.30

19 Piece Goods

99.1

61.50

46 Health & Beauty

98.7

56.40

26 Infants & Toddlers 98.6

79.90

32 Jewelry

97.3

58.30

910 Back Office

94.2

203.20

23 Men's Wear

92.5

92.80

20 Domestic Goods

92.4

20.90

40 Pharmacy

88.8

54.20

FN7. ‘% Women’ is the % women among active employees at year-end 2001, restricted to departments with at least 5000 employees, shown in Table 14 of my February 2003 report, ‘Diff’ and ‘Z-Value’ are taken from Dr. Haworth's table on page 22-23 of her report. See Declaration at 43-44.
Table 1A
Dr. Haworth Job Posting Analysis for 10 Departments with Highest Percent Women
Z-Value 5.20 6.90 7.40 6.70 6.60 6.20 9.30 6.90 1.90 5.00

Total

*11a Table 1b

Target Department 16 Horticulture 8 Pets and Supplies 284 Div 28 Receiving 9 Sporting Goods 4 Paper Goods 11 Hardware 90 Dairy Products 93 Meat 94 Produce 37 TBO Service

% Wom 39.3 37.6 30.7 30.2 29.5 27.7 25.9 21.9 9.4 6.7

728.60

19.41
Dr. Haworth Job Posting Analysis for 10 Departments with Lowest Percent Women

Diff. 8.30 -77.00 7.50 14.20 -33.40 -26.90 -30.20 -4.10 -10.70 -170.70

Z-Value 0.40 -3.10 1.40 0.70 -1.30 -1.20 -2.70 -0.70 -1.90 -3.60

Total

170.00

-3.18

10. Tables 1a and 1b s how that women received 728.6 more offers for Department Head jobs in highly female departments than expected, and 170 f ewer offers than expected in highly male departments, based on their percent among applicants. These disparities are statistically significant: For the over-promotion of women into Department Head in highly female departments with Z-value of 19.41, there is only 1 chance in 10 to the 70th power that a disparity this large would occur under random selection. For the under-promotion of women into Department Head in departments with the lowest percent female the Z-value of-3.18 indicates there is less than 1 chance in 700 that a disparity this large would occur under *12a random selection.[FN8] For both of these analyses, the expected number is based on the percent of women among applicants who applied for the positions, as determined from the job posting data. Thus, Dr. Haworth's job posting analysis demonstrates that gender segregation by department is perpetuated, in part, through the job posting system.
FN8. Dr. Haworth's table on page 22 of her report shows that women received 62.6 fewer promotions into Department Head jobs in the Home Furnishing Department, resulting in a Z-value for this disparity of -3.35. The Home Furnishing Department had only 23% women among its employees at year-end 2001, but was not included in Table 1b above, because the number of employees in this department was below the 5000 level that I used for selecting departments. If Home Furnishings had been included in Table 1b, then the disparity, and pattern of under-promotion of women in predominately male departments would be more pronounced. Her declaration uses similar, although somewhat changed numbers, reflecting a s horter time frame. Declaration at 43-44.
2003 Assistant Manager Training Program Corroborates Plaintiff's Analysis
11. Prior to January 2003 Wal-Mart had no system for hourly employees to express interest or apply for any entry level salary management positions. In January 2003 Wal-Mart introduced for the first time a system for accepting applications for their new Assistant Manager Trainee Program (also referred to as the Management-In-Training Program, or, simply, MIT Program). During a one week period Wal-Mart received about 30,000 applications through *13a this system, and about 1400

selections were made during March.
12. Dr. Haworth presents an analysis of the data from this MIT Program, and reports that “The percentage of females who voluntarily expressed interest in 2003 in promotion to management levels (44%) is similar to the 41% women were among those who were promoted in the Assistant Manager Trainee positions in the five years prior to the inception of this program.”[FN9] Her statement (“44% is similar to 41%”) suggests that the 2003 M IT program indicates the selection of female hourly employees to positions as MIT during 1998-2002 was consistent with their interest and qualifications for such positions.[FN10] In fact, the MIT data she presents shows the exact opposite, and corroborates the analysis of promotions into MIT positions that I presented in my report.
FN9. Page 25 of Haworth report. Declaration at 51:7-10.
FN10. She also suggests the bid rate for Support Manager positions in the job posting data is consistent with the actual promotions into MIT positions, on page 25 of her report. However, in her deposition testimony, page 116, lines 6-10, she admitted that this comparison is not meaningful. Her Declaration does not include this suggestion.
13. Assume, as Dr. Haworth does, that the January 2003 MIT program was fair and unbiased with respect to gender[FN11]. Under this assumption, the *14a data from the MIT program might be used to obtain the correct unbiased percentage of women among the most qualified hourly employees who want to enter salary management positions. Dr. Haworth incorrectly suggests the fair availability percentage would be 44%, i.e. the percentage of women among all those applying in the MIT program. However, the correct percentage of females among the “true, unbiased” availability pool would be those interested and available, and also most qualified. There may be many men and women who submitted applications in the 2003 MIT program who expressed interest in promotion, but for some reason are not among the most qualified. The group of people who are interested, available, and most qualified would be determined by the percentage of females among those actually selected from the process, since presumably (as Dr. Haworth believes[FN12]) Wal-Mart has selected the best, most qualified applicants. The percentage of women selected in the MIT program was 59.8%. Thus, based on Dr. Haworth's assumptions, the most accurate availability figure of women who are interested in MIT positions

among those most qualified would be 59.8%.
FN11. At her deposition, page 122, line 24 through page 123, line 16 Dr. Haworth indicated her opinion that the MIT selections were the “most qualified” applicants among those “interested and available”, and she had “no information” that affirmative action was being used to select women.
FN12. Page 122 line 24 through page 123 line 6 of Haworth deposition.
14. In my February 2003 report I presented an analysis of promotions into MIT positions during *15a 1997-2002. I determined the percentage women in the pool of those available for promotion to be 59.6%, as shown in Table 23 of my report. My determination of this percentage was based on the percent of women in the historical feeder pools for the MIT positions.[FN13] The 59.6% availability figure I derived in my promotion analysis is nearly identical to the 59.8% availability figure derived from the January 2003 MIT Program selections, as described in the previous paragraph. Based upon my analysis, I found that there was a shortfall of about 3000 females promoted to MIT positions during 1997-2002. Since the 59.8% and 59.6% availability figures are so close, the results of the recent 2003 MIT Program corroborates the female availability for promotions into MIT positions I used to compute this shortfall in female promotions to MIT positions.
FN13. In my report, and at my deposition I explained that insufficient information was available at that time to evaluate the fairness of the January 2003 MIT postings.
15. Moreover, Dr. Haworth has reported that 40.8%[FN14] of applicants for MIT positions from Sam's Club employees were women, while only 31.4%[FN15] of those promoted to MIT positions at Sam's during 1996 through first quarter 2002 were women. At her deposition, she was asked if the MIT bid rate of 40.8% *16a was compared to the selections during the period 1996-2002, whether the disparity would be statistically significant.[FN16] She first answered “I don't know”[FN17]. When asked again, she said “I don't know, but one would calculate it.”[FN18] Finally, when asked a third time she answered “If you aggregated them all, I think they would be more than two standard deviations.”[FN19] Thus, according to Dr. Haworth's own deposition testimony, there is a statistically significant female shortfall in actual promotions to MIT positions during

1996-2002 at Sam's Club, compared to female availability based on applicants for the MIT program from Sam's in January 2003.
FN14. Page 30 of Dr. Haworth's redlined report. Declaration at 53:21
FN15. Page 89 of Dr. Haworth's redlined report. Declaration at 165:6. My computations show only 25.4% of MIT promotions were women during 1997-1st quarter 2002.
FN16. Haworth deposition, page 151 lines 7-11.
FN17. Page 151, line 12
FN18. Page 151, line 21
FN19. Page 152, lines 1-2
Management Career Selection Incomplete
16. The MCS system is used by Wal-Mart to fill some openings in salary management jobs. Dr. Haworth concludes from her analysis of MCS data that there are no statistically significant selection decisions adverse to women across all the postings for each salaried job. This conclusion is misleading, because the MCS system cannot be considered as an unbiased, fair bidding system as described below, and covers only a small number of salary store management decisions.
*17a 17. The MCS system is rarely used to fill management positions below Store Manager. As Dr. Haworth reports (page 35 of her report, Declaration at 66:4-6), the MCS system was used to fill only 2% of Co-Manager positions, and less than 1% of Assistant Manager Positions. At her deposition, Dr. Haworth testified[FN20] that she could not say whether or not the small number promotions into Co-Manager or Assistant Manager positions found in the MCS data were a representative sample from those interested in these positions. Accordingly, no meaningful analysis of promotions into Co-Manager or Assistant Manager can rely on the MCS system. The only store a salary management position for which the MCS system appears to have been used on any kind of regular basis is the Store Manager job.
FN20. Page 310, lines 11-16

18. The MCS appears to be used most of the time for filling Store Manager openings, but still the number of moves found in the MCS is about 400 f ewer than the number found in the PeopleSoft data, according to Dr. Haworth's calculations. (Report at 35; Declaration at 66:5). Dr. Haworth gives no explanation why there would 400 Store Manager openings filled outside of the MCS system. In Addition, as explained in my February 2003 r eport, the MCS system cannot be considered an unbiased bidding system due to the requirement that prior approval is necessary before an employee can bid. Moreover, *18a Dr. Haworth fails to point out the fact that women promoted into Store Manager positions are disproportionately assigned to smaller stores than men, and hence earn less money.[FN21]
FN21. I examined whether women were disproportionately assigned to smaller stores. Promotions into Store Manager were divided up according to whether the target store was large or small, where ‘large’ stores were those with size 60,000 square feet or more. For each year, and for Sam's and non-Sam's stores, I determined the shortfall of women promoted into large stores compared to what is expected from their proportion among promotees. The overall Z-value for this analysis is -3.97, indicating a statistically significant pattern where women were moved into smaller stores.
D. COMPENSATION
19. In my February 2003 report I presented several analyses of compensation of all hourly and salaried store management employees, based upon the statistical technique known as linear regression. Dr. Haworth presented an analysis of compensation for hourly employees, and for salaried store management employees restricted to Store Managers. She did not present any compensation analysis for Co-Managers and Assistant Managers in her report, or any other salaried employees, though she did perform them.[FN22]
FN22. She admitted in her deposition that she had performed such analyses, see page 320, lines 14-18, and page 322 l ines 14-18. Her backup materials indicate the results she found showed a pattern adverse to women.
*19a 20. Dr. Haworth also used linear regression analysis to do her compensation studies, but used a different model

than I did. She claims that her studies “properly model the decision process”[FN23]. She cites deposition testimony, the Store Manager Survey, and certain statistical tests as the basis for her conclusions.
FN23. Haworth report, page 104. Declaration at 132:19.
Compensation for Hourly Employees
21. Dr. Haworth incorrectly decided it is necessary to divide the hourly employees into about 7500[FN24] separate subunits and do separate regressions for each subunit. Moreover, she improperly includes certain explanatory variables in her regressions that are either tainted, or not considered by Wal-Mart in setting pay rates. Accordingly, her analysis is inaccurate and unreliable. The following paragraphs describe the defects in her analysis in more detail.
FN24. The total number of sub-units for which she attempted regressions is 7691, based on her supplemental results contained on the CD she turned over at her deposition. Also, see page 172 lines 15 through page 173 line 9 of her deposition.
22. She ended up with such a large number of separate regressions by first dividing employees by store, then further dividing them by whether they held grocery or non-grocery jobs, then further dividing the non-grocery jobs into the six specialty *20a divisions[FN25] and the remaining non-grocery jobs. In many stores, her analysis separates employees into eight subunits within a store[FN26]. There is no basis in Wal-Mart policy, or statistical justification for the extreme disaggregation of the data used by Dr. Haworth. The consequence of her disaggregation is to reduce the number of employees analyzed in each regression to a small group, sometimes as low as 20-30 employees.[FN27] In many cases there are so few employees in a subunit that the regression for this group could not be run.
FN25. Haworth deposition, page 196, lines 10-25.
FN26. For example, in SuperCenter stores, Dr. Haworth would separate employees into grocery, non-grocery, and 6 specialty division jobs.
FN27. Haworth deposition, page 188-191.
Overly Disaggregated Analysis, Stores

23. Dr. Haworth ignores established, documented company wide policy controlling much of the compensation process, and contradicting her methodology. She cites Store Manager discretion[FN28] in setting pay rates as an important reason for her decision to do separate store regressions. In fact, Store Managers are constrained in the amount of discretion they have in setting pay rates. Wal-Mart's company wide Field Associate Compensation Guidelines indicate several *21a aspects of salary setting and job assignment which require approval at the District and/or Regional Manager level. The Compensation Guidelines state that “the Store Manager needs to have the flexibility to address … differences”[FN29] among employees in setting pay rates. However, these Guidelines list several ways in which the Store Manager is constrained in their discretion:
FN28. See page 41 of her report. Declaration at 92:16-93:2. On page 47, she says, “Because pay rates for hourly employees at Wal-mart and SC etc. are generally established by Store Mgrs etc.”
FN29. Field Associate Compensation Guidelines, WMHO000676. The Guidelines are attached as Ex. 2
a. “Exceptions to these guidelines will be reported every pay period in the Payroll Exception Report, which will roll up to the Distinct Manager and Regional Vice President.”[FN30]
FN30. Field Associate Compensation Guidelines, WMHO000676.
b. “The People Group and your Regional People manager will act as consultants to ensure consistency in the program's administration and to provide compensation standards for hiring, evaluating and awarding pay increases.”[FN31]
FN31. Field Associate Compensation Guidelines, WMHO000676.
c. “A facility's pay structure is based on local competitive pay rates of comparable jobs, and established in conjunction with the District Manager, Regional Vice President, and Regional People Manager.”[FN32]
FN32. Field Associate Compensation Guidelines,

WMHO000677.
*22a d. In setting the starting rate for new hires, “… any increase above 6% of the Starting Rate requires District Manager or Specialty Group Regional Manager approval.”[FN33]
FN33. Field Associate Compensation Guidelines, WMHO000678. I found that during the period May 1999 through April 2000 (the one year period following the effective date of these Guidelines) approximately 90% of the stores had at least one instance where there was a new hire paid at least 6% above the starting rate in that store for the pay class into which the employee was hired. Moreover, I found that approximately 40% of all hires were initially paid at least 6% above the starting rate in that store for the pay class into which the employee was hired.
e. “… all associates' pay levels should be reviewed and any pay inequities caused by the Start Rate adjustments should be identified and discussed with your District Manager.”[FN34]
FN34. Field Associate Compensation Guidelines, WMHO000687.
f. A national pay structure specifies a $0.25 per hour gap between Start Rates in consecutive pay classes (i.e. pay class 1 to 2, pay class 2 to 3, etc.)[FN35]
FN35. WMHO205186
24. Moreover, store management employees frequently change stores, districts and even regions.[FN36] These personnel decisions made by Wal-Mart reflect control exerted above the Store Manager level, further indicating that stores are not isolated from each other. By doing separate regressions for every store *23a subunit, Dr. Haworth fails to capture the effect of District, Regional, and company wide control over the compensation process.
FN36. See Table 16 and 17 of Drogin February 2003 report.
Overly Disaggregated Analysis, Subunits within Store
25. Dr. Haworth claims each store contains too broad of a group of employees for making meaningful comparisons.

So, she divides each store into as many as eight subunits for separate analysis (i.e. grocery, non-grocery, and the six specialty divisions. Her disaggregating of each store into sub-groups is not justified by any written Wal-Mart policy, nor did she conduct any statistical analyses to justify her assertions that the subunits she defines within a store have different “pay structures”.[FN37]
FN37. The Chow tests she incorrectly claims justify her disaggregation of employees by store, were never applied to tests for differences between subunits within stores.
26. Dr. Haworth admitted at her deposition that Wal-Mart guidelines do not mention department as a factor to consider in setting pay rates.[FN38] Wal-Mart's Field Associate Compensation Guidelines indicate how starting pay rates, and increases thereafter, are to be set for hourly jobs, and make no distinction between department or divisions. Thus, according to company wide Wal-Mart policy expressed in its Field Associate Compensation Guidelines, there is no *24a separate “pay structure” for grocery, non-grocery, and each of the six specialty divisions.
FN38. Page 81, line 14 through page 82, line 8, and pages 201-203 of Haworth deposition.
27. There is a g reat deal of movement between departments[FN39] in a store, indicating that Dr. Haworth's departmental subunits in a store do not have isolated decision making structures. Dr. Haworth testified at her deposition that it is ultimately the Store Manager's decision to reassign employees between departments.[FN40]
FN39. Haworth report, page 16, Declaration at 48:5-7.
FN40. Haworth deposition, page 95, lines 14-17.
28. Dr. Haworth's disaggregating of stores into subunits within the store, and doing separate analysis for each sub-group, makes it impossible to identify important gender patterns that may occur in a store. For example, if men and women are disproportionately assigned to different departments, which are in separate sub-groups in Dr. Haworth's analysis, then the pay rates for these men and women would never be included in the same regression, and therefore never compared.
Store Manager Survey Improper and Unreliable

29. Dr. Haworth relies extensively on the manager survey[FN41] to justify her method of disaggregating *25a employees and variable selection in regression model, despite admitting that the methodology of the survey violates accepted scientific standards, and was conducted in a manner contrary to her recommendations. Moreover, she acknowledged that having attorneys conduct the survey is considered to be biased and unreliable by courts and the scientific community. At her deposition she was asked, “Do you consider this survey as designed and as implemented to be a scientifically acceptable survey?”[FN42] She answered: “I don't know enough about the survey, and I'm also not a survey expert. I don't know enough about the survey and the way it was administered to be able to reach a judgment on whether it's a s cientifically sound survey.”[FN43] However, Dr. Haworth and her staff were deeply involved in the design of the survey and made recommendations on how it should be implemented.[FN44] She knew the survey was conducted by attorneys in this litigation,[FN45] although she advised the lawyers for Wal-Mart that having the attorneys conduct surveys was not a good idea,[FN46] “[b]ecause *26a typically it's difficult for an attorney to collect information in a neutral environment so that they truly get a neutral set of information back.”[FN47]
FN41. See Haworth report at the top of page 42, and page 45, Declaration at 93:4-99:4, “The above description of the decision-making process makes it c lear that there are multiple compensation structures and decision-making processes for hourly employees of Div 1 etc.” Also, page 40: (Declaration at 85:20-86:2) “… we must account for the factors used by decision makers at Wal-Mart to set salary levels and we must account for the different compensation decision-making processes found throughout the company.”
FN42. Haworth deposition, page 288, lines 9-13.
FN43. Haworth deposition, page 288, lines 21-25.
FN44. Haworth deposition, pages 267-274.
FN45. Haworth deposition, page 251, lines 7-25.
FN46. Haworth deposition page 254, lines 3-7.

