No. 02-35140
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY BECK, et al.,
Plaintiffs-Appellees,
v.
THE BOEING COMPANY, et al.,
Defendants-Appellants.
Appeal from the United States District Court
For the Western District of Washington at Seattle
Hon. Marsha J. Pechman
District Court No. C00-0301P
Brief of Amici Curiae AARP, Association of Trial Lawyers of America, Center for Law in the Public Interest, Equal Rights Advocates, The Impact Fund, Lawyers’ Committee for Civil Rights Under Law, Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, Legal Aid Society–Employment Law Center, Mexican American Legal Defense and Educational Fund, NAACP Legal Defense and Educational Fund, Inc., National Asian Pacific American Legal Consortium, National Association for the Advancement of Colored People, National Employment Lawyers Association, National Partnership for Women and Families, National Women’s Law Center, NOW Legal Defense and Education Fund, Public Advocates, Inc., Trial Lawyers for Public Justice, Women Employed, and Women’s Employment Rights Clinic at Golden Gate University School of Law in Support of Plaintiffs-Appellees, Urging Affirmance
Richard T. Seymour* (D.C. Bar 28100)
Lieff, Cabraser, Heimann & Bernstein, LLP
1100 New York Avenue, NW
Suite 1080 - West Tower
Washington, DC 20005-3934
(202) 582-1000
(202) 582-1500
(fax)
Brad Seligman
Jocelyn Larkin
The Impact Fund
125 University Ave.
Dated June 12, 2002 Berkeley,
CA 94710-1616
(510)
845-3473
*Counsel of Record
(Counsel
continued inside)
Donna M. Ryu
Women’s Employment Rights Clinic of
Golden Gate
Univ. School of Law
536 Mission Street
San Francisco, CA 94105
Laurie A. McCann
AARP Foundation Litigation
Melvin Radowitz
AARP
601 E Street, N.W.
Washington, DC 20049
(202) 434-2060
(202) 434-6424 (fax)
Lew Hollman
Center for Law in the Public Interest
10951 W. Pico Blvd., 3rd
Floor
Los Angeles, CA
90064-2126
(310) 470-3000
(310) 474-7083 (fax)
Doris Y. Ng
Equal Rights Advocates
1663 Mission Street,
Suite 550
San Francisco, CA 94103
(415) 621-0672
(415) 621-6733 (fax)
Thomas J. Henderson
Michael Foreman
Lawyers’ Committee for Civil Rights Under Law
1400 New York Avenue
N.W., Suite 400
Washington, D.C. 20005
(202) 662-8600
Michael Harris
Lawyers Committee for Civil Rights of the
San
Francisco Bay Area
131 Steuart Street,
Suite 400
San Francisco, CA 94105
(415) 543-9444
William C. McNeill, III,
Esq., Cal. Bar No. 64392
Jory C. Steele, Esq.,
Cal. Bar No. 206944
The Legal Aid Society – Employment Law Center
1663 Mission Street,
Suite 400
San Francisco,
California 94103
(415) 864-8848
(415) 864-8199 (fax)
Antonia Hernandez,
President
Thomas A. Saenz, Vice
President of Litigation
MALDEF
634 South Spring Street
Eleventh Floor
Los Angeles, CA 90014
(213) 629-2512
Karen K. Narasaki
Vincent A. Eng
National Asian Pacific American
Legal Consortium
1140 Connecticut Ave NW,
Suite 1200
Washington, DC 20036
(202) 296-2300
Elaine R. Jones,
Director Counsel
Theodore M. Shaw
Norman J. Chachkin
Robert H. Stroup
NAACP Legal Defense and
Educational
Fund, Inc.
99 Hudson Street, 16th
Floor
New York, NY 10013-2897
(212) 965-2200
Dennis C. Hayes, General
Counsel
Yolanda Y. Riley
National Association for the
Advancement of
Colored People
4805 Benjamin L. Hooks
Drive
Fifth Floor
Baltimore, MD 21215
(410) 486-9191
Paula A. Brantner
National Employment Lawyers
Association
44 Montgomery Street,
Suite 2080
San Francisco, CA 94104
(415) 296-7629
Judith L. Lichtman,
President
Jocelyn C. Frye,
Director of Legal & Public Policy
Adrienne DerVartanian,
Policy Counsel
National Partnership for Women & Families
1875 Connecticut Avenue,
NW / Suite 650
Washington, DC 20009
(202) 986-2600
Judith C. Appelbaum
Dina R. Lassow
National Women's Law Center
11 Dupont Circle NW,
Suite 800
Washington, DC 20036
(202) 588-5180
Arthur Bryant
Victoria W. Ni
Trial Lawyers for Public Justice, P.C.
One Kaiser Plaza, Suite
275
Oakland, CA 94612-3684
(510) 622-8150
(510) 622-8155 (fax)
Attorneys for Amici Curiae
Table of Contents
INTEREST
OF AMICI ............... 1
SUMMARY
OF ARGUMENT ........... 2
A. The Importance of Class Actions in Enforcing
Title VII 4
B. In the CRA, Congress Intended to Expand
Available Remedies for
Discrimination in Both Class and Individual
Cases .... 7
C. The Supreme Court’s Teamsters Model Governs
Title VII Class Action
Procedures, and Provides for a Flexible
Approach to Stage II 11
D. The Teamsters Model
Has Never Deprived Defendants of the
Ability to Fully Rebut the Allegations
at Any Stage ............. 14
E. In
Appropriate Cases, Class Treatment of Punitive Damages is
Superior to Individual Treatment ............. 15
F. Courts
Have Used Various Rule 23 Procedures
To Protect Due Process Rights .. 20
G. “Negative Value” Individual Suits Are Not a
Pre-Condition for Class
Certification, and Title VII Class
Actions Are Generally Superior to
Individual Litigation 21
H. The
1991 Civil Rights Act Did Not Limit the Ability of Plaintiffs
to Challenge Subjective Decision-Making
Resulting in Discrimination ........ 26
I. The
Seventh Amendment Does Not Bar Class Certification ............. 28
Conclusion ............. 29
Certificate of Compliance ............. 34
Table of
Authorities
1. Cases
Allison v.
Citgo Petroleum Corp,
151 F.3d 402
(5th Cir. 1998),
reh’g
denied with explanation, 151 F.3d 434 (5th Cir. 1998) 5, 21, 22, 28
Amchem
Products, Inc. v. Windsor,
521 U.S. 591
(1997) ... 21
Arkansas
Education Association v. Board of Educ.,
446 F.2d 763
(8th Cir. 1971) ... 23
Arthur
Young & Co. v. United States District Court,
549 F.2d 686
(9th Cir.), cert. denied, 434 U.S. 829 (1977) ... 29
Beck v.
Boeing Co.,
203 F.R.D. 459
(W.D. Wash. 2001) ... 23
Bell v.
Hood,
327 U.S. 678
(1946) ... 29
Bresgal v.
Brock,
843 F.2d 1163
(9th Cir. 1987) ..... 6
Caridad v.
Metropolitan-North Commuter Railroad,
191 F.3d 283
(2nd Cir. 1999), cert denied, 529 U.S. 1107 (2000) ... 27
Celestine
v. Petroleos de Venezuella SA,
266 F.3d 343
(5th Cir. 2001) 5, 22
City of
Newport v. Fact Concerts, Inc.,
453 U.S. 247
(1981) ... 18
Cooper
Industries, Inc. v. Leatherman Tool Group, Inc.,
532 U.S. 424
(2001) 16, 18
Cooper v.
Federal Reserve Bank of Richmond,
467 U.S. 867
(1984) ..... 5
Cox v.
American Cast Iron Pipe Co.,
784 F.2d 1546
(11th Cir.), cert. denied, 479 U.S. 883 (1986) ... 20
Deters v.