FN47. Haworth deposition, page 254, lines 14-17.
30. Dr. Haworth testified at her deposition that she was aware that the survey violated important principles in survey design listed in the “Reference Manual on Scientific Evidence”[FN48], which she admitted is an authoritative treatise on scientific evidence in her deposition[FN49], and cites in her report.[FN50]
FN48. Reference Manual on Scientific Evidence, 2nd ed, West Group, 2000, page 237-238, and Haworth deposition page 291, lines 1-16.
FN49. Haworth deposition, page 290, lines 20-21.
FN50. Haworth report, page 109, footnote 241. This citation is not included in her Declaration.
31. In explaining how she developed her regression models, and determined which variables to include in those models, Dr. Haworth states: “Second, we need to gain an understanding of the factors that the decision-makers rely upon when determining the pay rates for hourly employees. With the answers to these questions, the researcher is able to construct a statistical model that reflects the actual decision-making process as closely as possible.”[FN51]
FN51. Haworth report, page 41, Declaration at 92:12-15.
*27a She claims to rely on the store manager survey “to gain an understanding of the factors that the decision-makers rely upon when determining the pay rates for hourly employees.” However, Dr. Haworth fails to point out the most important single factor, cited by more store managers than any other factor as playing a role in determining starting hourly pay. The most frequently cited factor was: “The minimum pay established for the job classification by Wal-Mart's pay guidelines.”[FN52] This same factor was also cited most often as being relied upon by store managers in setting promotional pay increases. Thus, company wide pay guidelines were found to be the most important factor that store managers rely upon in setting pay rates and pay increases. This fact is never pointed out in Dr. Haworth's report[FN53], and *28a indeed, contradicts her interpretation that all store subunits operate with different pay structures and decision making processes. Although the store manager survey suffers from serious defects as described in the previous paragraphs, Dr.

Haworth's misinterpretation of the results of this survey undermine the justification she gives for her highly disaggregated models.
FN52. Haworth report, Appendix C-7, (appendix C-16 to her Declaration) and Haworth deposition page 276, lines 9-17. The second most frequently cited factor that Store Managers said they took into account in determining starting pay rates was the “Starting rate in the department in the store at the time the offer is made.” This factor is ‘nonsensical’ because there is no starting pay for a department. The Field Compensation Guidelines indicate there is a starting pay rate for each pay class, regardless of the department. Dr. Haworth agreed that there is no starting pay for a d epartment at her deposition (see page 202 line 10 to page 203 line 3, and page 295 line 19 through page 296 line 8).
FN53. On pages 42-44 of her report,(Declaration 93-98) Dr. Haworth lists the factors included in the manager survey, but does not give the percentages of managers who said they relied on each factor, and she could not give any rationale for how the factors were ordered on the 3 page list, as stated on page 275 of her deposition. The most important factor, “The minimum pay established for the job classification by Wal-Mart's pay guidelines” is listed last on page 44 of her report, and in her Declaration at 98.
Improperly Excludes Hourly Department Heads
32. Dr. Haworth has inexplicably excluded all employees holding hourly Department Head[FN54] positions from her compensation regressions for hourly employees. Department Heads are among the highest paid hourly employees at Wal-Mart. Dr. Haworth's exclusion of approximately 60,000 hourly employees from her analysis appears to be an error. She never mentioned this exclusion in her report or at her deposition, she never criticized my compensation analysis for including these hourly employees, and there is no reason Department Heads should be excluded. This apparent error in her analysis was discovered through examination of her backup materials that included her computer programs and the raw data files used as input for those programs.
FN54. Department Heads are designated by job code = 101.

*29a 33. Dr. Haworth constructed a variable ‘mgrsalever’, among others, for identifying employees she wished to exclude from her compensation regressions for hourly employees.[FN55] The programs used to run her hourly regression analyses include a s tatement which excludes any employee for whom the variable mgrsalever =1. Since Department Heads are identified by job code = 101, and every employee with job code = 101 has the value mgrsalever= 1 in her raw data files, it f ollows that every employee with job code = 101 is excluded by her programs. It appears that her variable mgrsalever was designed to restrict her regressions to employees who “had never been salaried employees during their employment at Wal-Mart” specified at lines 4-5 of page 47 of her report. See Declaration at 101:17-18. For example, there are a small number of employees as of October 2001 (the date Dr. Haworth used for measuring pay rates in her analysis) who were currently in hourly jobs, but who were previously in salary positions such as Store Manager, Co-Manager, or Assistant Manager. Inexplicably, Dr. Haworth sought to exclude such employees, and set the variable mgrsalever = 1 for these former salaried employees. Unlike Department Heads, other employees holding hourly supervisor jobs such as Support Manager (1050), CSM (510) and Lead (910) all have mgrsalever =0, and are included in Dr. *30a Haworth's regressions of hourly employees (unless excluded for some other reason).
FN55. These programs are contained on a C D provided at her April 21, 2003 deposition.
34. If Dr. Haworth intended to include Department Heads in her hourly regressions, but excluded them, then her results are incorrect. On the other hand, if she intended to exclude them, her analysis is not probative. There are an average of about 30 Department Heads per store, and they account for approximately 13% of the hourly employees. As I pointed out in my February report[FN56], women earned about $1800 less than men during 2001, among full-time Department Heads working over 45 weeks. Accordingly, presenting an analysis of compensation for hourly employees excluding Department Heads without giving any explanation is practically useless. After my rebuttal report was served and my second deposition taken, Dr. Haworth, in her Declaration at 101 n. 134, asserts that she has performed “alternative” regressions that purport to correct this error. I have not been provided any back-up material from which I could assess this assertion.
FN56. Drogin report, Table 10.

Arbitrarily Excludes Many Employees from Regressions
35. Aside from Dr. Haworth's exclusion of Department Heads, she also excludes employees from her analysis based upon her use of arbitrary and unexplained restrictions. For example, she has excluded *31a employees from her analysis of hourly employee pay rates if they have ever been demoted while working at Wal-Mart, or had ever been salaried employees during their employment at Wal-Mart.
Improperly Includes Tainted Variables
36. Dr. Haworth includes several tainted variables in her compensation analysis that have the effect of masking gender disparities in pay rates. Dr. Haworth has written in a law review article[FN57] that it is inappropriate to include variables in a model when the values of the variable itself may be influenced by employer discrimination. However, she has included several such variables in her models.
FN57. Notre Dame Lawyer, vol 54:633, on page 656. Ex. 3. Also, see the article “Advanced Statistical Techniques - Compensation Analysis”, page 8, 2nd paragraph from bottom. This page is designated as WMHO1234022 in this litigation. Ex. 4
a. The gender distribution among departments is far from being a random distribution.[FN58] This uneven distribution originates at time of hire[FN59] as a r esult of Wal-Marts' uneven gender assignment to initial department. The initial hire *32a separation by gender is re-enforced by the job posting system, where women are significantly less likely to be promoted into the highly male departments, and significantly more likely to be promoted into the highly female departments[FN60].
FN58. For example, see Table 14 on page 21 of my February report.
FN59. I analyzed the assignment of new hires to departments, and found that women were disproportionately assigned at hire into the 10 d epartments with the highest percent female, and found the disparity to be highly significant (Z= 125.59). This analysis was conducted on all hires at Wal-Mart, using the department at the time of hire, store, year of hire, starting status (pt

or ft).
FN60. See Tables 1a and 1b above.
b. Starting pay rate is another tainted variable Dr. Haworth includes in her analysis. Table 15 on page 23 of my February 2003 report indicates that women are paid less than men at time of hire. That table shows women hired in 1996 were paid between 20 and 40 cents less per hour than men hired in the same job, on the average, for the jobs with the most hires. I have performed a more refined analysis of gender differences in starting pay rate, using Dr. Haworth's data file provided with her backup materials. My analysis shows that initial pay rates for women are less than men's, and this difference is statistically significant.[FN61]
FN61. I compared the starting pay rates of men and women hired into hourly jobs, in the same store, in the same year, in the same starting pay group, and having the same first status (pt/ft), based on Dr. Haworth's raw data file of hourly employees active or on leave as of October 2001. The disparity for this comparison has a Z-value of -71.63, indicating a high degree of statistical significance for the shortfall in female starting pay rates.
c. Dr. Haworth includes among her explanatory factors the variable “whether or not someone has ever worked in a *33a grocery division”. Again, this variable reflects uneven assignment of males to grocery departments, compared to women.[FN62]
FN62. I compared the percent of men to the percent of women who have ever held a grocery job among those included in Dr. Haworth's raw data file of hourly employees active or on leave as of October 2001. The analysis controls for year of hire, and first store, and results in a Z-value of 71.36, indicating a high degree of statistical significance for the pattern that the percent of women who were “ever grocery” is less than the percent for men, based on Dr. Haworth's raw data.
d. Dr. Haworth includes the variable “whether someone was promoted in the past year” in her regressions, but gives no explanation or justification for including this variable. In fact, this is another improperly included tainted variable, since the promotion discrimination is an important issue in the case and my February 2003 report presents several results indicating that the promotion decisions at Wal-Mart

have significant adverse impact on women.
Variables Included in Regressions Without Justification or Explanation
37. Aside from the tainted variables, there are several other variables that Dr. Haworth included in her regression model for which no explanation or justification is presented. These include: Whether or not someone has changed stores at any time during their career; *34a Whether or not someone was hired as part-time or full-time; Whether or not someone's job code is one of the Sales Associate job codes[FN63] ;
FN63. It should be noted that indicators for each Job code are already included as separate variables.
Interaction term between Sales Associate and department; Whether or not someone ever received a p remium for working night shifts; Whether or not someone had ever held secondary job responsibilities; First pay group; Division.
Incorrect Application of Chow Test
38. Dr. Haworth incorrectly applies statistical theory to perform her analysis. She refers to a statistical procedure known as the “Chow Test” to justify her decision to do separate regressions for every subunit of every store.[FN64] The test is named after its author, Gregory C. Chow. His original article is attached as Ex. 4. In fact, the statistical theory on *35a which the Chow Test is based does not justify her conclusion that separate regressions must be run for every store sub-component.
FN64. Page 47 of Haworth report, “A statistical test called a ‘Chow’ test allows us to determine whether there are statistically significant differences between stores with respect to their compensation structures. If the structural differences between stores are statistically significant, then there is also a statistical justification for conducting a separate regression analysis for each store.”

a. The statistically significant results from the Chow Test would indicate only that there might be at least one variable that is different in two or more stores. It does not imply that every variable in every store has a different relationship to pay rate. In fact, the method she employed tells her nothing about which stores or which factors might be different.[FN65] Dr. Haworth's regression implementation is equivalent to assuming that every factor in every store has a different relationship to pay rate. It could be, based on her variables, that only one store is different from other stores.
FN65. Haworth deposition, page 182, lines 15-22.
b. Dr. Haworth did not perform any Chow Tests for studying whether her store sub groupings into each of the specialty divisions are appropriate.[FN66] At her deposition she claimed to have done Chow tests *36a comparing grocery and non-grocery sub-groups, but these are not mentioned in her report, and they were not included in her backup materials.
FN66. At her deposition she could not recall doing any Chow test for testing whether her models differed in any way among specialty departments, and was not certain whether she had done Chow tests, which would have led her to separate grocery and non-grocery. See page 180 lines 25 - page 181 line 4, and page 179 lines 8-19. After her deposition, I was provided with a new disk of data that purported to include grocery/non-grocery chow tests. The date of the output for this analysis indicates that it was done after her deposition.
Fails to Re-Aggregate to Compute Overall Results
39. As explained above, Dr. Haworth separates employees into approximately 7500 subunits, does a separate regression for each subunit, but never reports any measure of disparity resulting from reaggregating her subunits. This is contrary to principles she has espoused in other cases[FN67] and articles[FN68] , where she suggests computing an overall measure of disparity and its statistical significance when an analysis is done separately on independent subunits, as she has done with her regressions in this case. At her deposition, when asked “… did you ever aggregate all the individual results to see if overall there was a s tatistically significant pattern against *37a women?”, she responded “I don't know how to do that - other than to show you the patterns that are here.”[FN69]

FN67. For example, see “Affidavit of Joan Haworth”, sworn on June 14, 1994, in Thomas v. Christopher, on page 3. Ex. 6 Also, see her report “Statistical and Economic Characteristics of Ingles Markets and Workforce” dated April 12, 1998, on page 8, and designated as WMHO1227076 in this litigation. Ex. 7.
FN68. See page 8 of Dr. Haworth's article “Economics and Statistics in the Employment Environment”, designated as WMHO1234043 in this litigation. Ex. 8.
FN69. Haworth deposition, page 231, lines 19-24.
40. In fact, it i s a straightforward statistical exercise to obtain an overall measure of disparity and corresponding measure of statistical significance by properly reaggregating the results computed separately from each of the sub-groups Dr. Haworth has created. Since the subunits include disjoint groups of employees, it's possible to get a (weighted) average of the gender coefficients across the sub-groups. The calculation of the average[FN70] gender coefficient across Dr. Haworth's sub-groups results in an average pay shortfall of $0.12 per hour for hourly employees. The t-value for this disparity is -7.22 indicating a statistically significant result, which would occur with less than 1 chance in 10 to the 11th power by random fluctuation.
FN70. The average gender coefficient is computed by taking the weighted average of the gender coefficients Dr. Haworth found in her individual sub-groups weighted by the number of women in the sub-group. This corresponds to the average dollars per hour women are paid less than men, after controlling for store, all the independent variables Dr. Haworth uses, and also all possible interactions between store and her independent variables. The calculation is made from the backup data files provided by Dr. Haworth, using her results for the model, which do not include starting pay rate as a variable.
41. Thus, the reaggregated results computed from Dr. Haworth's unjustified extreme disaggregating of hourly employees, and using her tainted and *38a unexplained variables, still shows a statistically significant difference in average pay rate for men and women of about $0.12 per hour. This result is consistent with Dr. Haworth's admission at her deposition that in each set of subunits in

Wal-Mart Division 1, Sam's Club, and SuperCenter grocery and non-grocery a majority of the subunits showed pay rate differences adverse to women, both for all regressions, and restricted to those that resulted in statistically significant gender coefficients.[FN71]
FN71. Haworth deposition, page 229 lines 10 through page 231 line 5.
Effects of Her Methodology
42. Dr. Haworth's extreme disaggregating of the employees makes her analysis unable to detect possible important gender differences. There are two types of situations where Dr. Haworth's method will overlook or minimize important disparities. a. There are many cases where men and women holding the same job are separated by their department, as well as other categorical factors Dr. Haworth includes in her models. Where men tend to be placed in departments with higher pay, then differences in pay between men and women in the same job would be attributed to the department variable, not the gender variable. The more variables that are included in the model, the more this situation will occur. *39a b. By doing separate regressions for each store subunit, Dr. Haworth will never detect the situation where men are paid more in one store subunit than women in another store subunit, even though they have identical values for her explanatory factors. Her models would attribute gender pay differences to different “pay structures” in different store subunits, even though no such differences exist.
E. COMPENSATION FOR SALARIED EMPLOYEES
43. In her report, Dr. Haworth presented an analysis of total compensation for Store Managers of Wal-Mart Discount and SuperCenters, and a separate analysis of Managers of Sam's Clubs. She did not present any compensation analysis for Co-Managers and Assistant Managers.
44. Dr. Haworth compensation analysis for Store Managers is defective, because she includes tainted variables that mask the gender differences in earnings. As was noted earlier in this report, my analysis of promotions into Store Manager show that promoted women are disproportionately assigned to smaller stores. Therefore, in analyzing Store Manager compensation, “Square footage of the store”, and “Number of employees at that store” are tainted variables, which mask compensation shortfalls of female

Store Managers. Dr. Haworth also includes the variable “Store profit per square foot” without *40a explanation or any justification why this would be a relevant and gender neutral factor.
I declare under penalty of perjury that the foregoing is true and correct.
Date: July 1, 2003
/s/ Richard Drogin
Richard Drogin
*41a From: Charlyn Jarrells Porter
Sent: Thursday, June 27, 2002 7:45 PM
To: Oneil Clark; Kevin Harper
Subject: Urgent Project
Oneil, Kevin
I need to get someone working immediately on a project of how does an hourly associate know how to get promoted into the management training program. We do not have a poster, brochure, nothing that I am aware of. We may even need to put it on pipeline and capture those that express interest. This will need to be done jointly with People and Training. Let me know your thoughts.
I also want the three of us to discuss using some RPMs as project coordinators as they await an opportunity to go be a district manager. We don't want to increase headcount in training long term. By using RPMs, Kevin can interview and select new RPMs and still have some flexibility on when they come in and leave. I think this will serve all interests. Let's discuss or since I am going on vacation next week, if the two of you want to get together and discuss that will be great. Thanks.
Charlyn Jarrells Porter
Senior Vice President
People/Labor Relations
Wal-Mart Stores, Inc.

Telephone: (479) 273-4456

Fax: (479) 277-0901

WAL-MART CONFIDENTIAL

*42a Sharon M Bilgischer

From: Sharon M Bilgischer

Sent: Monday, July 20, 1998 6:12 PM

To: Andy Wilson; Maxie Carpenter; Scott Northcutt; John Bell; Michael Merrill; Kevin R Harper

Cc: Cole Peterson; Dennis Anderson; Bryan Miller; Paul Beard

Subject: WI Diversity Questions

Below are questions that this week's Walton Institute par-

ticipants asked as part of a diversity discussion:

Q1 We have a large Hispanic customer base. How do we

get more Hispanic people to apply?

A. - At a corporate level we participate in annual job fairs

sponsored by LULAC & USHCC. We also contribute to

the NHSF & Maxie Carpenter sits on the Board of UTPA

and leads the college recruitment team for that campus.

- At a local level, unit managers can partner with Hispanic

organizations in your community, post job openings on

community bulletin boards in Spanish & English, advertise

hiring opportunities in local Hispanic publications & on

Hispanic radio stations.

Q2 How are we addressing our aging workforce as it re-

lates to heavy work as it exist in our clubs?

A. On an individual basis at this time with an understand-

ing that it will become a growing issue. - Partners should

be placed in positions based on their ability meet job ma-

trix requirements. Exceptions should be handled on an

individual basis of reasonable accommodations.

Div 01

SC

SAM's

Unit Mgr. 17.8/9.6

7.8/5.9

8.7/8.5

DM/DO

9.3/8.9

2.0/4.1

9.4/10.9

Regional

4.0/8.0

0/0

20/0

GM

*43a - The need for adjustments to job matrix requirements should be addressed through RPMs as issues arise. Q3 How do we find a balance between getting the diversity we need & still finding the best person for the job? A. Recruitment & development planning. - Expand the pool of candidates from which hiring & promotions are selected to better reflect/represent the customers that we serve. - Ensure developmental opportunities for all associates based on individual qualifications vs stereo types and assumption. Q4 How do we draw the line between hiring for diversity and hiring the best person for the job? A. There is no line to draw. Our direction has always been & continues to be that we hire the most qualified person for the job. We enhance the quality of our workforce by expanding the pool from which we select to ensure we have identified the best person for the job. Q5 How does W-M (diversity) compare to other topnotch companies, i.e. General Electric? A. It varies by level in comparison to very general studies reported by various corporate responsibility watch groups: - total population - very good/excellent - entry level mgmt - good - middle/upper mgmt - needs improvement - board members - very good *44a Q5 Why are there no women at the front table at the (Saturday) morning meeting? A. Historically men have been more aggressive in achieving those levels of responsibility which require a high level of experience. We are experiencing an evolutionary process that must take place in order to achieve orderly and lasting change of representation at the officer level. Q6 Has our percentage of minorities & women in middle & upper mgmt increased/decreased over the past 5 years? A. It has gradually increased. Q7 We would like to know the percentage of females (& minorities) in the following positions: A.

DCs

Private Fleet

3.8/ 8.8

Ops Mgr
Dispatch Mgr (combined GM)
Q8 Why & when will there be more diversity in senior mgmt? A. Given the fact that there is a limited pool of experienced minorities and women to draw from at middle mgmt, based on our history, in addition to the decreasing number at positions available at the upper levels this has led to a slow but steady process. *45a Q9 Why is there no follow-up to ensure stores maintain demographic representation? A. There is ever increasing follow-up & accountability to this issue at the divisional & regional levels that should reach the unit level in the near future. Q10 Has any research been done concerning the feasibility of a daycare system for associates & their children to try to reduce call-ins & turnover at store level? W-M does not necessarily have to provide the space or people, but could possibly help fund the program using an outside service. A. A least two studies have been done in the past. It has been determined that it isn't feasible. We recently participated in a survey with 5 other major retailers. Two of them reported daycare provisions for their corporate personnel only. We are one of three companies that offer discounted services to field personnel. Q11 What other activities or business outside of retail will W-M venture into? A. Quoting David Glass, “We are in the business of buying & selling merchandise.” So we are not likely to diversify our business interest outside of retailing. We have entered an agreement to lease space to Carmike from which we receive a percent of profit from the business they manage in what might otherwise be dark store losses. *46a Q12 What is being done on the front end (of expatriate assignments) to ensure cultural training & global awareness? A. To be answered by a representative from international.
*47A WAL MART
PEOPLE GROUP
[IMAGE] WAL-MART STORES, INC CORPORATE OFFICES 702 S.W. 8TH ST. BENTONVILLE, AR

13.3/ 12.7

18.8/ 16.5 3.6/0

72716-9034
To:
Date:
From: Sharon Bilgischer
Re: Women in Leadership
The mission of Women in Leadership (WIL) is to successfully achieve company goals while promoting the career development of women at all levels within Wal-Mart Stores, Inc. The following information provides a brief history of the group, our current objectives and a membership directory.
The charter members of the Women in Leadership Group are:
Carol Bemis
Terry Bertschy
Debbie Davis Campbell
Claudia Gardner
Sandy Glover
Marie Hughes
Dana King
Lorie Meyer
*48a In the Fall of 1992, when the group began, they identified the following issues, recommendations and responsibilities:
PROFESSIONAL

• Lack of awareness and sensitivity to issues that affect women's image • Perception of compensation and differences (salary, stock options) between men and women • Absence of career development, personal development or career counseling • Fast-Track Programs lack women • Career decisions are made for associates based on gender • Personal upbringing and past experiences determine how women are perceived and treated in the workplace - Aggressive women intimidate men - Men are interviewed as replacements, women are viewed as support - Opportunities are not offered to women, if there is risk of failure - Stereotypes limit the opportunities offered to women • Men's informal network overlooks women - It is not appropriate for men and women to have lunch together - It is not appropriate for men and women to travel together *49a • No female senior management brought in from the outside • Current senior management not reflective of workforce
FAMILY:
• Career decisions are made for associates based on family situations • Performance is judged by time spent in office, instead of productivity • Regularly scheduled meetings are set to begin before 7:30 AM without regard for impact on dual career families • Not enough flexibility in work schedule
RECOMMENDATIONS:
• Assess the depth of the problem through the use of an outside facilitator • Increase AWARENESS to provide an environment that supports equality - Provide Awareness training with attendance by all management levels - Review salaries and stock option offerings for inequities, address problems • Train and Develop - Provide career counseling, career development and personal development training - Perform associate development planning sessions annually *50a - Begin a formal mentoring program for females with

executives - Accelerate growth of high potential females through a fast-track program - Institute effective development programs to grow first and middle managers into areas of responsibility - Provide training on negotiation skills - Provide training on women and men working as colleagues • Promote - Market high potential females across divisions - Advertise the company's success in developing females - Post job opportunities in the home office
WOMEN'S RESPONSIBILITIES:
• Be aware of the image being presented in meetings • Create awareness of career goals by speaking out • Hold sessions among women from various areas to educate each other on attributes and traits needed to get ahead • Support each other through networking • Stand up for your beliefs • Prepare a career plan • Practice self-promotion • Adopt an Executive • Be a mentor *51a • Project a professional image • Be equal, but different • Utilize information technology to demonstrate that flexibility works
One objective of the group continues to be identifying barriers that keep women from achieving their full potential, then taking actions or making recommendations to remove those barriers,
If you are committed to ACTIVELY PARTICIPATE in the development and advancement of yourself and other women at Wal-Mart, then we need you. Our group meets the first Thursday of every month at 4:00 PM in the People Conference Room. Please feel welcome to join us, then if you decide you want to become a member, provide me with your e-mail address and telephone number. If you are not able to attend a meeting, you may contact another member for details of that meeting.
A copy of our current objectives and a directory of members is attached.
*52a Diversity Management® Inc.

Management Development for Measurable Results
To: Wal-Mart Field Trainers
From: Chuck Shelton and Claudia White
Date: November 24th
Topic: Follow-up to October 26th diversity training
We appreciated the opportunity to train with you last month. As promised, we are following up with: 1) Your Project Success Input (page 1) 2) Updated “Diversity Challenges in Wal-Mart Stores” (page 5) 3) A draft document of Wal-Mart's ‘Reasons for Diversity’, focusing on developing and promoting qualified candi-

dates, (page 11) and 4) A DMI bookmark to encourage you.
Analysis of the diversity surveys you completed will come later. Thanks again for your participation, and please contact us if we can help when a d iversity problem or opportunity arises in your work.
1) Project Success Input
The Diversity Project was reviewed with the field trainers, and they were asked to write their answer to two questions: > What will it take for this Diversity Project to succeed? > What will make it hard for this Project to succeed?
*53a SUMMARY - What will it ta ke for this Diversity Project to succeed?

# of Responses 21
15 8
7 3 3

Input
Buy-In and demonstrated commitment among levels in the organization (the most, 7, indicated executive commitment is key)
Open minds and honesty
A clear answer to: What is diversity? Why is it important to the company? What does it have to do with my work?
Diversity education and training for all
Hiring and promoting the most qualified people
Telling diversity stories from inside the company, and include diverse people in this Project

RESPONSES - What will it take for this Diversity Project to succeed?
Open minds
The project must start with the executive level and move down from there
The project needs support at all levels
Upper management must extend an open mind to all opinions and ideas
*54a Everyone must have a fuller understanding of what is involved with diversity
Open minds among all associates

All associates being trained on diversity and its importance
Everyone in stores and in the company to know they are not threatened by diversity but it makes us stronger. This has to come with explanations from Operations.
We will need to have the total support of all upper management within the company
It should be successful because of Wal-Mart's 3 beliefs, and it is already so diverse
A solid buy-in from the rank and file
Must change the view of diversity as another name for affirmative action

We have to honest with each other and ourselves
Support of executive committee, divisional and regional level managers
Education for all levels of management as to what's in it for them financially to embrace diversity
Training (learning) of assistant managers, fresh managers and specialty managers
*55a Management with open minds
Teamwork
Everyone with the same agenda, common goal
Senior management awareness and buy-in, demonstrated when they continue to talk about diversity during every opportunity/meeting
The ability to pry open some minds
A diversity survey that would assess open-mindedness
Everyone keeping an open mind
Everyone needs to understand what diversity is exactly if they don't already
Identifying diversity within our company
Proper education on what diversity is. Diversity is not just what you see but who the person is.
It will have to have more recognition by everyone. We must accept differences first.
Must start at the top and work its way right through the stores
Management staff inside the stores should have diversity that matches the customer and associate base
Buy-in; quit calling it what it is not
*56a Change the mindset that diversity does not mean we have to hire mass quantity of minorities

Hire the most qualified people
More open-mindedness among all
Greater effort to select the best person for the job with diversity a secondary consideration, and more willingness to admit our failures in this aspect
It will take time, commitment and an open mindset among managers
Needs strong support from Operations
Education is essential
Support from RPMs and Operations
Training the management associates to understand it
Realize we aren't trying to change personal beliefs, but state our company, expectation and goal
Buy-in from all aspects of the company; it's great to have this for executives, but we really need to push this information down. Total company buy-in is a necessity.
Educate management and district managers what diversity is and what it is not
*57a Management must actually believe it is not who you know and quotas
Open minds of all who participate
A clear definition of what it is
Bringing in diverse groups of people at same time
Getting this information on diversity up the chain to include not only field management but also our top executives on down to our DMs, Store Managers, Assistant Managers, etc.
The commitment of all involved. Some managers take meetings like this only as window dressing. They have to willing to learn.

SUMMARY - What will make it hard for this Project to

succeed?

# of Responses 10
7 7 5

Input The lack of a clear answer to: What is diversity? Why is diversity important to the company? What does it have to do with my work? A lack of commitment and action Closed minds Perceptions of threat or fear related to: - diversity unfairly limits promotion opportunities for whites - concerns in the rural population

- sexual orientation issues

3

Upper management is all white male, and some of them

are not open to diversity

3

Good ol' boys and old ways of thinking

2

So many associates to reach

Other

Time constraints facing field managers

Getting to the people who need diversity training the

most

*59a The difficulty of managers to understand and manage

*58a RESPONSES - What will make it hard for this

issues around sexual orientation

Project to succeed?

Everyone with different agenda and goals

The good ol' boy philosophy is still strong in the company

The vast number of associates we need to reach

Upper management is not diverse

Close-minded management teams

Lack of knowledge and education about diversity
People who are not open-minded or do not want to try to fully understand
Poor communication tools from Operations to the stores

Old ways of thinking, and the lack of knowledge as to what makes up diversity
A few of the people with the most closed minds are at the top of the corporate ladder. Even though there are only a few, this is where the greatest impact will happen.

The typical white assistant store manager does and will feel that diversity means they will have a harder time being promoted

If everyone does not take hold of the project and take it seriously

How convinced we are in our own beliefs and how used we are to being the information holder and giver

New associates that may view diversity as “race and gender” only

Existing homogeneity of executives Overcoming fears that exist in rural areas

Those who only look at the outward appearance of a person and think that is the only form of diversity and have to meet a “quota”

If everyone is not accepting diversity as the way it should be
Look at our top executives: almost all are white men
The way diversity is viewed
*60a Lack of faith or effort from the field: DMs and managers
Placement/Promotion based only on the fact that “we need a female DM or we need an African-American DM”, rather than them being qualified for the position
It will take time and new levels of comfort and knowledge
Time constraints in the field, where management tends to be too busy
Lack of education and desire
Closed-mindedness, lack of commitment, inaction
Good ol' boys, closed minds
No real buy-in from Operations
Overcome the belief that no problems/issues regarding diversity exist
If this is just a whim it will not succeed. If we only have a small focus group, the rest of the company won't see the benefits.
Not knowing what diversity is beforehand, and negative connotations of diversity
*61a Getting to the people in the company that most need this training
Hard to roll out a program like this in a timely manner to the vast number of people who need it
2) 63 Diversity Challenges in Wal-Mart Stores
All of the following challenges have been provided by Wal-Mart associates; the factual basis or generalizability of these instances has not been verified. In some of these

situations human differences are directly involved, and in other diversity is just one variable.
Associates
Recruit Associates -
How to find good associates in under-employed minority neighborhoods and in a tight labor market
Use a temp service, job fair, and ad in an ethnic-specific newspaper to attract prospects
Help associates involved with hiring to recognize and work effectively with diversity issues (e.g. cultural differences during job interviews, avoiding discrimination when deciding on the ‘fit’ of a candidate)
Recruiting may take unexpected directions: in a Mississippi store with mostly black associates and *62a customers, the personnel manager focused on hiring white and Hispanic men for positions in the front end
Retain Associates -
If new associates drop out during orientation, find out why (there may be diversity-related concerns, like wondering if the store will be a safe place to be black) and improve both recruiting and orientation messages
Conduct exit interviews with associates, inquiring as to whether any dimension of diversity (race, gender, disability, age, sexual orientation, etc.) is part of their decision to leave
Calculate the cost of turnover: how many people have you hired? How many still work at Wal-Mart (usually less than 50%)? Multiply the loss by $1,500.
Develop Associates -
Help associates develop diversity-related insights and skills as part of their job training plan so that they learn how to handle their own diversity challenges
Learn to recognize and reward associates as individuals, taking their cultures into due account
Understand why associates who are alike congregate in the

store (e.g. African-Americans gathering at a lunchroom table, Latinos speaking Spanish when they are together), and how to handle it
*63a Some leaders feel more isolated and at-risk when there are few role models for them (e.g, being the only young female store manager with a baby in an entire region)
Promote Associates -
Conduct performance reviews that address facts and perceptions around diversity challenges and goals. Examples: One female assistant manager said: “For three years running my store manager never told me I wasn't doing a good job, and each year he said that I should be ready for the move up to store manager in 6-12 months. He doesn't seem able to tell me how to improve my performance, so I'm wondering if my promotion won't happen simply because I'm a woman, which I can't improve upon!” Several African-Americans report overhearing a white manager say “we can't let too many darkies get ahead here”
Fact or perception that advancement is not sought by diverse associates: e.g. when women are unwilling to seek advancement because they see how a female store manager or DM is treated
Fact or perception that less-qualified women are being promoted over more-qualified men
*64a Some DMs and Store Managers (e.g. women) have an extra opportunity as a r ole model to encourage others (e.g. women associates) to pursue advancement
Issues around notification of openings: When positions are not posted, or only certain people hear about them or are encouraged to apply, or positions are filled prior to posting, then this hampers aspiration for and pursuit of advancement On the other hand, it has been reported that the new practice of posting openings on the Pipeline is encouraging candidates to explore promotions when they might not have the nerve to tell their store manager about their interest face-to-face
How to encourage people of color and white women to move up: CBL and on-the-job training, enabling them to decide to become a management trainee and to manage their career so they move to department managers, assis-

tant manager, etc.
The glass ceiling is perceived by many women and people of color at the assistant manager level. Many feel like they have to work harder than white men to advance. One stated: “I knew I would never be promoted to store manager under my DM, because I was a woman and everyone knew he didn't think women *65a could manage stores well. So I was aggressive about finding other opportunities”
Female assistant managers report limits on promotions because they cannot do heavy lifting or are seen to delegate too much rather than ‘get in there and roll up your sleeves'
Some DMs who don't have any or very few female store managers don't seem personally comfortable with women in leadership roles, which is more of a problem as the pool of qualified assistant managers diversifies
Wal-Mart Stores, Inc. v. Dukes 2011 WL 686407 (U.S. ) (Appellate Brief )
END OF DOCUMENT

 
 556 F.3d 919 (2009)
Betty DUKES; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellees, v. WAL-MART, INC., Defendant-Appellant.
Betty Dukes; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellants, Wal-Mart, Inc., Defendant-Appellee.
Nos. 04-16688, 04-16720.
United States Court of Appeals, Ninth Circuit.
February 13, 2009.
Debra Gardner, Esquire, Jonathan Smith, Esquire, Baltimore, MD, Irma Dolores Herrera, Esquire, Equal Rights Advocates, City Name, CA, Jocelyn Dion Larkin, Brad Seligman, The Impact Fund, Berkeley, CA, Shauna I. Marshall, Esquire, Hastings College of the Law, Debra Smith, Equal Rights Advocates, Steven L. Stemerman, Esquire, Elizabeth Ann Lawrence, Esquire, Davis Cowell & Bowe, San Francisco, CA, Joseph Sellers, Christine E. Webber, Partner, Deborah J. Vagins, Esquire, Cohen Milstein Sellers & Toll, PLLC, Washington, DC, Stephen Tinkler, Esquire, Tinker & Bennett, Merit Bennett, Esquire, Charles V. Firth, Esquire, Tinker & Firth, Santa Fe, NM, Sheila Thomas, Esquire, Equal Rights Advocates, Oakland, CA, for Plaintiffs-Appellees.
Nancy L. Abell, Esquire, Paul Grossman, Esquire, Paul Hastings Janofsky & Walker LLP, Theodore J. Boutrous, Jr., Esquire, Gail E. Lees, Esquire, Gibson Dunn & Crutcher, LLP, Los Angeles, CA, Katherine Consuelo Huibonhoa, Paul Hastings Janofsky & Walker, LLP, Mark Andrew Perry, Counsel, Gibson Dunn & Crutcher, LLP, San Francisco, CA, Barbara A. Johnson, Esquire, Neal D. Mollen, Esquire, Paul, Hastings, Janofsky & Walker, Washington, DC, for Defendant-Appellant.
Jeffrey A. Berman, Esquire, Sidley Austin LLP, Joel E. Krischer, Esquire, Latham & Watkins, LLP, Los Angeles, CA, Ann Elizabeth Reesman, Esquire, Rae T. Vann, General Counsel, Norris, Tysse, Lampley & Lakis, LLP, Evelyn L. Becker, Esquire, John H. Beisner, Esquire, O'Melveny & Myers LLP, Richard Abbott Samp, Chief Counsel, Washington Legal Foundation, Raymond C. Fay, Esquire, Constantine Cannon LLP, Sandi Farrell, Esquire, Mehri & Skalet, PLLC, Daniel B. Kohrman, Esquire, American Association of Retired Persons, Michael Foreman, Esquire, Lawyers' Committee for Civil Rights, Washington, DC, Terri L. Ross, Esquire, McDermott Will & Emery, New York, NY, Marissa M. Tirona, Esquire, National Employment Lawyers Assoc., Maureen K. Bogue, Esquire, Law Offices, San Francisco, CA, Bill Lann Lee, Esquire, Lewis Feinberg Lee Renaker & Jackson, PC, Oakland, CA, David R. Bruce, Esquire, Law Offices, Santa Rosa, CA, Richard L. Berkman, Esquire, Dechert Price & Rhoads, Philadelphia, PA, for Amicus Curiae.
Mark E. Barton, Esquire, Hersh & Hersh LLP, San Francisco, CA, Joe R. Whatley, Esquire, Whatley Drake & Kallas LLC, New York, NY, for Amicus.
ORDER
KOZINSKI, Chief Judge:
Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
920 *920 Judges McKEOWN, RAWLINSON and BYBEE did not participate in the deliberations or vote in this case.