Equifax Credit Information Services, Inc.,
202 F.3d 1262
(10th Cir. 2000) ..... 9
In re
Diamond Shamrock Chemicals Co.,
725 F.2d 858
(2d Cir. 1984), cert. denied, 465 U.S. 1067 (1984) ... 17
Domingo v.
New England Fish Co.,
727 F.2d 1429
(9th Cir.),
modified in
other respects, 742 F.2d 520 (9th Cir. 1984) ... 12
EEOC v.
Dinuba Medical Clinic,
222 F.3d 580
(9th Cir. 2000) 9, 10
EEOC v.
W&O, Inc.,
213 F.3d 600
(11th Cir. 2000) ... 15
Eubanks v.
Billington,
110 F.3d 87
(D.C. Cir. 1997) ... 17
In re Exxon
Valdez,
229 F.3d 790 (9th
Cir. 2000) ... 17
In re Exxon
Valdez,
270 F.3d 1215
(9th Cir. 2001) ... 17
Frank v.
United Airlines, Inc.,
216 F.3d 845
(9th Cir. 2000), cert. denied, 532 U.S. 914 (2001)... 15
Franks v.
Bowman Transportation Co.,
424 U.S. 747
(1976) ..... 5
General
Telephone Co. of Southwest v. Falcon,
457 U.S. 147
(1982) ... 26
Graniteville
Co. (Sibley Division) v. EEOC,
438 F.2d 32
(4th Cir. 1971) ..... 4
Hemmings v.
Tidyman’s, Inc.,
285 F.3d 1174
(9th Cir. 2002) ... 19
Hensley v.
Eckerhart,
461 U.S. 424
(1983) ... 25
Hilao v.
Estate of Marcos,
103 F.3d 767
(9th Cir. 1996) ... 13
Horn v.
Associated Wholesale Grocers, Inc.,
555 F.2d 270
(10th Cir. 1977) ... 23
International
Brotherhood of Teamsters v. United States,
431 U.S. 324
(1977) 5, 11, 12, 13, 14, 15, 29
James v.
Stockham Valves Co.,
559 F.2d 310
(Former 5th Cir. 1977),
cert.
denied, 434 U.S. 1034 (1978) ... 15
Jefferson
v. Ingersoll International, Inc.,
195 F.3d 894
(7th Cir. 1999) ... 20
Kolstad v.
American Dental Association,
527 U.S. 526
(1999) ... 17, 18, 19, 25
Kraszewski
v State Farm General Insurance Co.,
912 F.2d 1182
(9th Cir. 1990), cert. denied, 499 U.S. 947 (1991) ... 13
Lemon v.
International Union of Operating Engineers,
216 F.3d 577
(7th Cir. 2000) ... 20
Lowery v.
Circuit City Stores, Inc.,
158 F.3d 742
(4th Cir. 1998),
vacated and
remanded on other grounds, 527 U.S. 1031 (1999) ..... 6
Lowery v.
Circuit City Stores, Inc.,
206 F.3d 431
(4th Cir.), cert. denied, 531 U.S. 822 (2000) ... 16
Madison v.
IBP, Inc.,
257 F.3d 780
(8th Cir. 2001), petition for cert. filed,
70 USLW 3445
(U.S., Dec. 19, 2001) (No. 01–985)... 16
McCowan v.
All Star Maintenance, Inc.,
273 F.3d 917
(10th Cir. 2001) ... 16
Mullen v.
Treasure Chest Casino, LLC,
186 F.3d 620
(5th Cir. 1999, cert. denied, 528 U.S. 1159 (2000) ... 29
National
Center for Immigrant Rights v. INS,
743 F.2d 1365
(9th Cir. 1984),
vacated on
other grounds, 481 U.S. 1009 (1987) ..... 6
National
R.R. Passenger Corp. v. Morgan,
__ U.S. __,
2002 WL 1270268 (June 10, 2002) 6,
10
Otting v.
J.C. Penney Co.,
223 F.3d 704
(8th Cir. 2000) ... 15
Paige v.
California,
102 F.3d 1035
(9th Cir. 1996) ..... 6
Passantino
v. Johnson & Johnson,
212 F.3d 493
(9th Cir. 2000) ... 19
Pegues v.
Mississippi State Employment Service,
899 F.2d 1449
(5th Cir. 1990) ... 13
Pettway v.
American Cast Iron Pipe Co.,
494 F.2d 211
(Former 5th Cir. 1974) ... 12
Pollard v.
E.I. du Pont de Nemours & Co.,
532 U.S. 843
(2001) ..... 7
Robinson v.
Metropolitan-North Commuter R.R. Co.,
267 F.3d 147
(2d Cir. 2001),
cert.
denied, 122 S. Ct. 1349 (2002) 5, 28, 29
Romano v.
U-Haul International,
233 F.3d 655
(1st Cir. 2000), cert. denied, 122 S. Ct. 41 (2001) ..... 8
Segar v.
Smith,
738 F.2d 1249
(D.C. Cir. 1984), cert denied, 471 U.S. 1115 (1985) ... 13
Sledge v.
J.P. Stevens & Co.,
585 F.2d 625
(4th Cir. 1978), cert. denied, 440 U.S. 981 (1979) . 4, 5
Smith v. Texaco,
Inc.,
263 F.3d 394
(5th Cir. 2001),
withdrawn
and cause dismissed, 281 F.3d 477 (5th Cir. 2002) ... 22
Sterling v.
Velsicol Chemical Corp.,
855 F.2d 1188
(6th Cir. 1988) ... 20
Stewart v.
General Motors,
542 F.2d 445
(7th Cir. 1976), cert denied, 433 U.S. 919 (1977) ... 13
Swinton v.
Potomac Corp.,
270 F.3d 794
(9th Cir. 2001), cert. denied, 122 S. Ct. 1609 (2002) ..... 8
Thiessen v.
General Electric Capital Corp.,
267 F.3d 1095
(10th Cir. 2001),
petition
for cert. filed, 70 USLW 3410
(U.S., Dec.
14, 2001) (No. 01–881) 5, 11
Watson v.
Fort Worth Bank and Trust,
487 U.S. 977
(1988) ... 27
Watson v.
Shell Oil Co.,
979 F.2d 1014
(5th Cir. 1992),
reh’g en
banc granted, 990 F.2d 805 (5th Cir. 1993),
appeals
dismissed by consent, 53 F.3d 663 (5th Cir. 1994) ... 19
Zepeda v.
INS,
753 F.2d 719
(9th Cir. 1983) ..... 6
2. Constitution, Statutes and Rules
Seventh Amendment, U.S.
Constitution ......... 3, 28
Age
Discrimination in Employment Act of 1967,
29 U.S.C. §§
621 et seq. 5
Civil Rights Act of 1991,
42 U.S.C. §
1981a . passim
Title VII of the Civil Rights Act
of 1964,
42 U.S.C. §§ 2000e et
seq. 3, 4, 11, 13, 21, 22, 23,
25, 26, 27, 28, 29
Sec. 703(a) of
Title VII,
42 U.S.C. §
2000e–2(a) ... 27
Sec.
706(g)(2)(a) of Title VII,
42 U.S.C. §
2000e–5(g)(2)(a) ... 10
42
U.S.C. § 1981a(c) 11
Rule
23, Fed. R. Civ. P. 1, 2, 3,
11
Rule
23(b)(2), Fed. R. Civ. P. ... 20,
27
Rule
23(b)(3), Fed. R. Civ. P. ... 20,
21
Rule
23(d)(2), Fed. R. Civ. P. ......... 20
3. Legislative
Materials
Amendment
1295,
137 Cong. Rec.
S15445–02, 1991 WL 221702 .. 9
H.R. Rep. No.
102 40(I) (1991),
reprinted in
1991 U.S.C.A.A.N. 7, 8
H.R. Rep. No.