Save trees - read court opinions online on Google Scholar.

 
 509 F.3d 1168 (2007)
Betty DUKES; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellees, v. WAL-MART, INC., Defendant-Appellant.
Betty Dukes; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellants, v. Wal-Mart, Inc., Defendant-Appellee.
Nos. 04-16688, 04-16720.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 8, 2005. Filed December 11, 2007.
116790123 *1169 *1170 *1171 *1172 *1173 Theodore J. Boutrous, Jr., (argued & briefed) Gibson, Dunn & Crutcher, Los Angeles, CA, for the defendant-appellant-cross-appellee.
Brad Seligman (argued), Jocelyn D. Larkin, The Impact Fund, Berkeley, CA; Joseph M. Sellers, Christine E. Webber, Julie Goldsmith Reiser, Cohen, Milstein, Hausfeld & Toll, Washington, D.C.; Debra Gardner, Public Justice Center, Baltimore, MD; Irma D. Herrera, Debra A. Smith, Equal Rights Advocates, Steve Stemerman, 1174 Elizabeth A. Lawrence, Davis, Cowell & Bowe, LLP, San Francisco, CA; Stephen Tinkler, Charles Firth, Tinkler & *1174 Firth, Merit Bennett, Merit Bennett, P.C., Santa Fe, NM, (briefed) for the plaintiffs-appellees-cross appellants.
Before: HARRY PREGERSON, ANDREW J. KLEINFELD, and HAWKINS, Circuit Judges.
Opinion by Judge PREGERSONI Dissent by Judge KLEINFELD.
ORDER AND OPINION
ORDER
The petition for panel rehearing is DENIED.
The panel's Opinion and Dissent filed February 6, 2007, appearing at 474 F.3d 1214 (9th Cir.2007), are withdrawn. The new Opinion and Dissent are filed concurrently with this Order.
The petition for rehearing en banc is DENIED as moot. The parties may file a new petition for rehearing or suggestion for rehearing en banc as provided for by Federal Rule of Appellate Procedure 40.
OPINION
PREGERSON, Circuit Judge:
Plaintiffs filed a class action suit against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act. The district court certified the class with minor modifications 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 allege that women employed in Wal-Mart stores: (1) are paid less than men in comparable positions, despite having higher performance ratings and greater seniority, and (2) receive fewer 0907 and wait longer for 0907 promotions to instore management 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.
On April 28, 2003, Plaintiffs filed a motion to certify a nationwide class of women who have been subjected to Wal-Mart's allegedly discriminatory pay and promotions policies. The proposed class consists of women employed in a range of Wal-Mart positions 0907 from part-time entry-level hourly employees to salaried managers 0907 and is estimated to include more than 1.5 million women. The class seeks injunctive and declaratory relief, back pay, and punitive damages, but does not seek traditional "compensatory" damages.
Plaintiffs proposed that the district court certify the 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).
1175 *1175 On September 23, 2003, after the parties had conducted extensive discovery and filed copious briefs, the district court heard oral argument. At the hearing, Wal-Mart emphasized the "historic" nature of Plaintiffs' motion, inasmuch as it concerns a class of approximately 1.5 million women who work or worked in one or more of WalMart's 3,400 stores in 41 regions at any time since 1998. The court acknowledged Wal-Mart's concerns but noted that, while the class size was large, the issues were not unusual.
I. DISTRICT COURT PROCEEDINGS
On June 21, 2004, the district court issued an eighty-four-page order granting in part and denying in part Plaintiffs' motion for class certification. See Dukes I, 222 F.R.D. at 187-88. With respect to Plaintiffs' claims for equal pay, the district court granted Plaintiffs' motion as to issues of alleged discrimination and all forms of requested relief. With respect to Plaintiffs' promotion claim, the court's finding was mixed. The court certified the proposed class with respect to issues of alleged discrimination (including liability for punitive damages, as well as injunctive and declaratory relief); however, the court rejected the proposed class with respect to the request for back pay because data relating to the challenged promotions were not available for all class members. Both parties appealed.
II. THE APPEAL
Pursuant to Federal Rule of Civil Procedure 23(f), Wal-Mart appealed, contending that the district court erred by: (1) concluding that the class met Rule 23(a)'s commonality and typicality requirements; (2) eliminating Wal-Mart's ability to respond to individual Plaintiff's claims; and (3) failing to recognize that Plaintiffs' claims for monetary relief predominated over their claims for injunctive or declaratory relief. Plaintiffs cross-appealed, asserting that the district court erroneously limited the backpay relief for many of Plaintiffs' promotion claims.
DISCUSSION
I. STANDARD AND SCOPE OF REVIEW

We review a district court's decision regarding class certification for abuse of discretion. See Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). The district court's decision to certify a class is subject to "very limited" review and will be reversed "only upon a strong showing that the district court's decision was a clear abuse of discretion." Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir.2001) (citation omitted); see also Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir.2005) ("Abuse of discretion is `a highly deferential standard,' under which the appellate court cannot substitute its `view of what constitutes substantial justification for that of the district court'; rather, the review `is limited to assuring that the 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)); Doninger 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 district court's factual findings as to the applicability of Rule 23 criteria are entitled to the traditional deference given to such 1176 determinations. See Local Joint Executive *1176 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, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation."), or use a variety of management devices to address the individualized issues that have arisen, see In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 141 (2d Cir.2001); 1 Newberg on Class Actions § 4.26 at 4-91 to 4-97.[1]
Our review is limited to whether the district court correctly selected and applied Rule 23's criteria. See Bogus v. Am. Speech & Hearing Ass'n., 582 F.2d 277, 289 (3d Cir.1978); Waste Mgmt. Holdings, Inc. v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000) ("An abuse occurs when a court, in making a discretionary ruling, relies upon an improper factor, omits consideration of a factor entitled to substantial weight, or mulls the correct mix of factors but makes a clear error of judgment in assaying them."). Thus, if Plaintiffs demonstrate that they meet Rule 23's requirements, they should be allowed to pursue their action as a class. See Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 40 (1st Cir.2003) ("There is even less reason to decertify a class where the possible existence of individual damages issues is a matter of conjecture.").
II. CLASS CERTIFICATION AND RULE 23
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 typical of the claims or defenses of the class; and (4) the representative 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 following three conditions are satisfied: (1) the prosecution of separate actions would create a risk of: (a) inconsistent or varying adjudications or (b) individual adjudications dispositive of the interests of other members not a party to those adjudications; (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class; or (3) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 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)

1177 The class in this case is broad and diverse. It encompasses approximately 1.5 *1177 million employees, both salaried and hourly, with a range of positions, who are or were employed at one or more of Wal-Mart's 3,400 stores across the country. Plaintiffs contend, and the district court found, that the large class is united by a complex array of company-wide discriminatory practices against women.
1. Numerosity
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 satisfied 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). Commonality focuses on the relationship of common facts and legal issues among class members. See, e.g., 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 3:10 at 271 (4th ed.2002). We noted in Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir.1998):
Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be common to satisfy 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 0907 one significant issue common to the class may be sufficient 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, "plaintiffs 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 evidence 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 corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.
Dukes I, 222 F.R.D. at 166. The court noted that Wal-Mart raised a number of challenges to Plaintiffs' evidence of commonality but concluded that, in fact, most of these objections related not to the Rule 23(a) requirement of commonality but to the ultimate merits of the case and "thus should properly be addressed by a jury considering 1178 the merits" rather than a judge considering class certification. See id. We agree.[2] We further conclude, as *1178 explained in more detail below, that it was within the district court's discretion to find that the commonality prerequisite to class certification was satisfied. See Fed. R.Civ.P. 23(a)(2).

a. "Significant Proof" of a Corporate Policy of Discrimination
Plaintiffs presented four categories of evidence: (1) facts supporting the existence of company-wide policies and practices; (2) expert opinions supporting the existence of company-wide policies and practices; and (3) expert statistical evidence of class-wide gender disparities attributable to discrimination; and (4) anecdotal evidence from class members around the country of discriminatory attitudes held or tolerated 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 headquarters's extensive oversight of store operations, company-wide policies governing pay and promotion decisions, and a strong, centralized corporate culture; (3) consistent gender-related disparities in every domestic region of the company. Such evidence supports Plaintiffs' contention that Wal-Mart 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 Wal-Mart has and promotes a strong corporate culture 0907 a culture that may include gender stereotyping. Dr. Bielby based his opinion on, among other things, Wal-Mart managers' deposition testimony; organizational charts; correspondence, memos, reports, and presentations relating to personnel policy and practice, diversity, and equal employment opportunity issues; documents describing the culture and history of the company; and a large body of social science research on organizational policy and practice and on workplace bias.
Dr. Bielby testified that by employing a "social framework analysis,"[3] he examined the distinctive features of Wal-Mart's policies and practices and evaluated them "against what social science shows to be factors that create and sustain bias and those that minimize bias." In Dr. Bielby's opinion, "social science research demonstrates that gender stereotypes are especially 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 1179 organizational culture, sustains uniformity in personnel policy and practice; (2) that there are *1179 significant deficiencies in Wal-Mart's equal employment policies and practices; and (3) that Wal-Mart's personnel 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 identify a specific discriminatory policy at Wal-Mart. Specifically, Wal-Mart contends that Dr. Bielby's testimony does not meet the standards for expert testimony set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc. ("Daubert I"), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), which held that a trial court must act as a "gatekeeper" in determining whether to admit or exclude expert evidence.
Wal-Mart made an identical argument to the district court and the district court properly rejected it. Wal-Mart did not (and does not) challenge Dr. Bielby's methodology or contend that his findings lack relevance because they "do[ ] not relate to any issue in the case," Daubert, 509 U.S. at 591, 113 S.Ct. 2786, but challenges only whether certain inferences can be persuasively drawn from his data. Because Daubert does not require a court to admit or exclude evidence based on its persuasiveness, but rather, requires a court to admit or exclude evidence based on its scientific reliability and relevance, id. at 587-90, 113 S.Ct. 2786 (evidence is relevant if it has "`any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence'" (citing Fed.R.Evid. 401), and relevance

standard "is a liberal one"), testing Dr. Bielby's testimony for "Daubert reliability" would not have addressed WalMart's objections. It would have simply revealed what Wal-Mart itself has admitted and courts have long accepted: that properly analyzed social science data, like that offered by Dr. Bielby, may add probative value to plaintiffs' class action claims. See Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36, 255, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (considering similar evidence offered by expert social psychologist).
Accordingly, Wal-Mart's contention that the district court was required to subject Dr. Bielby's testimony to the Daubert test, simply because the conclusion he reached seemed unpersuasive absent certain corroborating evidence, is misplaced. See Daubert, 509 U.S. at 595, 113 S.Ct. 2786 ("The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate."). While a jury may ultimately agree with Wal-Mart that, in the absence of a specific discriminatory policy promulgated by Wal-Mart, it is hard to believe, based solely on Dr. Bielby's social science analysis, that Wal-Mart engaged in actual gender discrimination, that question must be left to the merits stage of the litigation. At the class certification stage, it is enough that Dr. Bielby presented properly-analyzed, scientifically reliable evidence tending to show that a common question of fact 0907 i.e., "Does Wal-Mart's policy of decentralized, subjective employment decision making operate to discriminate against female employees?" 0907 exists with respect to all members of the class.[4] This he did and, 1180 thus, we *1180 find no error in the district court's acceptance of Dr. Bielby's evidence to support its finding of commonality.
(3) Statistical Evidence
It is well-established that commonality may be established by raising an inference of class-wide discrimination through the use of statistical analysis. See Caridad, 191 F.3d at 292, overruled on other grounds by In re IPO, 471 F.3d at 39-42; see also Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 278 (4th Cir.1980) (recognizing that statistical data showing 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 regions[5] containing Wal-Mart stores.[6] He concluded that "there are statistically significant disparities between men and women at Wal-Mart in terms of compensation 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 Bendick, Plaintiffs' labor economics expert, conducted a "bench-marking" study comparing Wal-Mart with twenty of its competitors and concluded that Wal-Mart promotes a smaller percentage of women than its competitors.[7]See id.
1181 *1181 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 interchange 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 compensation policies and procedures; (2) the dissemination of Wal-Mart's uniform compensation policies and procedures resulting from the frequent movement of store managers; or (3) Wal-Mart's strong corporate culture. 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 and concluded that his analysis supported Plaintiffs' contention that Wal-Mart's corporate structure and policies led to a "pattern or practice" of discrimination.
Wal-Mart also contends that the district court erred by not finding Wal-Mart's statistical evidence more probative than Plaintiffs' evidence because, according to Wal-Mart, its analysis 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.[8] Moreover, our job on this appeal is to determine whether the district court abused its discretion in finding that, based on all the evidence presented, there existed common questions of fact sufficient to justify class certification. See Armstrong, 275 F.3d at 867; Free Speech Coalition, 408 F.3d at 618. Our job is not to reexamine the relative probativeness of the commonality evidence ourselves. Thus, even if we were to find, based on an independent review of the record, that Wal-Mart's statistical evidence was more persuasive than Plaintiffs' 0907 which we do not, in any event 0907 this alone would not allow us to find that the district court improperly relied on Dr. Drogin's testimony as a valid component of its commonality analysis or that the district court erred in its ultimate conclusion that the commonality prerequisite was satisfied.
Because the district court reasonably concluded that Dr. Drogin's regional analysis was probative and based on well-established scientific principles, because Wal-Mart provided little or no proper legal or factual challenge to it, 1182 [9] and because the district court was within its discretion when it found that Dr. Haworth's evidence 0907 which *1182 was stricken for failing to satisfy the standards of Federal Rules of Evidence 702 and 703[10] 0907 did not undermine or contradict Dr. Drogin's evidence (as Wal-Mart insisted), 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 convincingly to life." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); see also Rudebusch, 313 F.3d at 517. Wal-Mart contends that the district court erred by concluding that the anecdotal evidence, presented by Plaintiffs in the form of 120 declarations, supported a finding of commonality.[11] Wal-Mart maintains that the declarations depict a handful of "widely divergent" events that cannot be deemed probative or representative of discrimination in pay or management-track promotions.
In their declarations, the potential class members testified to being paid less than similarly situated men, being denied or delayed in receiving promotions in a disproportionate manner 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 district 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 suggesting that a plaintiff class submit a statistically significant number of declarations for such evidence to have any value. Further, the district court did not state that this anecdotal evidence 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 combination with the other evidence previously discussed, further supports an inference that [Wal-Mart's] policies and procedures have the effect of discriminating against Plaintiffs in a common 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 evidence suggesting common pay and promotion policies 1183 among Wal-Mart's many stores. See *1183 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. Hoffmann-La Roche, Inc., 924 F.Supp. 1346 (D.N.J.1996), Wal-Mart challenges the latter conclusion, contending that managers' discretionary authority does not support a finding of commonality because "[d]ecentralized, discretionary decisionmaking is not inherently 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 subjectivity, alone, does not necessarily create a common question of fact, where, as here, such subjectivity is part of a consistent corporate policy and supported by other evidence giving rise to an inference of discrimination, courts have not hesitated to find that commonality is satisfied."). Wal-Mart is incorrect, however, that decentralized, subjective decisionmaking cannot contribute to an inference of discrimination. Indeed, courts from around the country have found "[a]llegations of similar discriminatory employment practices, such as the use of entirely subjective personnel processes that operate to discriminate, [sufficient to] satisfy the commonality and typicality requirements of Rule 23(a)." Shipes, 987 F.2d at 316; see also supra note 4 and cases cited therein.
Plaintiffs produced substantial evidence of Wal-Mart's centralized company culture and policies, see Dukes I, 222 F.R.D. at 151-54, thus providing a nexus between the subjective 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 discretion when it held that Wal-Mart's subjective decision-making policy raises an inference of discrimination, and provides support for Plaintiffs' contention that commonality exists among possible class members.
c. Conclusion
Plaintiffs' factual evidence, expert opinions, statistical evidence, and anecdotal evidence demonstrate that WalMart's female employees nationwide were subjected to a single set of corporate policies (not merely a number of independent discriminatory acts) that may have worked to unlawfully discriminate against them in violation of Title VII. Evidence of Wal-Mart's subjective decision making policies provide further evidence of a common practice of discrimination. Many other courts have reached the same conclusion based on similar evidence. See, e.g., Caridad, 191 F.3d at 286, overruled on other grounds by In re IPO, 471 F.3d at 39-42; Staton, 327 F.3d at 955; Shipes, 987 F.2d at 316; Cox, 784 F.2d at 1557; Segar, 738 F.2d at 1276. Accordingly, we conclude that the district court did not abuse its discretion in holding that the "commonality" prerequisite to class certification was satisfied.
1184 *1184 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 typicality finding. However, because Wal-Mart refers, somewhat obliquely, to the typicality factor in its opening brief and because typicality and commonality are similar and tend to merge, see Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364, we conclude that Wal-Mart did not waive its opportunity to challenge the district court's findings with regard to typicality.[12] 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. As discussed below, to satisfy the typicality prerequisite, Plaintiffs must demonstrate that their claims and their class representatives are sufficiently typical of the class.
a. Plaintiffs' Claims Are Sufficiently Typical
Rule 23(a)(3) requires that "the claims or defenses of the representative parties be typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3). We stated in Hanlon that "[u]nder the rule's permissive standards, representative claims are `typical' if they are reasonably coextensive with those of absent class members; they

need not be substantially identical." 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.
Thus, we must consider whether the injury allegedly suffered by the named plaintiffs and the rest of the class resulted from the same allegedly discriminatory practice. See id. We agree with the district court that it did. Even though individual employees in different stores with different managers may have received different levels of pay or may have been denied promotion or promoted at different rates, because the discrimination they allegedly suffered occurred through an alleged common practice 0907 e.g., excessively subjective decision-making in a corporate culture of uniformity and gender stereotyping 0907 their claims are sufficiently typical to satisfy Rule 23(a) (3).
b. Plaintiffs' Representatives Are Sufficiently Typical of the Class
Typicality requires that the named plaintiffs be members of the class they represent. See Falcon, 457 U.S. at 156, 102 S.Ct. 2364. There is no dispute that the class representatives are "typical" of 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 somewhat low-level position.
However, because all female employees faced the same alleged discrimination, the lack of a class representative for each management category does not undermine Plaintiffs' certification goal. See Hartman v. Duffey, 19 F.3d 1185 1459, 1471 (D.C.Cir. *1185 1994) (recognizing that an employee can challenge discrimination in "different job categories where the primary practices used to discriminate in the different categories are themselves similar. While it may be prudent to have the class divided into sub-classes represented by a named plaintiff from each of the differing job categories, it would not be necessary to the validity of the class certification to do so."); Paxton v. Union Nat'l Bank, 688 F.2d 552, 562 (8th Cir.1982) (holding that "[t]ypicality is not defeated because of the varied promotional opportunities at issue, or the differing qualifications of plaintiffs and class members").
In addition, because the range of managers in the proposed 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 sufficient to satisfy the "permissive" typicality requirement. Staton, 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)).
Because Plaintiffs' claims and Plaintiffs' representatives are sufficiently typical of the class, the district court acted within its discretion when it found that Plaintiffs satisfied the typicality prerequisite.
4. Adequate Representation
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.
Before the district court, Wal-Mart argued that Plaintiffs cannot satisfy this factor because of a conflict of interest between female in-store managers who are both plaintiff class members and decision-making agents of WalMart. 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 employees. 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 representatives and counsel are adequate, we need not analyze this factor.

5. Conclusion
Based on the evidence before it, which the district court rigorously examined, see Falcon, 457 U.S. at 161, 102 S.Ct. 2364; Chamberlan v. Ford Motor Co., 402 F.3d 952, 962 (9th Cir.2005), we conclude that the district court did not abuse its discretion when it found that the Rule 23(a) elements were satisfied.
B. Rule 23(b)
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). 1186 [13] The district court agreed with Plaintiffs. See Dukes I, 222 *1186 F.R.D. at 170 ("Resolution of this issue is governed by Molski v. Gleich, 318 F.3d 937 (9th Cir.2003), which holds that (b)(2) class actions can include claims for monetary damages so long as such damages are not the `predominant' relief sought, but instead are `secondary to the primary claim for injunctive or declaratory relief.'"). Wal-Mart contends that the district court merely "paid lip service" to Rule 23(b)(2) and erred in certifying the class under Rule 23(b)(2) because claims for monetary relief predominate over claims for injunctive and declaratory relief.
Rule 23(b)(2) is not appropriate for all classes and "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." Fed.R.Civ.P. 23(b)(2), Adv. Comm. Notes to 1966 amend., 39 F.R.D. 69, 102; see also Zinser, 253 F.3d at 1195 ("Class certification under Rule 23(b)(2) is appropriate only where the primary relief sought is declaratory or injunctive."). In Molski we refused to adopt a bright-line rule distinguishing between incidental and nonincidental damages for the purposes of determining predominance because such a rule "would nullify the discretion vested in the district courts through Rule 23." Molski, 318 F.3d at 950. Instead, we examine the specific facts and circumstances of each case, focusing predominantly on the plaintiffs' intent in bringing the suit. See id.; Kanter v. Warner-Lambert Co., 265 F.3d 853, 860 (9th Cir.2001); Linney v. Cellular Alaska P'ship, 151 F.3d 1234, 1240 n. 3 (9th Cir. 1998). At a minimum, however, we must satisfy ourselves that: "(1) even in the absence of a possible monetary recovery, reasonable plaintiffs would bring the suit to obtain the injunctive or declaratory relief sought; and (2) the injunctive or declaratory relief sought would be both reasonably necessary and appropriate were the plaintiffs to succeed on the merits." Robinson, 267 F.3d at 164, quoted with approval in Molski, 318 F.3d at 950 n. 15.
1. Wal-Mart's "Unrebutted" Evidence Does Not Undermine Plaintiffs' Claim That Injunctive and Declaratory Relief Predominate
Wal-Mart first asserts that the district court "failed to even evaluate" Rule 23(b)'s requirement that the challenged conduct be generally applicable to the class. Wal-Mart maintains that its "unrebutted" statistics demonstrate that there is no evidence of pervasive discrimination that would justify injunctive relief and that, therefore, the "challenged conduct" does not affect all members. However, Wal-Mart's contention is not persuasive. As explained above, Wal-Mart's evidence was rebutted by Plaintiffs to the extent that Plaintiffs' evidence and theories remain viable at this pre-merits analysis stage. Further, the issue before us is whether Plaintiffs' primary goal in bringing this action is to obtain injunctive relief; not whether Plaintiffs will ultimately prevail. See Molski, 318 F.3d at 950. Consequently, Wal-Mart cannot derive support from this argument.
2. The Size of Plaintiffs' Damages Request Does Not Undermine Plaintiffs' Claim That Injunctive and Declaratory Relief Predominate
Wal-Mart contends that monetary claims necessarily predominate because this case involves claims that may amount to billions of dollars. However, such a large amount is principally a function of Wal-Mart's size, and the predominance test turns on the primary goal of the litigation 0907 not the theoretical or possible size of the damage award. As the district court stated,

1187

[F]ocusing on the potential size of a punitive damage award would have the *1187 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 purposes of Title VII.

Dukes I, 222 F.R.D. at 171. Because Wal-Mart has not shown that the size of the monetary request undermines Plaintiffs' claim that injunctive and declaratory relief predominate, we find that Wal-Mart's argument fails.

3. A Request for Backpay Does Not Undermine Plaintiffs' Claim That Injunctive and Declaratory Relief Predominate

Wal-Mart asserts that Plaintiffs' request for backpay weighs against certification because it proves that claims for monetary relief predominate. The district court reasoned that backpay "is recoverable as an equitable, makewhole 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 "equitable" or not, is still a form of monetary relief.

While the district court was correct in labeling back pay as an equitable remedy available under Title VII, see 42 U.S.C. § 1981a(a) (referencing 42 U.S.C. § 2000e-5(g)), any suggestion that back pay's status as an equitable remedy somehow prevents it from also being a form of monetary relief for purposes of Rule 23(b)(2) is incorrect. Back pay is certainly not of an "injunctive nature or of a corresponding declaratory nature," Fed. R. Civ. Proc. 23 (b)(2), advisory committee's notes, and thus Plaintiffs' request for back pay weighs against certification under Rule 23(b)(2), its equitable nature notwithstanding.

That a request for back pay weighs against Rule 23(b)(2) certification, however, does not mean that certification under this rule is improper whenever back pay is requested. If it did, then the principal category of cases contemplated by the advisory committee as being certifiable under Rule 23(b)(2) 0907 i.e., "actions in the civil-rights field where a party is charged with discriminating unlawfully against a class," Fed. R. Civ. Proc. 23(b)(2), advisory committee's notes 0907 would no longer be eligible for (b)(2) certification unless the class members agreed to forego the back pay remedy Congress specifically made available to discrimination victims under Title VII. This nonsensical result would not only thwart legislative intent, but it would also put discrimination victims to the Hobson's choice of having to settle for only a partial remedy in order to proceed as a class action or having to bear the enormous costs of an individual lawsuit in order to receive the make-whole "injunction plus back pay" remedy authorized by Title VII. It is unlikely the Congress that approved both Rule 23(b)(2) and 42 U.S.C. § 1981a intended to put discrimination victims to such a choice.

Accordingly, while Plaintiffs' request for back pay does weigh against class certification under Rule 23(b)(2), the district court did not abuse its discretion when it concluded, like many courts before it, that this discrimination class action was certifiable under Rule 23(b)(2) notwithstanding Plaintiffs' prayer for back pay relief. See, e.g., Eubanks v. Billington, 110 F.3d 87, 92 (D.C.Cir.1997) ("[I]t is not uncommon in employment discrimination cases for the class . . . to seek monetary relief in the form of back pay or front pay, [in addition to injunctive or declaratory relief, and still be certified under Rule 23(b)(2)]"). As Molski requires, we are satisfied that, "even in 1188 the absence of a *1188 possible [back pay] recovery, reasonable plaintiffs would bring the suit to obtain" an injunction against Wal-Mart's discriminatory employment practices and that such injunctive relief "would be both reasonably necessary and appropriate [if] the plaintiffs . . . succeed on the merits." Molski, 318 F.3d at 950 n. 15.

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 beyond the back pay just discussed, 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 inconsistent" with Rule 23(b)(2) certification. This view, however, has not been adopted by this circuit and, if adopted, would thwart congressional intent for the same reasons as discussed with respect to Plaintiffs' request for back pay.[14] Specifically, it would be non-sensical to prevent victims of particularly egregious

discrimination from simultaneously proceeding as a class action under Rule 23(b)(2) 0907 which was specifically designed to facilitate discrimination class actions 0907 and seeking the punitive damages provided for under Title VII. See 42 U.S.C. § 1981a(a)(1). Therefore, we find that the district court acted within its discretion when it concluded that Plaintiffs' claims for punitive damages do not predominate over their 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, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994) (suggesting that provisions allowing plaintiffs to opt-out of damages claims may be appropriate where plaintiffs move to certify a class 1189 bringing a claim for punitive damages). We note that a district court's discretion to include an opt-out provision *1189 is well-established. See, e.g., In re Monumental Life Ins. Co., 365 F.3d at 417 (noting that district courts have discretion to order notice and opt-out rights when certifying a Rule 23(b)(2) class); Robinson, 267 F.3d at 165-67 (recognizing that notice and opt-out can be afforded (b)(2) class members with respect to non-incidental damage claims); Jefferson, 195 F.3d at 898-99.
5. Class Certification May Not be Proper as to Class Members Who Were Not Wal-Mart Employees as of the Date Plaintiffs' Complaint Was Filed
Wal-Mart's final contention is that, because a substantial number of the putative class members no longer work for Wal-Mart 0907 and, thus, no longer have standing to seek injunctive or declaratory relief 0907 injunctive and declaratory relief cannot possibly predominate over monetary relief for purposes of certifying this class under Rule 23(b)(2).
We agree with Wal-Mart to this extent: those putative class members who were no longer Wal-Mart employees at the time Plaintiffs' complaint was filed do not have standing to pursue injunctive or declaratory relief. See Walsh v. Nev. Dep't of Human Res., 471 F.3d 1033 (9th Cir.2006) (recognizing that former employees lack standing to seek injunctive relief because they "would not stand to benefit from an injunction requiring the anti-discriminatory policies [to cease] at [their] former place of work"); Am. Civil Liberties Union of Nev. v. Lomax, 471 F.3d 1010, 1015 (9th Cir.2006) ("When evaluating whether [the standing] elements are present, we must look at the facts `as they exist at the time the complaint was filed.'" (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 569 n. 4, 112 S.Ct. 2130, 119 L.Ed.2d 351 (internal quotation marks omitted))). Under these circumstances, it is difficult to say that, "even in the absence of a possible monetary recovery, reasonable plaintiffs [who lack standing to seek injunctive or declaratory relief] would [nonetheless] bring th[is] suit to obtain the injunctive or declaratory relief sought." Molski, 318 F.3d at 950 n. 15 (quoting Robinson, 267 F.3d at 164).
This does not mean that the entire class must fall. Those putative class members who were still Wal-Mart employees as of June 8, 2001 (when Plaintiffs' complaint was filed) do have standing to seek the injunctive and declaratory relief requested in the complaint, see Lomax, 471 F.3d at 1015, and we are satisfied that these putative class members would reasonably bring this suit to put an end to the practices they complain of "even in the absence of a possible monetary recovery." We are also satisfied that, if these plaintiffs ultimately succeed on the merits, an injunction or declaratory judgment preventing Wal-Mart from continuing to engage in unlawful gender-based employment discrimination "would be both reasonably necessary and appropriate." Molski, 318 F.3d at 950 n. 15 (quoting Robinson, 267 F.3d at 164). Moreover, for the reasons explained in Parts II.B.1-II.B.4, we are confident that the primary relief sought by these plaintiffs remains declaratory and injunctive in nature notwithstanding their request to also be "made whole" in a monetary sense to the full extent provided for under Title VII. Accordingly, class certification under Rule 23(b)(2) was appropriate at least as to these plaintiffs.

We thus remand to the district court for a determination of the appropriate scope of the class in light of the above observation and in light of any evidence presented to it regarding which putative class members were still WalMart employees as of June 8, 2001.
1190 *1190 III. CLASS ACTION CAN PROCEED IN A WAY THAT IS BOTH MANAGEABLE AND IN ACCORDANCE WITH DUE PROCESS
The parties agree that this is the largest class certified in history. The district court was cognizant of this when it concluded that the class size, although large, was not unmanageable. See Dukes I, 222 F.R.D. at 173. Indeed, the district court acknowledged that, "while courts possess wide discretion to flexibly respond to manageability issues that may arise during the course of a class action, see, e.g., Blackie v. Barrack, 524 F.2d 891, 906, n. 22 (9th Cir.1975), this Court must be confident that such issues will not be of such a magnitude as to defy its ability to oversee this case in a responsible and reasonable manner." Dukes I, 222 F.R.D. at 173. After "giv[ing] these matters considerable thought and deliberation," the district court concluded that, with one minor exception,[15] "the size of the class would not present undue obstacles to managing" this class action. Id.
To demonstrate the manageability of the class action, the district court outlined a trial plan based, in large part, on how other courts have handled similarly large and complex class action suits.[16] Wal-Mart and a number of amici[17] contend that at least some aspects of this trial plan violate their due process rights, as well as section 1191 706(g)(2) of Title VII,[18] the Rules Enabling Act,[19] and the Supreme *1191 Court's decision in Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977).
At this pre-merits stage, we express no opinion regarding Wal-Mart's objections to the district court's tentative trial plan (or that trial plan itself), but simply note that, because there are a range of possibilities 0907 which may or may not include the district court's proposed course of action 0907 that would allow this class action to proceed in a manner that is both manageable and in accordance with due process, manageability concerns present no bar to class certification here.
For example, in Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767, 782-87 (9th Cir.1996), the district court employed the following procedure to determine the amount of compensatory damages due the plaintiffs in a large class action:[20]
In all, 10,059 claims were received. The district court ruled 518 of these claims to be facially invalid, leaving 9,541 claims. From these, a list of 137 claims was randomly selected by computer. This number of randomly selected claims was chosen on the basis of the testimony of James Dannemiller, an expert on statistics, who testified that the examination of a random sample of 137 claims would achieve "a 95 percent statistical probability that the same percentage determined to be valid among the examined claims would be applicable to the totality of claims filed." . . .
The district court then appointed Sol Schreiber as a special master (and a court-appointed expert under Rule 706 of the Federal Rules of Evidence). Schreiber supervised the taking of depositions . . . of the 137 randomly selected claimants. . . .
Schreiber then reviewed the claim[s] . . . [and] recommended that 6 claims of the 137 in the sample be found not valid. . . .
Schreiber then recommended the amount of damages to be awarded to the 131 [remaining] claimants. . . .
Based on his recommendation that 6 of the 137 claims in the random sample (4.37%) be rejected as invalid, he recommended the application of a five-per-cent invalidity rate to the remaining claims. . . . He recommended that the award to the class be determined by multiplying the number of valid remaining claims . . . by the average award recommended for the . . . claims. . . . By adding the recommended awards . . ., Schreiber arrived at a recommendation for a total compensatory damage award. . . .

1192

A jury trial on compensatory damages was [then] held. . . . Dannemiller testified that the selection of the random sample met the standards of inferential statistics, that the successful efforts to locate and obtain testimony from the claimants in the random sample "were of the highest standards" in his profession, that the procedures followed conformed to the standards of inferential statistics, and that the injuries of the random-sample claimants were representative of the class as a whole. Testimony from the 137 random-sample claimants and their witnesses was introduced. Schreiber testified as to his recommendations, and his report was supplied to the jury. The jury was instructed that it could accept, modify or reject Schreiber's *1192 recommendations and that it could independently, on the basis of the evidence of the random-sample claimants, reach its own judgment as to the actual damages of those claimants and of the aggregate damages suffered by the class as a whole.

The jury deliberated for five days before reaching a verdict. Contrary to the master's recommendations, the jury found against only two of the 137 claimants in the random sample. As to the sample claims, the jury generally adopted the master's recommendations, although it did not follow his recommendations in 46 instances. As to the claims of the remaining class members, the jury adopted the awards recommended by the master. The district court subsequently entered judgment for 135 of the 137 claimants in the sample in the amounts awarded by the jury, and for the remaining plaintiffs . . . in the amounts awarded by the jury, to be divided pro rata.

Hilao, 103 F.3d at 782-84 (footnotes omitted).

On appeal, the Hilao court was presented with some of the same objections to its trial plan as Wal-Mart presents here.[21] After a lengthy discussion, however, the Hilao court rejected these challenges and approved of the trial
plan, addressing the due process issue as follows:

While the district court's methodology in determining valid claims is unorthodox, it can be justified by the extraordinarily unusual nature of this case. "`Due process,' unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria and Restaurant Workers Union, Local 473 v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 6 L.Ed.2d 1230 . . . (1961). . . .

The interest of the [defendant] that is affected is at best an interest in not paying damages for any invalid claims. . . . The statistical method used by the district court obviously presents a somewhat greater risk of error in comparison to an adversarial adjudication of each claim, since the former method requires a probabilistic prediction (albeit an extremely accurate one) of how many of the total claims are invalid. . . . Hilao's interest in the use of the statistical method, on the other hand, is enormous, since adversarial resolution of each class member's claim would pose insurmountable practical hurdles. The "ancillary" interest of the judiciary in the procedure is obviously also substantial, since 9,541 individual adversarial determinations of claim validity would clog the docket of the district court for years. Under the balancing test set forth in Mathews [v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976),] and [Connecticut v.] Doehr[, 501 U.S. 1, 111 S.Ct. 2105, 115 L.Ed.2d 1 (1991)], the procedure used by the district court did not violate due process.

Hilao, 103 F.3d at 786-87 (footnote omitted).

Because we see no reason why a similar procedure to that used in Hilao could not be employed in this case,[22] 1193 we conclude *1193 that there exists at least one method of managing this large class action that, albeit
somewhat imperfect, nonetheless protects the due process rights of all involved parties.[23] Accordingly, we find no manageability-based reason to find this otherwise-certifiable class unsuited to class certification.