102 40(II) (1991),
reprinted in
1991 U.S.C.A.A.N. 7
Statement of
Rep. Doolittle in extension of remarks,
137 Cong. Rec.
E2086 01,
1991 WL 96880
(Cong. Rec.) (June 7, 1991) . 7, 8
Statement of
Rep. Goodling,
137 Cong. Rec.
H3932,
1991 WL 94661
(Cong. Rec.) (June 5, 1991) ..... 8
Statement of
Sen. Kennedy,
137 Cong.
Rec. 15445–02,
1991 WL 221702
(Cong. Rec.) (Oct. 30, 1991) ..... 9
4. Administrative Materials
U.S. Equal Employment
Opportunity Commission,
Enforcement Guidance:
Compensatory and Punitive Damages
Available under Sec. 102 of the Civil Rights Act of 1991
(July 14, 1992), downloadable as
http://www.eeoc.gov/docs/damages.html 9, 10
5. Treatises,
Reports, and Law Reviews
Herbert Newberg and Alba Conte,
Newberg on Class Actions, 3d Ed.
(The West
Group, 1992) 13, 21
Manual on Complex Litigation–Third
(Federal
Judicial Center, 1994) ... 29
R. Bone, Statistical
Adjudication: Rights, Justice and Utility
......... in a World of Process Scarcity,
46 Vand. L. Rev. 561 (1993) ... 14
Steven S.
Gensler, Bifurcation Unbound,
......... 75 Wash. L. Rev. 705
(2000) ... 28
Marika F. X.
Litras, Ph.D.,
......... Civil Rights Complaints in U.S. District Courts, 1990-98
......... (January 2000), downloadable
......... http://www.ojp.usdoj.gov/bjs/pub/pdf/crcusdc.pd 24
G. Robinson
& Kenneth Abraham, Collective Justice in Tort Law,
......... 78 Va. L. Rev. 1481 (Oct. 1992)
... 14
M. Saks &
P. Blanck, Justice Improved: The Unrecognized Benefits of Aggregation and
Sampling in the Trial of Mass Torts,
......... 44 Stan. L. Rev. 815 (1992) ... 14
L. Walker
& J. Monahan, Sampling Damages,
......... 83 Iowa L. Rev. 545 (March
1998) ... 14
All parties have consented to the filing of this brief. Letters of consent have been submitted to the Court.
AARP, the Lawyers’ Committee for Civil
Rights Under Law, the Mexican American Legal Defense and Educational Fund, the
National Asian Pacific American Legal Consortium, the National Association for
the Advancement of Colored People, the NAACP Legal Defense and Educational
Fund, Inc., the National Partnership for Women and Families, the NOW Legal
Defense and Education Fund, and the National Women’s Law Center, are nonprofit
national organizations dedicated to removing racial, ethnic, sexual, age or
disability discrimination in employment, among other goals. Each of these organizations worked closely
with Congress in framing the Civil Rights Act of 1991 (“CRA”), and each
represents victims of discrimination who will be affected by the interpretation
of the CRA and Rule 23.
The
Center for Law in the Public Interest, the Legal Aid Society—Employment Law
Center, Equal Rights Advocates, The Impact Fund, the Lawyers’ Committee for
Civil Rights of the San Francisco Bay Area, Public Advocates, Inc., Women
Employed, and the Women’s Employment Rights Clinic at Golden Gate University
School of Law, are nonprofit organizations that are dedicated to removing
racial, ethnic, and sexual discrimination in employment, among other
goals. Each of these organizations
represents victims of discrimination who will be affected by the proper
interpretation of the CRA and Rule 23.
The
Association of Trial Lawyers of America and the National Employment Lawyers
Association are nonprofit national organizations of attorneys whose members
represent many thousands of clients in lawsuits seeking relief under the CRA,
and who from time to time must depend on the availability of Rule 23 in order
to secure justice for their clients.
Trial
Lawyers for Public Justice is a national public interest law firm seeking to
advance the public good in civil rights, consumer rights, and other areas.
Each
amicus also has a strong interest in
the access of victims of discrimination to the courts and to the remedies
provided by Congress, often available only through Rule 23.
Class
actions are an indispensable tool in making the promise of nondiscrimination
real. They have been used successfully
for more than three decades. In
enacting the Civil Rights Act of 1991 (“CRA”), Congress intended to expand
remedies, not contract them. Congress
clearly intended class actions to be available in disparate-treatment cases
involving subjective discrimination, and intended class members to receive
common-law damages. Nothing in the
legislative history suggests that Congress intended to change the procedures by
which class members’ entitlement to relief is determined. Acceptance of defendants’ arguments would
require classes to choose between remedies, which is inimical to the intent of
Congress.
In appropriate cases, punitive damages
are suitable for classwide resolution, and classwide resolution of punitive
damages may often be superior to individual litigation. The proper inquiry focuses on the employer’s
state of mind as the key determinant of eligibility for punitive damages, and
the state of its efforts to comply are a key determinant of its vicarious
liability. These are both issues more
suited to classwide than individual resolution.
Contrary
to the arguments of defendants and their amici,
Rule 23 does not impose a condition that individual cases have “negative
value.” They have overlooked
significant reasons why Title VII class actions are normally superior to
individual litigation, and have vastly overstated the value of individual
claims.
Finally,
procedures are available for the litigation of Title VII class claims that
fully satisfy the Seventh Amendment.
A.
The Importance of Class
Actions in Enforcing Title VII
As
this Court knows from its own docket, the primary burden of enforcing Title VII
has fallen on private plaintiffs, and courts have long remarked that individual
victims of classwide discrimination may be unaware of the discrimination. For example, the Fourth Circuit has observed
that “sophisticated general policies and practices of discrimination are not
susceptible to such precise delineation by a layman who is in no position to
carry out a full-fledged investigation himself,” although “[l]ong observation
of plant practice may bring the realization that he and his black coemployees
are not getting anywhere.” Graniteville Co. (Sibley Division) v. EEOC,
438 F.2d 32, 38 (4th Cir. 1971). In Sledge v. J.P. Stevens & Co., 585
F.2d 625, 637–38 (4th Cir. 1978), cert.
denied, 440 U.S. 981 (1979), the court reversed most of the findings of
nondiscrimination as to the named plaintiffs because their claims had been
adjudicated in isolation, without reference to the extensive proof of classwide
patterns of discrimination that it affirmed.
Id. at 634–36, 644. (That is why the EEOC similarly is empowered
to look for patterns of discrimination in its investigations.) Obtaining a just outcome can depend entirely
on proof of a discriminatory pattern. For this reason,
the Supreme Court and lower courts have held that proof of a classwide pattern
benefits class members by creating a rebuttable presumption that each class
member was victimized by the discrimination, shifting to defendants the burden
of persuasion to establish the contrary.[1] Justice
depends on the court’s ability to see the whole picture.
Absent class certification, plaintiffs
often cannot get discovery of the facts establishing a discriminatory
pattern. Even where plaintiffs obtain
such evidence because of an earlier unsuccessful effort to obtain class
certification,[2] and bring
their case as 206 consolidated cases, one Circuit has held the plaintiffs could
not rely on such evidence in litigating their individual claims because no
class had been certified, and then affirmed the dismissal of all 206
plaintiffs’ individual claims.[3] In effect, the denial of class certification
blinded the court to the type of evidence that was dispositive in Teamsters, Sledge, and similar cases.
Moreover, even if individual
plaintiffs prove pervasive discrimination, the absence of class certification
may jeopardize their obtaining the kind of systemic injunction that will
prevent future wrongs, to the extent it exceeds what is necessary to give
individual relief to the named plaintiffs.[4]
Finally, in National R.R. Passenger Corp. v. Morgan, __ U.S. __, 2002 WL
1270268 (June 10, 2002), the Supreme Court rejected the “continuing violation”
doctrine for individual claims based on discrete employment actions such as
promotions, but preserved the possibility that a different rule might apply in
private pattern-and-practice cases.