CONCLUSION
For the reasons set forth above, we hold that the district court acted within its broad discretion in concluding that it would be better to handle this case as a class action instead of clogging the federal courts with innumerable individual suits litigating the same issues repeatedly. The district court did not abuse its discretion in finding the pleading requirements of Rule 23 satisfied, at least as to those Plaintiffs who were still Wal-Mart employees on June 8, 2001. Wal-Mart failed to point to any specific management problems that would render a class action impracticable in this case, and the district court has the discretion to modify or decertify the class should it become unmanageable. Although the size of this class action is large, mere size does not render a case unmanageable.
We deny Plaintiffs cross-appeal, because the district court did not abuse its discretion when it found that back pay for promotions may be limited to those Plaintiffs for whom proof of qualification and interest exists. Finally, we must reiterate that our findings relate only to class action procedural questions; we neither analyze nor reach the merits of Plaintiffs' allegations of gender discrimination.
AFFIRMED.
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. The majority's new opinion does not solve the problems of its previous opinion. Class action certification still violates Rule 23, likely deprives many women who have been discriminated against of the money they are entitled to, and deprives Wal-Mart of its constitutional rights to jury trial and due process of law.
Class actions may not be brought in federal court unless they satisfy, among other things, the criteria of Federal Rule of Civil Procedure 23(a):
(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.[1]
1194 *1194 These criteria are called, for short: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.[2] In the somewhat analogous case of General Telephone Co. of the Southwest v. Falcon,[3] the Supreme Court held that class certification had been inappropriate, where a Mexican-American who was not promoted had been allowed to sue on behalf of all Mexican-American applicants for employment. The Court held that the Rule 23 requirements apply fully to Title VII class actions, and rejected the "`tacit assumption' underlying the [rejected] across-the-board rule that `all will be well for surely the plaintiff will win and manna will fall on all members of the class.'"[4]
In this case, the only one of the four Rule 23 requirements that is satisfied is "numerosity." In seeking to represent as large a class as imaginable, plaintiffs have destroyed their commonality, typicality, and adequacy of representation, as in many other attempted class certifications that have over-reached.[5]
This class lacks "commonality" because the questions "common to the class"[6] are insubstantial. The only common question plaintiffs identify with any precision is whether Wal-Mart's promotion criteria are "excessively subjective." This is not a commonality with any clear relationship to sex discrimination in pay, promotions or terminations. Plaintiffs' sociologist claims merely that a subjective system is "vulnerable" to sex discrimination. But the Supreme Court recognized in Watson v. Fort Worth Bank & Trust that, although disparate impact analysis may be usable in subjective criteria cases, "leaving promotion decisions to the unchecked discretion of lower level supervisors should itself raise no inference of discriminatory conduct"[7] because "[i]t is self-evident that many jobs . . . require personal qualities that have never been considered amenable to standardized testing."[8] "Vulnerability" to sex discrimination is not sex discrimination.

Plaintiffs' only evidence of sex discrimination is that around 2/3 of Wal-Mart employees are female, but only about 1/3 of its managers are female. But as the Supreme Court recognized in Watson, "[i]t is entirely unrealistic to assume that unlawful discrimination is the sole cause of people failing to gravitate to jobs and employers in accord with the laws of chance."[9] Not everybody wants to be a Wal-Mart manager. Those women who want to be managers may find better opportunities elsewhere. Plaintiffs' statistics do not purport to compare women who 1195 want to be managers at Wal-Mart with men who want to be managers at Wal-Mart, just *1195 female and male employees, whether they want management jobs or not.
This class lacks "typicality" because "the claims or defenses of the representative parties" are not "typical of the claims or defenses of the class."[10] Plaintiffs must show "the existence of a class of persons who have suffered the same injury" as themselves.[11] There are seven named plaintiffs.[12] Here they are, with the gist of the claims they make in the complaint:
Betty Dukes African American female promoted to manager, then demoted in retaliation for discrimination complaints. Did not apply for several slots filled by African American females, African American males, Hispanic female, Filipino male, and Caucasian male because she was discouraged by discrimination against women.
Patricia Surgeson Sexually harassed, replaced by a male who got a better title and more money, denied management opportunities, quit.
Cleo Page Quickly promoted to manager, but denied a department manager position after being told it's "a man's world." A "Caucasian female" got the department manager position. Page later got a different department manager position. But a "Caucasian male," a "Latina," and a "Caucasian female" got other management positions she sought and she got paid less than a "Caucasian male" with less seniority.
Chris Kwapnoski Sought management positions given to less qualified men. Manager made 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 was never promoted, even though "qualified." Males got promotions that were not ed.
Edith Arana African American woman. Sought management position but never promoted. Store manager told her he "did not want women." Fired after "falsely accused of `stealing time'" in retaliation for her discrimination complaints.
"Typicality" exists only if these seven women's claims are "typical of the claims or defenses of the class."[13] They are not even typical with respect to each other, let alone with respect to the class of "[a]ll women employed at any Wal-Mart domestic retail store at any time since December 26, 1998 who have been or may be subjected to Wal-Mart's challenged pay and management track promotions policies and practices." Some of the seven named plaintiffs and members of the putative class work for Wal-Mart, some have quit, some have been fired. 1196 Some claim sex discrimination, some claim mixed motive race and sex discrimination, some appear *1196 to claim only race discrimination. Some claim retaliation, and some appear to claim unfairness but not discrimination. Some of the seven plead a prima facie case, some do not.
Nor are the defenses to the claims likely to be common even as to these seven, let alone all female employees. Some are likely to be vulnerable to defenses such as misconduct, some are not. For example, Wal-Mart's defense to Arana's claim might be that she really did steal time, or that Wal-Mart fired her because the manager concluded in good faith after reasonable investigation that she stole time. For Dukes, the obvious potential defense is that they did promote her to manager and hoped for the best, but she did not do well. For Kwapnoski,

the defense may be no defense at all, just a money settlement and promotion. We cannot know how the individual cases may proceed, but we can easily tell from the complaint that they will be different from each other as to both the claims and the defenses. Whatever the "vulnerability" to sex discrimination of the "corporate culture" of this national corporation with no centralized system for promotion, the various Plaintiffs' claims and Wal-Mart's defenses against them do not resemble one another.[14]
The fourth requirement under Rule 23 is that the seven named plaintiffs "will fairly and adequately protect the interests of the class."[15] The majority opinion and the district court give this little attention, no doubt because everyone knows that the lawyers, being without real clients who can instruct them if a class is certified, will run the case as they choose. Based on their own descriptions of the wrongs done to them in the complaint, the interests of the seven named plaintiffs diverge from each other, as will the interests of other members of the class. Women who still work at Wal-Mart and who want promotions have an interest in the terms of an injunction. But an injunction and declaratory judgment cannot benefit women who have quit or been fired and do not want to return. For them, compensatory and punitive damages are what matter. Those who are managers, and many Wal-Marts have female store managers, have interests in preserving their own managerial flexibility under whatever injunction may issue, while those who are not and do not want to be managers may not share this concern. Those who face strong defenses, such as if they did indeed steal time or money, have a considerable interest in a fast, mass settlement, while those who have impressive performance records have an interest in pushing their individual cases to trial.
The class certification we are reviewing is pursuant to Federal Rule of Civil Procedure 23(b)(2). That is error because 23(b)(2) certification is only available when injunctive and declaratory relief "predominate."[16] Injunctive and declaratory relief cannot possibly "predominate" for the women who will benefit from neither, because they no longer work at Wal-Mart and have no desire to return. The majority now acknowledges that these class members lack standing to sue for declaratory and injunctive relief, yet leaves it to the district court to decide whether they can stay in the class. For the whole class, the complaint seeks punitive damages, and for a class this big, one would expect the claim to be in the billions of dollars, like a tobacco or oil spill case.
1197 It is risible to say that injunctive and declaratory relief "predominate," even for *1197 those who do have standing to seek such relief. The majority says punitive damages do not predominate because it would "thwart congressional intent" if a defendant guilty of egregious sex discrimination were not punished. That may be so, but it has nothing to do with whether the claim for declaratory and injunctive relief predominates. For anyone but the richest people in the world, billions of dollars are going to predominate over words and solemn commands and promises about how to behave in the future. What Wal-Mart cashier or stocker would care much about how the district court told Wal-Mart to run its business after getting enough cash to quit?
Even worse than the Rule 23 violations, the district court's management plan for this class action violates WalMart's constitutional rights to due process and jury trial. The district court order establishes a first phase of the case in which a jury will determine liability (including liability for punitive damages and an injunction) on a classwide basis, without adjudicating the merits of any class member's claim. Then in a second phase, a "special master" will determine Wal-Mart's total front and back pay for the women discriminated against on the basis of some unspecified generally applicable formula.[17]
Both phases of this plan are constitutionally defective because they are inadequately individualized.[18] There will never be an adjudication, let alone an adjudication by an Article III judge and a jury, to determine whether Wal-Mart owes any particular woman the money it will be required to pay, nor will any particular woman ever get a trial to establish how much she is owed. Wal-Mart will never get a chance, for example, to prove to a jury that Dukes was tried as a manager and did not perform well, or that Arana did indeed steal time or at least that after a good faith investigation Wal-Mart fired her for that nonpretextual reason. Under both the Seventh Amendment[19] and the statute applicable to punitive damages in Title VII cases,[20] Wal-Mart is entitled to trial by jury of these issues.
Nor is there a legitimate way for the jury or court to decide upon a punitive damages award, since the jury will never make a compensatory damages award. It is now firmly established that the Due Process Clause constrains

punitive damages to a ratio of punitive damages to compensatory damages,[21] and that the ratio can rarely 1198 exceed a nine to one ratio.[22]*1198 Yet compensatory damages will never be determined here. After the punitive
damages have already been awarded, a special master will decide upon whatever lost pay may be awarded, by formula rather than examination of individual cases. We have explained that "in a multi-plaintiff, multi-defendant action, an approach that compares each plaintiff's individual compensatory damages with the punitive damages awards against each defendant more accurately reflects the true relationship between the harm for which a particular defendant is responsible, and the punitive damages assessed against that defendant."[23] In this case, a ratio analysis will not be possible because punitive damages will be unanchored to compensatory damages.[24]
In its first opinion, the majority explicitly approved of the district court's trial plan in the face of the Due Process deprivations. In this second opinion, the majority "express[es] no opinion regarding Wal-Mart's objections to the district court's" scheme and finds it sufficient to "note" that "there are a range of possibilities 0907 which may or may not include the district court's proposed course of action 0907 that would allow this class action to proceed in a manner that is both manageable and in accordance with due process." Wal-Mart has appealed precisely the unconstitutionality in the district court's order, so it is incumbent upon us to correct it.
The majority seeks cover under Hilao v. Estate of Ferdinand Marcos,[25] where we allowed a class action against the dictator of the Philippines for victims of disappearances, torture, and summary executions. Assuming that that case was correctly decided,[26] this one is distinguishable. The victims of sex discrimination by Wal-Mart can obtain individual counsel where they live and do not face the problems of proving injuries suffered in a foreign country. Hilao included a plan to have a "random sample of 137 claims" go to jury trial,[27] while in this case no individual cases will go to trial. And in Hilao, a jury award of compensatory damages would be made[28] and would provide the information necessary for the constitutionally required "ratio analysis."[29]
1199 *1199 There are serious reasons for these rules constraining class actions. Class actions need special justification because they are "an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only."[30] They are designed largely to solve an attorneys' fees problem. "The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor."[31] That need does not pertain here. Much of the bar now earns a living by litigating sex discrimination claims. Many sex discrimination cases satisfy the three elements that make a contingent fee case worth accepting, good liability, high damages potential, and collectibility of a judgment, sweetened by the lagniappe of statutory attorneys fees awards.[32] These features of individual sex discrimination cases "eliminate financial barriers that might make individual lawsuits unlikely or infeasible,"[33] so women discriminated against by WalMart do not need a class action. They can, with contingent fee agreements, afford to hire their own lawyers and control what the lawyers do for them.
Women employed by Wal-Mart who have suffered sex discrimination stand to lose a lot if this sex discrimination class action goes forward. All the members of the class will be bound by the judgment or settlement because, under Rule 23, the judgment "shall include" all class members, "whether or not favorable to the class."[34] What if the plaintiffs' class loses? Worse, for many women in the class, what if the plaintiffs win? Women who have suffered great loss because of sex discrimination will have to share the punitive damages award with many women who did not. Women entitled to considerable compensatory damages in addition to lost pay will be deprived of them. Women who have left Wal-Mart will get injunctive and declaratory relief of no value to them, while new female Wal-Mart employees will benefit from the injustice done to other women. If the settlement is mostly words for the women and money for the lawyers, a realistic possibility, it will be a pyrrhic victory indeed.
A lawyer representing a class is in practical effect a lawyer without a client. Clients as principals compel their lawyers as agents to serve their interests. Without individual clients to control what they do, the lawyers have a powerful financial incentive to settle the case on terms favorable to themselves, but not necessarily favorable to their unknown clients with varying individual circumstances that are unknown to their purported lawyers.

The absence of any real clients to control them leaves the lawyers free to pursue their own earnestly held views about the public good generally. They will doubtless have their own views, which they will try to get into an injunction, such as about how Wal-Mart ought to manage its stores, how it should train and promote employees, 1200 and how and whether Wal-Mart ought to be unionized, even though these social *1200 views may be of little interest to many of the women they purport to represent. Counsel will also have a practical interest in maximizing attorneys' fees. Wal-Mart will have an interest in agreeing to enough lawyers' fees so that the terms of an injunction to which plaintiffs' counsel will agree will be less onerous. True, the parties must obtain judicial approval of a settlement, but that is not much of a substitute for client control. The judge has a very considerable incentive to clear the docket of a case so large and complex as to be almost untriable, and the judge also will know nothing of the individual circumstances and needs of the 1.5 million members of the class. Nor, in a proposed settlement urged upon the judge by both the plaintiffs' and the defendant's lawyers, will the judge have the benefit of adversarial presentations, except perhaps from those typically and disapprovingly called "gadfly" opponents of the settlement. A class action settlement is "a bargain proffered for its approval without benefit of adversarial investigation."[35]
None of these burdens to justice need be borne in this case. No class action is necessary to obtain justice for women wronged by sex discrimination at Wal-Mart, because there is no attorneys' fees barrier to their obtaining individual justice. Plenty of lawyers make good livings litigating sex discrimination cases for contingent fees.
The district court calls this class certification "historic,"[36] a euphemism for "unprecedented." In the law, the absence of precedent is no recommendation. This class certification violates the requirements of Rule 23. It sacrifices the rights of women injured by sex discrimination. And it violates Wal-Mart's constitutional rights. The class action may be useful for punishing Wal-Mart and shifting much of its management to the lawyers and special master negotiating and supervising the injunction. But it is not useful for doing justice between Wal-Mart and women against whom it may have discriminated because of their sex. And that is what lawsuits are for.
The district court's formula approach to dividing 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. Compensatory damages will be forfeited. This is "rough justice"[37] indeed. "Rough," anyway. Since when were the district courts converted into administrative agencies and empowered to ignore individual justice?
[1] As the district court acknowledged, Dukes I, 222 F.R.D. at 143, although federal courts are no longer permitted to engage in "conditional certification," Fed. R. Civ. Proc. 23, advisory committee's notes (2003 amends.), district courts retain the authority to amend or decertify a class if, based on information not available or circumstances not anticipated when the class was certified, the court finds that either is warranted.
[2] Of course, we recognize that courts are not only "at liberty to" but must "consider evidence which goes to the requirements of Rule 23 [at the class certification stage] even [if] the evidence may also relate to the underlying merits of the case." Hanon v. Dataproducts Corp., 976 F.2d 497, 509 (9th Cir.1992). If the district court had rejected Wal-Mart's arguments regarding commonality solely because they overlapped with "merits issues," that would have been error. However, as we explain in the following sections, the district court did not do this but, instead, conducted a "rigorous analysis" of the conflicting evidence presented on the commonality question and ultimately concluded that the commonality prerequisite was satisfied. See Falcon, 457 U.S. at 161, 102 S.Ct. 2364; Hanon, 976 F.2d at 509.
[3] For a description of the "social framework analysis," see John Monahan and Larry Walker, Social Science in the Law: Cases and Materials (4th ed.1998).
[4] As discussed further infra Part II.A.2.b, this court and many others have held that "delegation to supervisors, pursuant to company-wide policies, of discretionary authority without sufficient oversight . . . gives rise to common questions of fact warranting certification of the proposed class." Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 286 (2d Cir.1999), overruled on other grounds by In re Initial Public Offering Sec. Litig. ("IPO"), 471