Slip op. at 12 n.9. Thus, it is
possible that some class members’ claims would be timely in a class action, and
untimely if brought separately.
The Supreme Court has held that the
CRA was intended to expand remedies, not contract them. Pollard v. E.I. du Pont de Nemours &
Co., 532 U.S. 843, 852 (2001).
The legislative history
clearly demonstrates that, from the outset of efforts to enact a damages
remedy, class actions would be available in disparate treatment cases.[5] Indeed, opponents of the CRA argued that
class actions for compensatory and punitive damages without meaningful caps
would drive employers to adopt quotas.[6] In response to these concerns, and faithful
to the overwhelming need to increase the remedies available under the fair
employment laws so as to deter discrimination and provide a make-whole remedy,
Sen. Danforth proposed the remedial structure that became 42 U.S.C.
§ 1981a, allowing damages in both individual and
class suits but capping damage recoveries for each individual. While amici
disapprove of the caps, it is important to recognize that their limitations on
individual recoveries provide an additional, if unneeded, reassurance that
defendants engaging in intentional discrimination are treated fairly.[7]
The
damages section was originally subject to the construction that it did not
allow the government to seek damages, limiting this relief to private
litigation. When the EEOC pointed out
the harm this would do to its enforcement program, however, the measure was
amended to allow the government to seek damages. Senators Hatch, Kennedy, and Danforth later successfully proposed
Amendment 1295 to the original structure to ensure that the caps would not be
applied to the case as a whole, but to each person involved in the case. Sen. Kennedy explained that the kind of suit
should be irrelevant to the application of the caps:
Mr. President, this amendment is
designed to make clear that the limitations on damage contained in section 5
apply to each complaining party, not to all parties in a single case.
The 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.
137 Cong. Rec. S15445-02, 1991 WL 221702 (Cong.
Rec.) (Oct. 30, 1991). This Court has
relied on this history. EEOC v. Dinuba Medical Clinic, 222 F.3d
580, 589 (9th Cir. 2000).
The EEOC’s contemporaneous
interpretation supports this view. Its July 14, 1992, Enforcement Guidance: Compensatory and Punitive Damages Available
Under Sec. 102 of the Civil Rights Act of 1991, attached hereto, is
entitled to respect because it has the “power to persuade.” Nat’l
R.R. Passenger Corp. v. Morgan, slip op. at 7–8 n.6. It states: “When the Commission, or an
individual, is pursuing a claim on behalf of more than one person, the damage
caps are to be applied to each aggrieved individual.” Guidance at
3a. Note 8, at pp. 14a–15a, states:
“Since each individual who states a claim under one of these statutes is one
who may bring an action, each is eligible for damages up to the cap. This is true even when their claims are
joined . . . in a class action brought by a private party.”[8] The EEOC stated that “any other construction
would conflict with Congressional intent to make damages available to fully
compensate persons harmed by discrimination and to deter further
discrimination.” Id. at 15a. This Court has
agreed. EEOC v. Dinuba Medical Clinic, 222 F.3d at 589.
Congress wrote against a backdrop of
decades of settled law that included the mechanisms described below in Parts
C–F. Nothing in the legislative history
suggests that Congress intended to change the manner in which class members’
entitlement to relief is determined.
The caps do not affect the trial, because the statute forbids the jury
to be informed of them. 42 U.S.C.
§ 1981a(c). Whatever the
factfinder determines, the court then applies the caps before the judgment is
entered.
Defendants and their amici seek to place victims of
discrimination in a quandary that could never have been intended by Congress:
either abandon all claims for CRA relief or forfeit the class treatment that
may be their only realistic hope for prevailing, and risk their ability to
obtain a decree that will finally end discrimination. Congress cannot have intended that victims of intentional
discrimination be forced to choose between their right to backpay or damages
and their right to a full injunction.
The imposition of this Hobson’s choice would be a virtual judicial
repeal of the backpay and damages remedies.
In
Teamsters, the Court established the procedural structure for the
litigation of pattern-and-practice cases, including Title VII class actions.[9] Pattern-and-practice liability is tried
first. If plaintiffs prevail then
classwide remedies, such as injunctive and declaratory relief, are ordered. To the extent that class members seek
monetary relief, they enter Stage II proceedings for that purpose and are
entitled to a presumption that discrimination occurred. 431 U.S. at 360–62. This two-stage method is particularly
efficient because, if liability is not found in Stage I, the parties do not
waste resources conducting discovery and presenting evidence about
individual-specific injuries.
There
are two basic models for awarding relief in Stage II proceedings. The first involves individualized
determinations that attempt to recreate what would have occurred in hirings or
promotions absent discrimination. E.g., Teamsters, 431 U.S. at
371–72. Teamsters did not hold that separate hearings were required for
each discriminatee, but merely that “additional proceedings” would determine
individual relief. Id. at 361.
Where the recreation of history leads
the court into a “quagmire of hypothetical judgments,” it can depart from
individual hearings and determine backpay on a classwide basis. Pettway v. American Cast Iron Pipe Co.,
494 F.2d 211, 260 (Former 5th Cir. 1974).
Accordingly, courts have allowed proof of aggregate monetary relief in
Title VII actions by means of expert statistical analysis as an
alternative. Domingo v. New England
Fish Co., 727 F.2d 1429, 1444–45
(9th Cir.), modified in other respects,
742 F.2d 520 (9th Cir. 1984); Stewart v. General Motors, 542 F.2d 445, 452–53 (7th
Cir. 1976), cert denied, 433 U.S. 919 (1977); Segar v. Smith, 738
F.2d 1249, 1289–91 (D.C. Cir. 1984), cert denied, 471 U.S. 1115
(1985). See 2 Newberg, Herbert,
and Conte, Alba, Newberg on Class Actions, 3d Ed. (1992) §
10.05.
Over the past 25 years, the Teamsters
model has taken into account complex facts relating to large numbers of class
members, resulting in sophisticated awards, without losing class-action
efficiencies by devolving into an individualized quagmire, or by trammeling
anyone’s constitutional rights. E.g., Kraszewski v State Farm General
Insurance Co., 912 F.2d 1182 (9th Cir. 1990) (individual hearings to
determine entitlement, and formula to determine relief), cert. denied, 499 U.S. 947 (1991).
Segar, 738 F.2d at 1289–93
(hearings for lower-level black agents, but statistical multi-factor approach
to backpay for senior agents); Pegues v.
Mississippi State Employment Service, 899 F.2d 1449 (5th Cir. 1990). There is no reason why the Teamsters model cannot apply to Title
VII punitive-damage claims. Sampling
techniques are also available.[10]
Boeing
wrongly complains that the Teamsters
model deprives it of a fair opportunity to rebut the allegations.
To
demonstrate a pattern and practice, plaintiffs typically use three kinds of
evidence: (a) testimony and documentary evidence describing the challenged
practices, and demonstrating intent; (b) expert testimony showing how the
practice has affected the class; and (c) anecdotal testimony from class members
to bring “the cold numbers convincingly to life.” Teamsters, 431 U.S. at 339.
Defendants
are free to attack this evidence or offer their own proof. If a defendant has evidence explaining away
an overall statistical showing, it may present such evidence in Stage I and
explain why its own analysis is more probative. It can select representative parts of its workforce and present
individual explanations that, if accepted by the jury, would undermine or
destroy plaintiffs’ statistics.
In
addition, if a defendant shows that there is no discriminatory pattern in a
specific part of its workforce it will not only have avoided the need for Teamsters determinations as to that
portion, it will preclude that part of the class from attempting in individual
cases to rely on a discriminatory pattern.
Whichever side benefits from class certification, however, it is clear
that the existence vel non of a
discriminatory pattern was a class issue.
E.
In Appropriate Cases, Class Treatment of Punitive
Damages is Superior to Individual Treatment
In some cases, defendant’s conduct
giving rise to punitive damages is not committed individually, but with respect
to the entire class. Examples are
decisions to (1) apply height and weight standards for airline attendants in a
facially discriminatory manner,[11]
(2) segregate employees racially in pay lines, etc.,[12]
(3) refuse to allow disabled employees to return to work with restrictions on
activities,[13] (4) refuse
to allow pregnant employees to wait on tables,[14]
(5) allow Hispanic employees to be subjected to repeated ethnic slurs,[15]
(6) ignore all harassment complaints rather than investigate them,[16]
or (7) suppress reports of, rather than eradicate, classwide disparities.[17] Such decisions are made with respect to the
class as a whole, not particular individuals.
If plaintiffs prove such class-wide
actions, it is simply incorrect that the assessment of punitive damages must be
made on an individual-by-individual basis.
It is the essence of the defendant’s action that it was not done individually.
Moreover,
punitive damages, like general prospective relief, are not intended to
compensate individuals for particular injuries. Cooper Industries, Inc. v.
Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001). They do not require the individualized
attention—not necessarily hearings, but attention—appropriate for awards of
backpay and compensatory damages.
In
appropriate cases, class treatment of punitive damages can be superior to
individualized treatment because it can help avoid multiple punitive awards for
the same pattern of discrimination. As
this Court noted in In re Exxon Valdez,
229 F.3d 790, 795–96 (9th Cir. 2000), punitive damages classes can help prevent
“the unfairness that results when a few plaintiffs—those who win the race to
the courthouse—bankrupt a defendant early in the litigation process” and “the
possible unfairness of punishing a defendant over and over again for the same
tortious conduct.”[18] The Second Circuit refused to grant mandamus
to overturn certification of such a class, accepting the district court’s
reasoning that “courts adjudicating later individual claims would admit
evidence as to the payment of punitive damages in prior cases,” that later
claimants may get less, and that “punitive damages ought in theory to be
distributed among the individual plaintiffs on a basis other than date of
trial.”[19]
Class treatment of punitive damages is, moreover,
consistent with the Supreme Court’s analysis of the CRA’s punitive damage
remedy in Kolstad v. American Dental Association, 527 U.S. 526
(1999). While Kolstad involved
an individual action, its logic applies equally to class cases. The Court zeroed in on the employer’s knowledge and behavior,
rather than on an individualized analysis of harm to plaintiffs. Thus, a CRA punitive damages claim presents
global factual and legal issues about the employer’s wrongdoing that
particularly lend themselves to class resolution.
Kolstad specifically rejected a standard for punitive damages
that would only examine whether employees had been victims of particularly
egregious behavior. Instead, it stated:
“the view that § 1981a provides for punitive awards based solely on an
employer’s state of mind is consistent with the 1991 Act’s distinction between
equitable and compensatory relief.”
“The terms ‘malice’ or ‘reckless indifference’ pertain to the employer’s
knowledge that it may be acting in violation of federal law. . . .” 527 U.S. at 535.[20]
Kolstad grounded its interpretation firmly in the language
and purpose of the CRA. The Court
emphasized the statute’s “two-tiered structure.” Id. at 534–35. The first tier includes all cases of
intentional discrimination. The cases
in the second tier are the subset of those first-tier cases that qualify for
punitive damages. The fact-finder determines
whether to award punitive damages by “focus[ing] on the employer’s state of
mind” to find out whether the employer acted “‘with malice or with reckless
indifference to the [plaintiff’s] federally protected rights.’” Id.
at 535; see also id. at 549 (Stevens, J., joined by Justices Souter, Ginsburg, and
Breyer, concurring) (§1981’s “purely mental standard” perfectly consistent with
Act’s ‘two-tiered’ damages scheme).[21]
In
cases like this, the second-tier inquiry transcends individualized questions
about what happened to each person, requiring a more focused examination on the
employer, the results of which would apply to all class members. This interpretation serves the purposes of
the CRA. By focusing on the employer’s
actions and by providing a defense for employers making good-faith efforts to
comply, the Court created incentives for employers to be proactive in remedying
and preventing discrimination. 527 U.S.
at 545–46. These are questions that
must ordinarily be answered globally, because the answers would not often vary
by individual. Punitive damage claims
work well with class action treatment.[22]
F.
Courts Have Used Various Rule 23 Procedures To
Protect Due Process Rights
Courts
have thoughtfully analyzed the procedures a district court may deploy in order
both to comply with Rule 23 and address any due process concerns raised. Jefferson
v. Ingersoll Int’l, Inc., 195 F.3d 894, 896–99 (7th Cir. 1999), set forth
three such options for CRA damages class actions: (a) certify a (b)(2) class, and use 23(d)(2) to order notice and
opportunity to opt-out; (b) order
hybrid or “divided” certification (as herein), so that liability issues fall
under (b)(2), and damage claims are treated under (b)(3); or (c) certify the entire matter under
(b)(3), as discussed below. See also Lemon v. Int’l Union of Operating Engineers, 216 F.3d 577 (7th Cir.
2000) (endorsing the three Jefferson
options); Robinson, 267 F.3d at
165–67 (CRA compensatory-damages case, remanding with instructions to consider
(b)(2) with notice and opt-out at damages phase); Eubanks v.
Billington,
110 F.3d 87, 95 (D.C. Cir. 1997) (discussing (b)(2) backpay class with
opt-outs); Cox v. American Cast Iron Pipe
Co., 784 F.2d 1546, 1554 (11th Cir.) (discussing hybrid certification with
opt-outs at backpay stage), cert. denied,
479 U.S. 883 (1986); 1 Newberg
on Class Actions § 4.14.
Defendants
(Brief at 38–39) and their amici
(Brief at 24) argue that Title VII claims are not appropriate for class
treatment because they are no longer “negative value” suits, where the monetary
value of an individual claim is outweighed by transaction costs in litigating
it. They assert that all Title VII
claims are now effectively worth at least $300,000 each. This misreads the law, overstates the
monetary value of most Title VII claims, and ignores the importance of class
actions.
Rule
23 does not require that class members’ claims have negative value to qualify
for class treatment. Amchem
Products, Inc. v. Windsor, 521 U.S. 591, 616–17 (1997), discussed a
balancing test between the size of individual stakes and the will and ability
of class members to take care of their own interests, although “the text of
Rule 23(b)(3) does not exclude from certification cases in which individual
damages run high.”[23]
Amici have shown above that the ability
of individual plaintiffs to obtain the discovery to prevail, be able to rely on
it, and to obtain systemic injunctive relief, can be impaired outside of class
litigation. That consideration is
reinforced in this case, in which plaintiffs had to file twenty motions to
compel discovery, and in which the fruits of discovery are broadly claimed to
be confidential and are thus kept out of the hands of subsequent
plaintiffs. Here, the balancing test
favors class certification.
This
test favors class certification to an even further extent in Title VII
cases. Defendants’ notional $300,000
value per case assumes that all cases will be successful and provide the
maximum possible remedy. If that is so,
then their gender discrimination must be widespread, and clearly a systemic
challenge and injunction are long overdue.
Defendants
further assume that every female employee is able to overcome her fear of
retaliation,[24] can readily
find counsel, and will bring an independent lawsuit. If that is so, the docket should be full of individual lawsuits
against defendants and class certification or consolidation would help clear
the docket below. The fact that amici could find few cases against
defendants, juxtaposed with the lower court’s having found plaintiffs’
statistical showing substantial enough to warrant class certification, shows
instead that there may be a classwide problem for which individual lawsuits are
not an effective remedy.