F.3d 24, 39-42 (2d Cir.2006). See, e.g., id.; Staton v. Boeing Co., 327 F.3d 938, 955 (9th Cir.2003) (rejecting argument that "decision-making at Boeing is too decentralized to permit a class that combines plaintiffs from disparate locales"); Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir.1993) (upholding commonality finding where all of company's plants "utilized the same subjective criteria in making personnel decisions"); Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546, 1557 (11th Cir.1986) (holding that "[a]llegations of similar discriminatory employment practices, such as . . . [the] use of entirely subjective personnel processes that operated to discriminate, would satisfy the commonality and typicality requirements of Rule 23(a)")(quoting Carpenter v. Stephen F. Austin State Univ., 706 F.2d 608, 617 (5th Cir.1983)); Segar v. Smith, 738 F.2d 1249, 1276 (D.C.Cir.1984) (explaining that "subjective criteria may well serve as a veil of seeming legitimacy behind which illegal discrimination is operating").
[5] Each region contains approximately 80 to 85 stores.
[6] Regression analyses, in general terms, provide estimates of the effect of independent variables on a single dependent variable. See Hemmings v. Tidyman's, Inc., 285 F.3d 1174, 1183-84 & n. 9 (9th Cir.2002). The purpose 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 nondiscriminatory independent variables (e.g., education, experience, performance, etc.), the results will indicate whether any salary disparities are attributable to gender (thereby raising an inference 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 statistical tool . . . designed to isolate the influence of one particular factor 0907 [e.g.,] sex 0907 on a dependent variable 0907 [e.g.,] salary." (citation omitted)).
[7] Specifically, Dr. Bendick compared, or "benchmarked," Wal-Mart against twenty other similar general merchandise retailers by comparing workforce data provided by the companies to the Equal Employment Opportunity Commission ("EEOC"). Dukes I, 222 F.R.D. at 164. Dr. Bendick analyzed the data to determine the extent to which women in the relevant market sought promotion, so that an inference could be made that roughly the same percentage of women would have sought promotion at 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.
[8] This means that Dr. Haworth ran separate regression analyses for: (1) each of the specialty departments in the store, (2) each grocery department in the store, and (3) the store's remaining departments. She did not run regression analyses to examine pay differential between male and female salaried employees.
[9] For example, although Wal-Mart maintains that the district court erred by not requiring Dr. Drogin to perform a "Chow test" to determine whether data could be properly aggregated, we have not found a single case suggesting or requiring use of such a test.
[10] In addition to her sub-store analysis, Dr. Haworth conducted a survey of store managers. After reviewing the survey and its methodology, the district court concluded that the store manager survey was biased both "on its face" and in the way that it was conducted. Dukes II, 222 F.R.D. at 196-97 (noting that the survey's results "are not the `product of reliable principles and methods,' and therefore are not the type of evidence that would be `reasonably relied upon by experts'" (quoting Fed.R.Evid. 702, 703)). Dr. Haworth's disaggregated analysis created pools too small to yield any meaningful results. Wal-Mart has not appealed this issue. Accordingly, this evidence is not properly before us. See Kohler v. Inter-Tel Tech., 244 F.3d 1167, 1179 n. 8 (9th Cir.2001) (recognizing that appellant waived a claim by failing to raise it in her briefs).
[11] Plaintiffs submitted declarations from each of the class representatives, as well as 114 declarations from putative class members around the country. See Dukes I, 222 F.R.D. at 165.
[12] Although the "commonality and typicality requirements of Rule 23(a) tend to merge," see Falcon, 457 U.S. at 157 n. 13, 102 S.Ct. 2364, 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.
[13] The purported class need only satisfy one of Rule 23(b)'s prongs to be sustainable. See Zinser, 253 F.3d at 1186.
[14] Wal-Mart cites to two cases, Williams v. Owens-Illinois, Inc., 665 F.2d 918, 928-29 (9th Cir.1982), and Zinser, 253 F.3d at 1195, for the proposition that this circuit will not certify a class action that involves punitive damages. However, Williams and Zinser do not support Wal-Mart's contention. Rather, this court merely held that it was not an abuse of discretion to deny class certification based on the specific facts presented in those cases. See Williams, 665 F.2d at 929 (holding that damages requests were not incidental to the request for injunctive relief where requested compensatory damages were not clearly compatible with class injunctive relief); Zinser, 253 F.3d at 1195 (finding that a request for medical monitoring claims against manufacturer of pacemaker cannot be categorized 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).
[15] This one exception related to Plaintiffs' promotion claim. The district court determined that it would be unmanageable to fashion a remedy for the subset of the class for whom objective applicant data did not exist. See Dukes I, 222 F.R.D. at 183. We agree with the district court's analysis and resolution of this issue.
[16] The trial plan described by the district court involved two stages. In Stage I, Plaintiffs would attempt to prove that Wal-Mart engaged in a pattern and practice of discrimination against the class via its company-wide employment policies. If Plaintiffs were successful in this regard, they would also attempt to prove an entitlement to punitive damages, which would require proof that Wal-Mart's pattern and practice of discrimination "was undertaken maliciously or recklessly in the face of a perceived risk that defendant's actions would violate federal law." Dukes I, 222 F.R.D. at 174. If Plaintiffs prevailed in Stage I, the case would move to Stage II, the remedy phase. The first task in Stage II would be to fashion class-wide injunctive relief. The second task would be to calculate and distribute the back pay award. As to Plaintiffs' promotional claim, a formula would be used to calculate the "lump sum" in back pay that Wal-Mart owes to the class (a procedure similar to that employed in Domingo v. New England Fish Co., 727 F.2d 1429, 1444-45 (9th Cir.1984)). As to Plaintiffs' equal pay claim, the court would examine Wal-Mart's employment records to determine which class members were victims of this form of discrimination (and how much in back pay each is owed) to determine a second "lump sum" owed by Wal-Mart. Dukes I, 222 F.R.D. at 174-186. A separate procedure would then be used to distribute these lump sums to those class members entitled to share in them 0907 a stage in which Wal-Mart would no longer have an interest. Id. at 179 n. 49.
[17] The panel was favored with an extraordinary variety of amicus briefs that were both thoughtful and helpful to the panel in its deliberations.
[18] This section says that "[n]o order of the court shall require . . . the payment to [a person] of any back pay, if such individual . . . was refused employment or advancement or was suspended or discharged for any reason other than [unlawful] discrimination" and that, "[o]n a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court . . . shall not award damages." Title VII, § 706(g)(2), codified at 42 U.S.C. § 2000e-5(g)(2).
[19] This statute says that the Federal Rules of Civil Procedure, including Rule 23 regarding class actions, "shall not abridge, enlarge or modify any substantive right. All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect." 28 U.S.C. § 2072.
[20] Hilao was a 10,000 + plaintiff class action filed by Philippine nationals and their descendants who were allegedly victims of torture, summary execution, and "disappearance" at the hands of Ferdinand E. Marcos, the Philippines' former president.
[21] For example, the defendant in Hilao argued that the trial plan "violated its rights to due process because `individual questions apply to each subset of claims, i.e., whether the action was justified, the degree of injury, proximate cause, etc.'" 103 F.3d at 785.

[22] We note that this procedure would allow Wal-Mart to present individual defenses in the randomly selected "sample cases," thus revealing the approximate percentage of class members whose unequal pay or nonpromotion was due to something other than gender discrimination. The "invalid claim rate" revealed by this process would, as it did in Hilao, come very close to the invalid claim rate one would expect to find among the entire class.
[23] We do not suggest that this is the only conceivable way in which this class action could lawfully progress. Indeed, the district court may want to consider whether a more limited "test case" procedure similar to that employed in In re TMI Litig. Consol. Proceedings, 927 F.Supp. 834, 837 & n. 5 (M.D.Pa. 1996), would aid the parties in evaluating the strength of their respective claims.
And, of course, the option proposed by the district court may also remain viable; indeed, it appears that a number of circuits have approved of similar trial plans in discrimination cases. See, e.g., Segar, 738 F.2d at 1291 (explaining why a similar trial plan did not violate § 706(g)(2) of Title VII and commenting that, "[i]f effective relief for the victims of discrimination necessarily entails the risk that a few nonvictims might also benefit from the relief, then the employer, as a proven discriminator, must bear that risk"); see also Shipes, 987 F.2d at 316-19; Catlett v. Mo. Highway & Transp. Comm'n, 828 F.2d 1260, 1266-67 (8th Cir.1987). We point to the Hilao procedure above solely because this circuit has already considered and approved of that procedure in a decision we are bound to follow.
[1] Fed.R.Civ.P. 23(a).
[2] Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003).
[3] 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
[4] Id. at 161, 102 S.Ct. 2364 (quoting Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1127 (5th Cir.1969) (Godbold, J., specially concurring)).
[5] Cooper v. S. Co., 390 F.3d 695, 715 (11th Cir.2004) ("Where, as here, class certification was sought by employees working in widely diverse job types, spread throughout different facilities and geographic locations, courts have frequently declined to certify classes.") (citations omitted); see also Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565 (6th Cir.2004); Stastny v. So. Bell Tel. & Tel. Co., 628 F.2d 267 (4th Cir.1980).
[6] Fed.R.Civ.P. 23(a)(2).
[7] 487 U.S. 977, 990, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988).
[8] Id. at 999, 108 S.Ct. 2777.
[9] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988).
[10] Fed.R.Civ.P. 23(a)(3); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
[11] Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
[12] The plaintiffs' names add up to seven: Dukes, Surgeson, Arana, Williamson, Gunter, Kwapnoski, Cleo. The district court and the majority say there are six named plaintiffs. One not concerned with individual justice may not care about one woman more or less, but in our system we must and do.
[13] Fed.R.Civ.P. 23(a)(3); Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997).
[14] See Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 572-73 (6th Cir.2004).
[15] Fed.R.Civ.P. 23(a)(4).

[16] E.g., Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir.2003); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.1998).
[17] Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 180 (D.Cal.2004).
[18] See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998) ("[W]e hold that the Seventh Amendment provides a right to a jury trial on all issues pertinent to an award of statutory damages . . . including the amount itself."); Cimino v. Raymark Industries, Inc., 151 F.3d 297, 311 (5th Cir.1998) (finding Seventh Amendment and due process violations where district court's trial plan for class action did not allow individual determinations of liability and damages).
[19] See Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 355, 118 S.Ct. 1279, 140 L.Ed.2d 438 (1998).
[20] 42 U.S.C. § 1981a(c)(1).
[21] See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); White v. Ford Motor Co., 500 F.3d 963 (9th Cir.2007); Bains LLC v. Arco Prods. Co., 405 F.3d 764 (9th Cir.2005); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir.2003).
[22] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) ("[F]ew awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."). See also Bains LLC v. Arco Prods. Co., 405 F.3d 764, 777 (9th Cir.2005) and Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1044 (9th Cir.2003) (holding 7 to 1 ratio constitutional in discrimination case).
[23] Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of Life Activists, 422 F.3d 949, 961 (9th Cir.2005). Indeed, it is now clear that punitive damages cannot be awarded to one plaintiff in order to punish the defendant for harm caused to others. Philip Morris USA v. Williams, ___ U.S. ___, 127 S.Ct. 1057, 1063, 166 L.Ed.2d 940 (2007).
[24] See White v. Ford Motor Co., 500 F.3d 963, 973-74 (9th Cir.2007) (due process does not require jury instruction regarding constitutional ceiling for punitive damages provided court will have information necessary to conduct ratio analysis on appeal).
[25] 103 F.3d 767, 782-87 (9th Cir.1996).
[26] Cf. Cimino v. Raymark Industries, Inc., 151 F.3d 297, 319 (5th Cir.1998) (suggesting that Hilao is incorrect and stating that "we find ourselves in agreement with the thrust of the dissenting opinion there").
[27] Hilao v. Estate of Marcos, 103 F.3d 767, 782-84 (9th Cir.1996).
[28] The special master first examined the sample cases, and made recommendations as to claim validity and damages awards to the jury, which made the final determination as to both. Id. at 783-84. No such procedure is suggested here.
[29] See White v. Ford Motor Co., 500 F.3d 963, 973-74 (9th Cir2007).
[30] Califano v. Yamasaki, 442 U.S. 682, 700-701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979).
[31] Amchem Prods. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (1997)).
[32] 42 U.S.C. § 2000e-5(k).
[33] Allison v. Citgo Petroleum Corp., 151 F.3d 402, 420 (5th Cir.1998).

[34] Fed.R.Civ.P. 23(c)(3). [35] Amchem Pros., Inc. v. Windsor, 521 U.S. 591, 621, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). [36] Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 142 (D.Cal.2004). [37] Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 177 (D.Cal.2004) (deciding "that this `rough justice' is better than the alternative of no remedy at all for any class member").
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 474 F.3d 1214 (2007)
Betty DUKES; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellees, v. WAL-MART, INC., Defendant-Appellant.
Betty Dukes; Patricia Surgeson; Cleo Page; Deborah Gunter; Karen Williamson; Christine Kwapnoski; Edith Arana, Plaintiffs-Appellants, v. Wal-Mart, Inc., Defendant-Appellee.
Nos. 04-16688, 04-16720.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 8, 2005. Filed February 6, 2007.
12125678901 *1215 *1216 *1217 *1218 *1219 *1220 *1221 Theodore J. Boutrous, Jr., (argued & briefed) Gibson, Dunn & Crutcher, Los Angeles, CA, for the defendant-appellant-cross-appellee.
Brad Seligman (argued), The Impact Fund, Berkeley, California, and Elizabeth A. Lawrence, Steve Stemerman, Davis, Cowell & Bowe, LLP, San Francisco, CA. Christine E. Webber, Joseph M. Sellers, Julie Goldsmith Reiser, Cohen, Milstein, Hausfeld & Toll, PLLC, Washington, D.C., Irma D. Herrera, Debra A. Smith, Equal Rights Advocates, San Francisco, CA, Stephen Tinkler, Charles Firth, Tinkler & Firth, Santa Fe, NM, Debra Gardner, Public Justice Center, Baltimore, MD, Merit Bennett, Merit Bennett, P.C., Santa Fe NM and Jocelyn D. Larkin, The Impact Fund (briefed), for the plaintiffs-appellees-cross-appellants.
Terri L. Ross, McDermott Will & Emery LLP, New York, NY, for the amicus curiae.
Marissa M. Tirona, National Employment Lawyers Association, San Francisco, CA, 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.
Daniel B. Kohrman, AARP Foundation Litigation, Washington, DC, for the amici curiae.
1222 *1222 Jeffrey A. Berman, Sidley Austin Brown & Wood, Los Angeles, CA, and Bill Lann Lee, Lieff, Cabraser, Heimann & Bernstein, LLP, San Francisco, CA, for the amici curiae.
Richard A. Samp, Washington Legal Foundation, Washington, DC, for the amicus curiae.
Evelyn L. Becker, O'Melveny & Meyers LLP, Washginton, DC, for the amicus curiae.
Before HARRY PREGERSON, ANDREW J. KLEINFELD, and MICHAEL DALY HAWKINS, Circuit Judges.
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 modifications 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 performance ratings and greater seniority, and (2) receive fewer 0907 and wait longer for 0907 promotions to in-store management 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 compensatory damages on behalf of the class, which is estimated to include more than 1.5 million women. The class encompasses women employed in a range of Wal-Mart positions 0907 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 court clearly 1223 stated that its decision *1223 would be limited to procedural 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 discrimination 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 damages) as well as injunctive and declaratory relief. However, the court denied Plaintiffs' request for certification with respect to backpay because data relating to challenged promotions were not available for all class members. Both parties appealed.
II. THE APPEAL
Pursuant to Federal Rule of Civil Procedure 23(f), Wal-Mart appealed, contending that the district court erred by: (1) concluding that the class met Rule 23(a)'s commonality and typicality requirements; (2) eliminating Wal-Mart's ability to respond to individual Plaintiff's claims; and (3) failing to recognize that Plaintiffs' claims for monetary relief predominated over their claims for injunctive or declaratory relief. Plaintiffs cross-appealed, asserting that the district court erroneously limited the backpay relief for many of Plaintiffs' promotion claims.

DISCUSSION
I. STANDARD AND SCOPE OF REVIEW
We review a district court's decision regarding class certification for abuse of discretion. See Staton v. Boeing Co., 327 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 deferential standard,' under which the appellate court cannot substitute its `view of what constitutes substantial justification for that of the district court'; rather, the review `is limited to assuring that the 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)); Doninger v. Pac. Nw. Bell, Inc., 564 F.2d 1304, 1309 (9th Cir.1977) ("[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 district 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, 1224 872 n. 28 (9th Cir.2001). If later evidence disproves Plaintiffs' contentions that common issues *1224 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, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) ("Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation."), or use a variety of management devices, 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 existence of individual damages issues is a matter of conjecture.").
II. CLASS CERTIFICATION AND RULE 23
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 typical of the claims or defenses of the class; and (4) the representative 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 following three conditions are satisfied: (1) the prosecution of separate actions would create a risk of: (a) inconsistent or varying adjudications or (b) individual adjudications dispositive of the interests of other members not a party to those adjudications; (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class; or (3) the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and a class action is superior to other available methods for the fair and efficient adjudication of the controversy. 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
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 satisfied here, given that both parties estimate that the proposed class includes approximately 1.5 million women.
1225 *1225 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). Commonality focuses on the relationship of common facts and legal issues among class members. See, e.g., 1 Herbert B. Newberg & Alba Conte, Newberg on Class Actions § 3:10 at 271 (4th ed.2002). We noted in Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir.1998):
Rule 23(a)(2) has been construed permissively. All questions of fact and law need not be common to satisfy 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 0907 one significant issue common to the class may be sufficient 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, "plaintiffs 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 evidence 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 corporate culture; (2) statistical evidence of gender disparities caused by discrimination; and (3) anecdotal evidence of gender bias. Together, this evidence raises an inference that Wal-Mart engages in discriminatory practices in compensation and promotion that affect all plaintiffs in a common manner.
Dukes I, 222 F.R.D. at 166. The court noted that Wal-Mart raised a number of challenges to Plaintiffs' evidence of commonality 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 challenge below.
a. "Significant Proof" of a Corporate Policy of Discrimination