If
defendants’ approach were applied to an ordinary accident claim, the claim
would have infinite value because there is no cap on the potential
recovery. Plainly, the value of a claim
is based on the likely size of the verdict for that claim discounted by
the myriad risks in litigation.
This common sense view of claim value is supported by
government data regarding employment discrimination cases. The Department of Justice’s Bureau of
Justice Statistics has released a Special Report[25]
stating that only 5% of employment discrimination complaints in federal
district courts in 1998 were resolved by trial. It states that 39% of the complaints were settled, leaving 56%
dismissed or voluntarily withdrawn. Id. at 6. Of the 5% of employment discrimination cases resolved by trial,
plaintiffs won only 35.5% of the time, which means that plaintiffs won at trial
about 1.8% of the total cases filed.
The median judgment was for only $137,000. Id. at 9. Discounting that figure by the almost 60%
probability of losing produces a median value under $55,000. Even that figure, however, is likely an
overstatement because the cases studied by the Bureau include high-back-pay
cases such as hiring and firing cases, and the claims here involve promotions,
which normally involve much smaller back-pay claims. Moreover, it does not include the further whittling away of
victories on appeal.
The
theoretical availability of punitive damages does not change this calculus
because such awards are included in the study.
Nor is this surprising. To
obtain punitive damages, Kolstad
requires a heightened standard of proof.
Even where such proof is ultimately obtained, at the outset of a case a
lawyer could rarely know that an award of punitive damages is certain.
Nor
does the availability of attorneys’ fees make Title VII claims less appropriate
for class treatment. Fees have been
available since 1965 and class actions have still been necessary. The trial court has broad discretion to
eliminate hours not reasonably spent and to weigh the extent of success and
results obtained, among other factors. Hensley
v. Eckerhart, 461 U.S. 424
(1983). Defendant’s amici argue (Brief at 24) without case
support that the availability of statutory attorneys’ fees alone would support
a finding that Title VII claims are not “negative value” suits. By such logic, no class action would lie for
any of the federal causes of action where statutory attorneys’ fees are
provided. Moreover, it is highly
unlikely that district courts would allow recovery, in individual cases, for
the time and expense of discovering and analyzing patterns of classwide
discrimination.
Consideration
of the superiority of class or individual actions differs fundamentally between
negligence actions seeking only money, and suits requiring proof of intentional
misconduct that seek systemic injunctive relief as well as money. Obtaining proof of discriminatory intent
requires a much wider sweep for evidence, with a heavier expenditure of time
and money, and making reliance on a pattern of conduct much more important than
in negligence cases seeking only money.
It is far more economical in judicial, party, and attorney resources to
litigate and resolve such questions once than to do so in largely repetitive
individual cases. Moreover, the intent
of Congress in eradicating discrimination cannot be achieved if employers can
rely on the windfall that fear and retaliation will lead many victims not to
become plaintiffs in individual cases.
These factors militate much more strongly in favor of class certification.
The
Supreme Court has repeatedly affirmed that plaintiffs may challenge an
employer’s use of subjective criteria in Title VII class actions. General Telephone Co. of Southwest v.
Falcon, 457 U.S. 147, 159 n.15 (1982), stated that a class of both
applicants and employees might be justified by proof of a “general policy of
discrimination,” and used “entirely subjective decisionmaking processes” as an
example. Watson v. Fort Worth Bank
and Trust, 487 U.S. 977, 989–91 (1988), held that disparate-impact analysis
applies to subjective as well as objective employment practices, and pointed
out that any other result might lead to further discrimination by employers
that saw subjective discrimination as a “safe harbor” immune from
disparate-impact analysis. Here, defendants
and their amici impermissibly seek to
create a “safe harbor” by making subjective decisions immune from challenge in
any class action seeking common-law damages.
Defendants’
amici argue without case support
(Brief at 11) that the CRA fundamentally altered Title VII, thereby rendering class-wide
challenges to subjective decision-making improper. They cite § 703(a) of Title VII, which was not amended by
the CRA, and provisions involving “mixed motives” cases, which are inapplicable
here and which rarely if ever apply to statistical cases or patterns of
subjective decisionmaking.
Defendants’
amici also point to the CRA’s
expansion of remedies, but this provision deals only with remedies, not
liability, and so cannot advance their argument.
They
also argue that “subjective criteria” claims are too individualized to satisfy
Rule 23(b)(2) commonality. Neither the
Supreme Court nor any Circuit shares this view. Most recently, in Caridad v. Metro-North Commuter Railroad,
191 F.3d 283, 292 (2nd Cir. 1999), cert denied, 529 U.S. 1107 (2000), a
decision not cited in defendants’ amici’s
brief, the Second Circuit rejected the identical argument.
I.
The Seventh Amendment Does Not Bar Class Certification
While
there has been an increased concern with Seventh Amendment considerations
concerning Title VII class actions, see Allison v. Citgo Petroleum Corp.,
151 F.3d at 422–25, there should be no presumption that Title VII class
actions are inappropriate because of the Seventh Amendment. A number
of procedural devices can accommodate Seventh Amendment concerns and
would allow employment discrimination cases to go forward as class
actions. See Robinson v. Metro-North
Commuter R.R.. Co, 267 F.3d at 169–70.[26]
The widespread granting
of new jury trials on limited issues shows that the Seventh Amendment does not
require that the same jury resolve all factual questions. It requires that no jury revisit a prior
proper jury determination, and Seventh Amendment concerns are routinely
discharged by an instruction that the new jury is bound by the previous jury’s
findings. There is no impediment to
having one jury determine the existence of a classwide pattern of
discrimination sufficient to create a rebuttable presumption that individual
class members were victims of discrimination, Robinson, 267 F.3d at
167–69, and then have that jury, or as many supplemental juries as necessary,
conduct Stage II Teamsters trials of the claims of class members. Id.
at 169 n.3; Arthur Young & Co. v. United States District Court, 549 F.2d 686, 692–93 (9th Cir.),
cert. denied, 434 U.S. 829 (1977); Mullen v. Treasure Chest Casino, LLC,
186 F.3d 620, 628–29
(5th Cir. 1999, cert. denied, 528
U.S. 1159 (2000). The Manual for Complex
Litigation states that in mass tort cases “liability
issues may be consolidated for joint trial, reserving damage issues for later
individual trials.” MCL 3d § 21.631. Thus, separate
juries can even be used outside the context of a class action.
The class action procedure has for
thirty-seven years been, and still remains, the most important means for
achieving the goal of equal opportunity promised by Title VII. This Court
should reject defendants’ invitation to read the CRA as turning back the clock
on decades of Title VII class action jurisprudence.
Federal
courts should continue to follow fair procedures that give effect to the intent
of Congress. Cf. Bell v. Hood, 327 U.S. 678, 684 (1946) (“where federally
protected rights have been invaded, it has been the rule from the beginning
that courts will be alert to adjust their remedies so as to grant the necessary
relief.”) (footnote omitted).
The
decision of the district court should be affirmed.
Respectfully
submitted,
Richard T. Seymour* (D.C. Bar 28100)
Lieff,
Cabraser, Heimann & Bernstein, LLP
1100 New York Avenue, NW
Suite 1080 - West Tower
Washington, DC
20005-3934
(202) 582-1000
(202) 582-1500 (fax)
Brad Seligman
Jocelyn Larkin
The Impact
Fund
125
University Ave.
Berkeley, CA
94710-1616
(510)
845-3473
Donna M. Ryu
Women’s Employment Rights Clinic of
Golden
Gate Univ. School of Law
536 Mission Street
San Francisco, CA 94105
*Counsel
of Record
Laurie A.
McCann
AARP
Foundation Litigation
Melvin Radowitz
AARP
601 E Street, N.W.
Washington, DC
20049
(202)
434-2060
(202)
434-6424 (fax)
Lew Hollman
Center for
Law in the Public Interest
10951 W. Pico Blvd., 3rd Floor
Los Angeles, CA 90064-2126
(310)
470-3000
(310)
474-7083 (fax)
Doris Y. Ng
Equal
Rights Advocates
1663 Mission Street, Suite 550
San Francisco, CA 94103
(415)
621-0672
(415)
621-6733 (fax)
Thomas J. Henderson
Michael Foreman
Lawyers’
Committee for Civil Rights
Under Law
1400 New York Avenue N.W., Suite 400
Washington, D.C. 20005
(202)
662-8600
Michael Harris
Lawyers
Committee for Civil Rights of the
San Francisco Bay Area
131 Steuart Street, Suite 400
San Francisco, CA 94105
(415)
543-9444
William C. McNeill, III, Esq., Cal. Bar No.
64392
Jory C. Steele, Esq., Cal. Bar No. 206944
The Legal
Aid Society – Employment Law Center
1663 Mission Street, Suite 400
San Francisco, California 94103
(415)
864-8848
(415)
864-8199 (fax)
Antonia Hernandez, President
Thomas A. Saenz, Vice President of Litigation
MALDEF
634 South Spring Street
Eleventh Floor
Los Angeles, CA
90014
(213)
629-2512
Karen K. Narasaki
Vincent A. Eng
National
Asian Pacific American
Legal Consortium
1140 Connecticut Ave NW, Suite 1200
Washington, DC
20036
(202)
296-2300
Elaine R. Jones, Director Counsel
Theodore M. Shaw
Norman J. Chachkin
Robert H. Stroup
NAACP
Legal Defense and
Educational Fund, Inc.
99 Hudson Street, 16th Floor
New York, NY 10013-2897
(212)
965-2200
Dennis C. Hayes, General Counsel
Yolanda Y. Riley
National
Association for the
Advancement of Colored People
4805 Benjamin L. Hooks Drive
Fifth Floor
Baltimore, MD 21215
(410) 486-9191
Paula A. Brantner
National
Employment Lawyers
Association
44 Montgomery Street, Suite 2080
San Francisco, CA 94104
(415)
296-7629
Judith L. Lichtman, President
Jocelyn C. Frye, Director of Legal & Public
Policy
Adrienne DerVartanian, Policy Counsel
National
Partnership for Women & Families
1875 Connecticut Avenue, NW / Suite 650
Washington, DC 20009
(202)
986-2600
Judith C. Appelbaum
Dina R. Lassow
National
Women's Law Center
11 Dupont Circle NW, Suite 800
Washington, DC
20036
(202) 588-5180
Arthur Bryant
Victoria W. Ni
Trial
Lawyers for Public Justice, P.C.
One Kaiser Plaza, Suite 275
Oakland, CA
94612-3684
(510)
622-8150
(510)
622-8155 (fax)
Attorneys for Amici Curiae
Certificate of Compliance
Pursuant
to Rule 32(a)(7), F.R.A.P., the undersigned certifies that this brief complies
with the type-volume limitations contained in that rule. It was produced in Microsoft Word version
2002 with MacPac, and contains 7,000 words exclusive of the cover, tables of
contents and authorities, lists of counsel, corporate disclosure statement, and
certificates of compliance and service.
____________________________________
Richard
T. Seymour
Counsel
of Record
Dated:
June 12, 2002
Certificate
of Service
I certify that I have served a copy of
the foregoing brief this 12th day of June, 2002, on counsel for the parties by
facsimile commencing before midnight, and that I will deposit copies in the
U.S. Mail, first-class postage prepaid, prior to 3:00 A.M. on June 13, 2002,
addressed to them as follows:
Joseph
M. Sellers, Esq.
Christine
Webber, Esq.
Cohen,
Milstein, Hausfeld & Toll, P.L.L.C.
1100
New York Avenue, N.W., Suite 500
Washington,
D.C. 20005
Jerry
R. McNaul, Esq., Michael D. Helgren, Esq., and
Robert
M. Sulkin, Esq.
McNaul
Ebel Nawrot Helgren & Vance, P.L.L.C.
One
Union Square, Suite 2700
600
University Street
Seattle,
WA 98101–3143
Barbara
Berish Brown, Esq.
Neal
D. Mollen, Esq.
Paul,
Hastings, Janofsky & Walker LLP
1299
Pennsylvania Avenue N.W., 9th Floor
Washington,
D.C. 20004
C.
Geoffrey Weirich, Esq.
Paul,
Hastings, Janofsky & Walker LLP
600
Peachtree Street N.E., Suite 2600
Atlanta,
Georgia 30308–2222
Lawrence
B. Hannah, Esq.
Jeffrey
A. Hollingsworth, Esq.
Nancy
Williams, Esq.
Perkins
Coie LLP
1201
Third Avenue
Seattle,
WA 98101–3099
Signed:
_________________________________
Richard T. Seymour
Attorney for Amici Curiae
Dated: June 12, 2002
[1] Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 361–62 (1977); Franks v. Bowman Transportation Co., 424 U.S. 747, 772–73 (1976); Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 867, 875–76 (1984); Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 168 (2d Cir. 2001), cert. denied, 122 S. Ct. 1349 (2002); Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1106 (10th Cir. 2001) (“significant advantage” in ADEA collective action), petition for cert. filed, 70 USLW 3410 (U.S., Dec. 14, 2001) (No. 01–881).
[2] Allison v. Citgo Petroleum Corp, 151 F.3d 402 (5th Cir. 1998), reh’g denied with explanation, 151 F.3d 434 (5th Cir. 1998).
[4] Zepeda v. INS,
753 F.2d 719, 727–29 (9th Cir. 1983) (absent class certification, injunction limited
to individual plaintiffs); Nat’l Center
for Immigrant Rights v. INS, 743 F.2d 1365, 1371–72 (9th Cir. 1984) (same),
vacated on other grounds, 481 U.S.
1009 (1987); Bresgal v. Brock, 843
F.2d 1163, 1170–71 (9th Cir. 1987) (classwide relief without class
certification proper only when necessary to give relief to named plaintiffs); Paige v. California, 102 F.3d 1035, 1039
(9th Cir. 1996) (exercising pendent jurisdiction over class certification order
in appeal from grant of injunction, stating: “Because the injunction issued
here provides class-wide relief, we could not uphold it without also upholding
the certification of the class.”); Lowery
v. Circuit City Stores, Inc., 158 F.3d 742, 766–67 (4th Cir. 1998), vacated and remanded on other grounds,
527 U.S. 1031 (1999) (reversing systemic injunction going farther than needed
to give individual plaintiffs relief).
[5] E.g., H.R. Rep. No. 102–40(I) (1991) at 143, reprinted in 1991 U.S.C.A.A.N. at 672
(“Class actions claiming intentional discrimination will be based as they are
under current law on racial and sexual statistical imbalances in the
workforce.”) (minority report); H.R.
Rep. No. 102–40 (II) at 68 (1991), reprinted in 1991 U.S.C.C.A.N. at 754
(“Not only would H.R. 1 allow the recovery of punitive and compensatory damages
in individual disparate treatment cases, it would allow recovery of such
damages and jury trials for class action disparate treatment suits. Like disparate impact suits, a prima facie
case in a ‘pattern and practice’ intentional discrimination lawsuit is
established through the use of statistical evidence.”) (minority report);
statement in extension of remarks of Rep. Doolittle on June 7, 1991, quoting a
letter from Zachary Fasman of the defense-side law firm of Paul, Hastings, Janofsky
& Walker in Washington, D.C., 137 Cong.
Rec. E2086–01, 1991 WL 96880 (Cong. Rec.) (“The proponents of this
legislation consistently have argued that the expanded remedies in question
will apply only to cases of intentional discrimination. In fact, * * * the bill
would allow compensatory and punitive damages in * * * class actions premised
upon the disparate treatment theory of discrimination.”).