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 discrimination; and (4) anecdotal evidence from class members around the country of discriminatory attitudes held or tolerated 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 headquarter's extensive oversight of store operations, company-wide policies governing pay and promotion 1226 decisions, and a strong, centralized *1226 corporate culture; (3) consistent gender-related disparities in every domestic region of the company; and (4) gender stereotyping. Such evidence supports Plaintiffs' 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 Wal-Mart has and promotes a strong corporate culture 0907 a culture that may include gender stereotyping. Dr. Bielby based his opinion on, among other things, Wal-Mart managers' deposition testimony; organizational charts; correspondence, memos, reports, and presentations relating to personnel policy and practice, diversity, and equal employment opportunity 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 science research demonstrates that gender stereotypes are especially 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 employment policies and practices; and (3) that Wal-Mart's personnel 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 identify a specific discriminatory policy at Wal-Mart. Specifically, Wal-Mart contends that Dr. Bielby's testimony does not meet the standards for expert testimony set forth in Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharm., Inc. ("Daubert I"), 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (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. WalMart ("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 1227 probabilities, in `coulds' and *1227 `mights.'" United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir.1993).
The district court noted that Wal-Mart's challenges 0907 specifically its challenge that Dr. Bielby failed to identify specific stereotyping policies or incidents 0907 "are of the type that go to the weight, rather than the admissibility, of the evidence." 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, 94 S.Ct. 2140, 40 L.Ed.2d 732 (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 maintained 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.").
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 certification] stage of the proceedings." Thomas & Thomas Rodmakers, 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 Daubert motion is typically not made until later stages in litigation . . . 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 methodology, acknowledging what courts have long accepted 0907 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, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (considering similar evidence offered by an expert social psychologist); Fed.R.Evid. 702 (recognizing that "scientific, technical, or other specialized 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 clarifies that certainty is not required for an expert's findings to have probative value. See Price Waterhouse, 490 U.S. at 235-36, 109 S.Ct. 1775 (allowing social psychologist's testimony that the defendant 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 stereotyping"); 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 did apply at the certification stage, however, Dr. Bielby's testimony 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 knowledge and experience of [the relevant] discipline." Daubert I, 509 U.S. at 592, 113 S.Ct. 2786.
1228 *1228 (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 regions[3] containing Wal-Mart stores.[4] He concluded that "there are statistically significant disparities between men and women at Wal-Mart in terms of compensation 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 Bendick, 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 work-force 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 interchange 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 1229 company-wide *1229 control over Wal-Mart's uniform compensation policies and procedures; (2) the

dissemination of Wal-Mart's uniform compensation policies and procedures resulting 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 analysis 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 proposed class, not whether the evidence ultimately will be persuasive" to the trier of fact. In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d at 135 (emphasis added).[7] Thus, it 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 conflicting 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 1230 testimony could not be *1230 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 relevant 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 probative than Plaintiffs' at the certification stage.
Because the district court reasonably concluded that Dr. Drogin's regional analysis was probative and based on well-established scientific principles, and because Wal-Mart provided 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 convincingly to life." Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 97 S.Ct. 1843, 52 L.Ed.2d 396 (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, presented by Plaintiffs in the form of 120 declarations, supported a finding of commonality.[9] Wal-Mart maintains that the declarations depict a handful of "widely divergent" events that cannot be deemed probative or representative of discrimination in pay or management-track promotions.
In their declarations, the potential class members testified to being paid less than similarly situated men, being denied or delayed in receiving promotions in a disproportionate manner 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 district 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 suggesting that a plaintiff class submit a statistically significant number of declarations for such evidence to have any value.
Further, the district court did not state that this anecdotal evidence 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 combination with the other evidence previously discussed, further supports an inference that [Wal-Mart's] policies and procedures have the effect of discriminating against Plaintiffs in a common 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.
1231 *1231 b. Subjective Decision-Making
As discussed above, the district court found substantial evidence 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. Hoffmann-La Roche, Inc., 924 F.Supp. 1346 (D.N.J.1996), Wal-Mart challenges the latter conclusion, contending that managers' discretionary authority does not support a finding of commonality because "[d]ecentralized, discretionary decision-making is not inherently 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 subjectivity, alone, does not necessarily create a common question 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 centralized company culture and policies, see Dukes I, 222 F.R.D. at 151-54, which provides a nexus between the subjective 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 discretion when it held that Wal-Mart's subjective decision-making policy raises an inference of discrimination, and provides support for Plaintiffs' contention that commonality exists among possible class members.
c. Conclusion
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 court did not abuse its discretion in holding that Plaintiffs satisfied 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 1232 by failing to offer specific objections to the district court's typicality finding. However, *1232 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, 102 S.Ct. 2364, we conclude that Wal-Mart did not waive its opportunity to challenge 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 identical." 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.
We must consider whether the named plaintiffs allegedly suffered injury from a specific discriminatory practice by the employer in the same manner that the members of the proposed class did, and whether the named plaintiffs and the remaining class members suffered a similar injury from a general 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 0907 e.g., excessively subjective decision-making in a corporate culture of uniformity and gender stereotyping 0907 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 representatives are reasonably coextensive 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.
However, the lack of a class representative for each management category does not undermine Plaintiffs' certification goal because all female employees faced the same discrimination. See Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994) (recognizing that an employee can challenge discrimination in "different job categories 1233 where the primary practices used to *1233 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 promotional opportunities at issue, or the differing qualifications of plaintiffs and class members").
In addition, because the range of managers in the proposed 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 sufficient to satisfy the "permissive" typicality requirement. Staton, 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)).
Because Plaintiffs' claims and Plaintiffs' representatives are sufficiently typical of the class, the district court acted within its discretion when it found that Plaintiffs satisfied the typicality factor.
4. Adequate Representation
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.
Before the district court, Wal-Mart argued that Plaintiffs cannot satisfy this factor because of a conflict of interest between female in-store managers who are both plaintiff class members and decision-making agents of WalMart. 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 employees. 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 representatives and counsel are adequate, we need not analyze this factor.
5. Conclusion
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)
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 1234 monetary *1234 damages so long as such damages are not the `predominant' relief sought, but instead are `secondary to the primary claim for injunctive or declaratory relief.'"). Wal-Mart contends that the district court merely "paid lip service" to Rule 23(b)(2) and erred in certifying the class under Rule 23(b)(2) because claims for monetary relief predominate over claims for injunctive and declaratory relief.
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 non-incidental 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 determining predominance for the purposes of Rule 23(b)(2) certification. 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); Linney 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 conduct be generally applicable to the class. Wal-Mart maintains that its "unrebutted" statistics demonstrate that there is no evidence of pervasive discrimination that would justify injunctive relief and that, therefore, the "challenged conduct" does not affect all members. However, Wal-Mart's contention is not persuasive. As explained above, Wal-Mart's evidence was rebutted by Plaintiffs to the extent that Plaintiffs' evidence and theories remain viable at this pre-merits analysis stage. Further, the issue before us is whether Plaintiffs' primary goal in bringing this action is to obtain injunctive relief; not whether Plaintiffs will ultimately prevail. See Molski, 318 F.3d at 950. Consequently, Wal-Mart cannot derive support from this argument.
2. 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 0907 as Rule 23(b)(2) requires 0907 because many of the class members are no longer employed by Wal-Mart. However, there is little support for this contention. The Advisory Committee Notes to Rule 23(b)(2) state that the subsection "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, settling 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, stopping the illegal behavior is vital to the interests of the class as a whole.
1235 Here, not only do the plaintiffs, current and former employees alike, state their *1235 common intention as ending Wal-Mart's allegedly discriminatory practices, but logic also supports their declared intent.[12] It is reasonable that plaintiffs who feel 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 suffering 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
Wal-Mart contends that monetary claims necessarily predominate because this case involves claims that may amount to billions of dollars. However, such a large amount is principally a function of Wal-Mart's size, and the predominance test turns on the primary goal of the litigation 0907 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 purposes 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 WalMart for its allegedly "reckless disregard of the rights of its women employees to equal employment opportunity, 1236 and to deter similar misconduct by Wal-Mart and other large retailers in the future." Dukes *1236 I, 222 F.R.D. at 170. Wal-Mart contends that Plaintiffs' request for punitive damages is "wholly inconsistent" with Rule 23(b)(2) certification. This view, however, has not been adopted by this circuit.[13] Rather, Molski states 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 intention in bringing this case was to obtain injunctive and declaratory relief 0907 not money damages 0907 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, 114 S.Ct. 1359, 128 L.Ed.2d 33 (1994) (suggesting that provisions allowing

plaintiffs to opt-out of damages claims may be appropriate where plaintiffs move to certify a class bringing a claim for punitive damages). We note that a district court's discretion to include an opt-out provision is well-established. See, e.g., In re Monumental 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 1237 claims for monetary relief predominate. The district *1237 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 "equitable" or not, is a form of monetary relief.
As the district court noted, it is well-established that backpay 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 equitable relief); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998) ("Back pay, of course, had long been recognized 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 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 declaratory relief predominates.
Case law supports the district court's conclusion that Plaintiffs' requests for injunctive and declaratory relief predominate 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 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 evidence 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
1238 This case involves the largest certified class in history. The district court was *1238 cognizant of this fact when it concluded that the class size, although large, was not unmanageable. In analyzing 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 contends that, by reaching this conclusion, the district court "decided 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 cannot 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 reasons stated below, we find that the district court neither deprived Wal-Mart of substantive defenses nor altered substantive law when it certified the class.
A. Teamsters Does Not Require Individualized Hearings
Title VII recognizes that it is an "unlawful employment practice" for an employer "to discriminate against any individual . . . because of such an individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a) (1). An employee who has suffered discrimination may obtain a declaration 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 reckless indifference to the federally protected rights of an aggrieved individual." Id. § 1981a(b)(1).
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, 97 S.Ct. 1843. If the plaintiffs carry their burden at this stage, all class members are entitled to a rebuttable presumption that they are entitled to relief. See id. at 361, 97 S.Ct. 1843. Second, at the remedy stage, the district court "must usually conduct additional proceedings . . . to determine the scope of individual relief." Id. (emphasis added).
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, 97 S.Ct. 1843 (quoting Franks v. Bowman Transp. Co., 424 U.S. 747, 764, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976)); see also Carnegie v. Household Int'l, Inc., 376 F.3d 656, 661 (7th Cir.2004) ("Rule 23 allows district courts to devise imaginative solutions to problems created by the presence in a class action litigation of individual damages issues.").
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 1239 mandate individualized hearings in every case," but instead requires *1239 only "some demonstration that the individual class members receiving compensation were likely victims of illegal discrimination").
B. Title VII Does Not Require Individualized Hearings
In Pettway v. American Cast Iron Pipe Co. ("Pettway I"), 494 F.2d 211, 260 (5th Cir.1974), the Fifth Circuit reasoned that individualized hearings may be inappropriate where the employer's conduct would reduce efforts to reconstruct 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, 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 incorporate 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 promotion. See Dukes I, 222 F.R.D. at 184-85. Wal-Mart contends 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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 discrimination); 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 discrimination, `[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 employment decision at issue.'") (quoting Diaz v. Am. Tel. & 1240 Tel., 752 F.2d 1356, 1363 (9th Cir. *1240 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 disparities 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, 97 S.Ct. 2736, 53 L.Ed.2d 768 (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 0907 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 discriminating 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 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 individuals who can prove injury.
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 causation issues in employment discrimination cases in two categories. 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, 123 S.Ct. 2148, 156 L.Ed.2d 84. In other words, in "single-motive" gender discrimination 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).
The 1991 Act recognized a second category for proving intentional discrimination: plaintiffs may attempt to establish 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 impermissible 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, 1241 under *1241 the 1991 Act, if the plaintiffs pursue their case under a "mixed motive" theory, a defendant may present a "same decision defense."
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

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 indifference to the federally protected rights of an aggrieved individual," requires individualized remedy proceedings. Section 1981a(b)(1) states that a plaintiff may recover punitive damages if he or she "demonstrates that the respondent engaged in a discriminatory practice or discriminatory practices with malice or with reckless indifference to the federally protected rights of an aggrieved individual." Wal-Mart contends that use of the singular "aggrieved individual" means that claims must be pursued and defended individually.
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, statutory reference to an "individual" has never before been read to preclude class format. See Califano v. Yamasaki, 442 U.S. 682, 698-99, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979) (holding that language in the Social Security Act authorizing suit by "individual" did not preclude class relief). Thus, § 1981a(b)(1) does not require individualized 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 violated if the district court is allowed to apply a statistical formula 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 defendants. 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 1242 member's claim individually, will not withstand analysis." 3 Newberg on Class Actions § 10.05 at *1242 483. Rather, "[f]ar from being vulnerable to constitutional or statutory authorization challenges, aggregate proof of the defendant's monetary liability promotes the deterrence objectives of the substantive laws underlying the class actions and promotes the economy and judicial access for small claims objectives of Rule 23." Id. at 487.[18]
Relying on State Farm Automobile Insurance Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (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 conduct 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 calibrated 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 damages to individual class members must be "in reasonable proportion to individual lost pay awards." Id. Thus, in the event that Wal-Mart faces a punitive damages award, the district court took 0907 and presumably will continue to take 0907 sufficient steps to ensure that any award will comply with due process.[19]

Caselaw supports the district court's findings that substantive 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.
1243 *1243 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, contending 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 establishes 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 members 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, 97 S.Ct. 1843; Robinson, 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 promotion or would have applied if not for the employer's discriminatory practices).
Wal-Mart's corporate records may provide substantial objective information about class members' qualifications for promotions, but there is no suggestion that such records demonstrate 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 members had an interest in promotions. See id.
Conceding that individualized hearings would be unmanageable, 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, 97 S.Ct. 1843 (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 illegally denied to the plaintiffs as a class were opportunities neither 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.
We recognize that awarding backpay relief only to those plaintiffs who can demonstrate an interest in a promotion may deny relief to those class members exposed to the greatest opportunities for discrimination in promotions, Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), and in turn fail to provide the class with "the most complete relief possible," id. However, in light of relevant case law, the district court acted reasonably when it concluded that class members 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 1244 issues predominate where individual *1244 factual determinations can be accomplished using computer records, clerical assistance, and objective criteria 0907 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 questions; 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.
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 prosecuting 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 awards[3] "eliminate 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 binding them to something less than justice. This case poses a considerable 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] 1245 That means that if the class loses, all the women presently *1245 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 disserve the interests of the class. These lawyers without clients must obtain judicial approval of a settlement, but often that works poorly, because a class action settlement is "a bargain proffered for its approval without benefit of adversarial investigation."[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 analysis" to ensure "actual, not presumed, conformance" with the criteria for class certification.[9] As the Supreme Court recognized 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] Accordingly, as the Second Circuit recently held in In re IPO, a district judge considering class certification must make a "definitive assessment of Rule 23 requirements, notwithstanding 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 issue. "All men are mortal" answers the question whether Socrates is mortal, but not who won the World Series. This class has numerosity to spare09071.5 million women 0907but none of the other three requirements.
This class lacks "commonality" because there are no "questions 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 discrimination in pay, promotions, or terminations. Plaintiffs' sociologist 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 1246 supervisors should itself raise no inference of discriminatory conduct"[13] because it is *1246 "self-evident" that standardized testing cannot sort out who ought to be a manager.[14] "Vulnerability" to sex discrimination is not sex discrimination.

Plaintiffs' only evidence of sex discrimination is that around 2/3 of Wal-Mart employees are female, but only about 1/3 of its managers are female. But as the Supreme Court recognized 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.

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 American females, African American males, Hispanic female, Filipino male, and Caucasian male because she was discouraged by discrimination against women.

Patricia Surgeson Sexually harassed, replaced by a male who got a better title and more money, denied management opportunities, quit.

Cleo Page Quickly promoted to manager, but denied a department manager position after being told it's "a man's world." A "Caucasian female" got the department manager position. Page later got a different department manager position. But a "Caucasian male," a "Latina," and a "Caucasian female" got other management positions she sought and she got paid less than a "Caucasian male" with less seniority.

Chris Kwapnoski Sought management positions given to less qualified men. Manager made 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.

1247

*1247 Karen Williamson Sought management position but never promoted, even though "qualified." Males got promotions that were not posted.

Edith Arana African-American woman. Sought management 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 discrimination, 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 "vulnerability" to sex discrimination of the "corporate culture" of this national corporation with no centralized system for promotion, the various Plaintiffs' claims and Wal-Mart's defenses against them do not resemble one another.
Whether these seven named plaintiffs "will fairly and adequately protect the interests of the class,"[20] gets no serious attention, no doubt because everyone assumes that the lawyers 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 injunction. 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 promoted 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]
Although we accorded her standing, the same mistake we make here,[22] the Supreme Court unanimously disagreed.
1248 *1248 The majority argues that former employees have standing to seek injunctive relief because "it is reasonable that plaintiffs who feel that their rights have been violated by an employers behavior would want that behavior, and the injustice 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 punitive 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 unspecified formula will allocate back and front pay to the class members.[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 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 process, because (1) there will never be an adjudication of compensatory 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 compensatory damages, to a significant degree, will satisfy due process."[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 general 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 damages 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 1249 assessed against that defendant."[28] The *1249 Civil Rights Act expressly prohibits orders requiring the reinstatement, 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 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 violates 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 dividing 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?
[1] For a description of the "social framework analysis," see John Monahan and Larry Walker, Social Science in the Law: Cases and Materials (4th ed.1998).
[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.
[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 purpose 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 nondiscriminatory independent variables (e.g., education, experience, performance, etc.), the results will indicate whether any salary disparities are attributable to gender (thereby raising an inference 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 statistical tool . . . designed to isolate the influence of one particular factor 0907 [e.g.,] sex 0907 on a dependent variable 0907 [e.g.,] salary." (citation omitted)).
[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.
[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 properly 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 aggregated 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 0907 or even should 0907 be applied at the class certification stage. Further, we have not found a single case suggesting that commonality would be undermined if Plaintiffs' evidence failed this test.
[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).
[9] Plaintiffs submitted declarations from each of the class representatives, as well as 114 declarations from putative class members around the country. See Dukes I, 222 F.R.D. at 165.
[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, 102 S.Ct. 2364, 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.
[11] The purported class need only satisfy one of Rule 23(b)'s prongs to be sustainable. See Zinser, 253 F.3d at 1186.
[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 equitable 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 injunctive relief predominates because the self-serving declarations of a few representatives 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 statements in Plaintiffs' declarations.
[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 presented in those cases. See Williams, 665 F.2d at 929 (holding that damages requests were not incidental to the request for injunctive relief where requested compensatory damages were not clearly compatible with class injunctive relief); Zinser, 253 F.3d at 1195 (finding that a request for medical monitoring claims against manufacturer of pacemaker cannot be categorized 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).
[14] Wal-Mart cites to Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204, 122 S.Ct. 708, 151 L.Ed.2d 635 (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, 122 S.Ct. 708.
[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 process argument, and remanded with specific instructions that the lower court consider a class-wide award, making no reference to individual hearings. See Pettway v. Am. Cast Iron Pipe Co. ("Pettway II"), 681 F.2d 1259, 1266 (11th Cir. 1982).
[16] Wal-Mart cites to several cases to support its contention that statistical formulas may be appropriate where there are hundreds of class members 0907 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.
[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 hearings are required where plaintiffs pursue a "mixed motive" theory. Regardless, this issue is irrelevant to the case at hand because, as discussed above, Plaintiffs are proceeding under the "single motive" theory.
[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 certification stage 0907 the liability stage 0907 Wal-Mart can: (1) present evidence that it did not engage in discrimination and (2) challenge Plaintiff's statistical 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 pattern and practice of discrimination. Further, at the remedial stage, Wal-Mart can argue and present evidence pertaining to the appropriate model for relief.
[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 district court assigns this task to a Special Master. However, neither Plaintiffs nor the district court has suggested that a Special Master would be substituted for the jury as the fact-finder. Further, as Plaintiffs note, any formula, 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).
[1] Califano v. Yamasaki, 442 U.S. 682, 700-701, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979).
[2] Amchem Prods. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (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).
[6] Amchem Products, Inc. v. Windsor, 521 U.S. 591, 621, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (affirming denial of class certification for purpose of asbestos claims settlement).
[7] Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003).
[8] Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974).
[9] General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
[10] General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (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). [12] Fed.R.Civ.P. 23(a)(2). [13] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). [14] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 999, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). [15] Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 992, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). [16] Fed.R.Civ.P. 23(a)(3). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). [17] Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 157, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). [18] I do not know why the district court and the majority say there are six. [19] Fed.R.Civ.P. 23(a)(3). Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). [20] Fed.R.Civ.P. 23(b)(4). [21] Arizonans for Official English v. Ariz., 520 U.S. 43, 67, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). [22] Yniguez v. Arizona, 939 F.2d 727, 734 (9th Cir.1991). [23] Maj. at 1235. [24] Valley Forge Christian College v. Americans United for Separation of Church & State, 454 U.S. 464, 485, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). [25] Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 180 (D.Cal.2004). [26] State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425, 123 S.Ct. 1513, 155 L.Ed.2d 585 (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. Coalition of Life Activists, 422 F.3d 949, 961 (9th Cir.2005). [29] 42 U.S.C. § 2000e-5(g)(2)(A). [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).
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