[6] E.g.,
H.R. Rep. No. 102–40 (I) at 127
(1991), reprinted in 1991
U.S.C.C.A.N. at 656 (minority report) (“Further, the concerns with ‘quotas’ . .
. are heightened by inclusion of punitive and compensatory damages. Class action intentional discrimination
claims are also based on statistical imbalances; employers will again feel
inordinate pressure to engage in race- and sex- based preferential
treatment.’”); statement in extension of remarks of Rep. Doolittle on June 7,
1991, quoting a letter from Zachary Fasman of the law firm of Paul, Hastings,
Janofsky & Walker in Washington, D.C., 137 Cong. Rec. E2086–01, 1991 WL 96880 (Cong. Rec.); remarks of
Rep. Goodling, 137 Cong. Rec.
H3932, 1991 WL 94661 (Cong. Rec.) (June 5, 1991) (“Mr. Chairman, for the past
year and a half, we have argued the quota implications of H.R. 4000 and H.R. 1
are caused by the bills’ substantive provisions, namely, the rules of proof in
disparate-impact cases which are stacked against employers, and the
availability of punitive and compensatory damages in intentional discrimination
class actions based on statistical proof which will drive employers to covertly
hire and promote by the numbers to avoid costly litigation.”).
[7] E.g.,
Swinton v.
Potomac Corp., 270 F.3d 794, 820 (9th Cir.
2001), cert. denied, 122 S. Ct. 1609
(2002); Romano v. U-Haul International,
233 F.3d 655, 673 (1st Cir. 2000), cert.
denied, 122 S. Ct. 41 (2001); Deters
v. Equifax Credit Information Services, Inc., 202 F.3d 1262, 1272–73 (10th
Cir. 2000).
[8] It is commonplace that
the courts grant remedies only to aggrieved individuals. Awards of backpay, admission to a union,
reinstatement, and similar individualized relief are so limited,
§ 706(g)(2)(a) of Title VII, 42 U.S.C. § 2000e–5(g)(2)(a), and awards of
punitive damages under the 1991 Act use the phrase “aggrieved individual”
incidentally, in the course of defining the conduct that can give rise to an
award of punitive damages. 42 U.S.C. § 1981a(b)(1). No larger significance can fairly be read
into the CRA’s language.
[9] Age discrimination pattern-and-practice cases, while
not subject to Rule 23, follow the Teamsters
model as well. Thiessen v. General Electric Capital Corp., 267 F.3d at 1105.
[10]
In Hilao v. Estate of Marcos, 103 F.3d
767, 779–87 (9th Cir. 1996), this Court upheld classwide resolution by a jury,
based on sampling, of compensatory and punitive damage claims raised by 10,000
class members who suffered from human rights abuses, resolving issues far more
daunting than those presented herein. Scholars have also supported
the concept of using sampling techniques to aid in determining damages. G. Robinson & Kenneth Abraham, Collective
Justice in Tort Law, 78 Va. L. Rev. 1481 (Oct. 1992); R. Bone, Statistical
Adjudication: Rights, Justice and Utility in a World of Process Scarcity, 46
Vand. L. Rev. 561 (1993); M. Saks & P. Blanck, Justice Improved: The
Unrecognized Benefits of Aggregation and Sampling in the Trial of Mass Torts,
44 Stan. L. Rev. 815 (1992); L. Walker & J. Monahan, Sampling Damages,
83 Iowa L. Rev. 545 (March 1998).
[11] Cf. Frank v. United Airlines, Inc., 216 F.3d
845, 853–55 (9th Cir. 2000), cert. denied, 532 U.S. 914 (2001).
[12] Cf. James v. Stockham Valves Co., 559 F.2d
310, 319–28 (Former 5th Cir. 1977), cert.
denied, 434 U.S. 1034 (1978).
[16]
Cf. Madison v. IBP, Inc., 257 F.3d 780, 795–96 (8th Cir. 2001), petition for
cert. filed, 70 USLW 3445 (U.S.,
Dec. 19, 2001) (No. 01–985).
[17]
Lowery v. Circuit City Stores, Inc., 206 F.3d 431, 445–46 (4th Cir.), cert.
denied, 531 U.S. 822 (2000).
[18] This Court’s recent remand of the $5 billion punitive damages verdict as excessive did not disturb the use of the mandatory punitive damages class. In re Exxon Valdez, 270 F.3d 1215, 1238–47 (9th Cir. 2001).
[19] In re Diamond
Shamrock Chemicals Co., 725 F.2d 858, 861–62 (2d Cir. 1984), cert. denied, 465 U.S. 1067 (1984).
[20] The CRA’s
punitive damages focus on the employer-wrongdoer, rather than the victim, is in
line with the Supreme Court’s general principles on that issue: “Punitive
damages, by definition are not intended to compensate the injured party, but
rather to punish the tortfeasor whose wrongful action was intentional or
malicious, and to deter him and others from extreme conduct.” City
of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266–67 (1981). Punitive damages operate as “private fines”
intended to punish and deter future wrongdoing. Cooper Industries, Inc. v.
Leatherman Tool Group, Inc., 532 U.S. at 432.
[21] And see Hemmings v. Tidyman’s, Inc., 285 F.3d 1174, 1197–99 (9th Cir.
2002); Passantino v. Johnson &
Johnson, 212 F.3d 493, 515–16 (9th Cir. 2000).
[22] This is not novel.
See e.g., Watson v. Shell Oil Co., 979 F.2d 1014 (5th Cir. 1992) (mass-tort
punitive-damages claim presents predominantly common issues and class treatment
is superior), reh’g en banc granted,
990 F.2d 805 (5th Cir. 1993), appeals
dismissed by consent, 53 F.3d 663 (5th Cir. 1994); Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1217 (6th Cir.
1988) (punitive damages can be awarded in State-law 23(b)(3) action for
contaminated drinking water).
[23] The only
Court of Appeals opinion to discuss seriously “negative value” analyses in a Title
VII employment class action is Allison, 151 F.3d at 420, and it merely said that “‘negative
value’” cases were “‘the most compelling rationale” for finding superiority in
a class action’” and that that factor was not present in the case at bar. Its subsequent decision in Celestine, discussed above, demonstrated
that it was factually wrong. The Fifth
Circuit did not say that negative values were indispensable for class
certification, and disclaimed any such holding in its former decision in Smith v. Texaco, Inc., 263 F.3d 394, 416
(5th Cir. 2001) (“Although a negative value suit is not
a prerequisite to class certification, its absence is a significant detraction
from the superiority of the class action device.”), withdrawn and cause dismissed, 281 F.3d 477 (5th Cir. 2002).
In the view
of amici, Allison is poorly reasoned dicta
that cannot be squared with earlier Fifth Circuit precedent. See the dissenting opinion of Judge
Dennis. Id. at 426–34. The order
denying rehearing, id. at 434, stated
that the real issue was whether the lower court abused its discretion in
allowing consolidation of hundreds of claims rather than class certification,
and there was no abuse of discretion. Allison never addressed what it
described as the real issue, and its broad discussion was unnecessary to the
result. Further, these dicta failed to consider the importance
of injunctive relief or concerns about employer reprisal. Allison also relied on the assumption
that all Title VII claims are worth $300,000, untenable in light of Celestine. Finally, the order denying rehearing distanced itself from the
issues presented herein: “We are not called upon to decide whether the district
court would have abused its discretion if it had elected to bifurcate liability
issues that are common to the class and to certify for class determination
those discreet [sic] liability issues.”
Id.
[24] Horn v. Associated Wholesale Grocers, Inc., 555
F.2d 270, 275 (10th Cir. 1977) (taking judicial notice of employees’
apprehensiveness about offending their employers); Arkansas Education Ass’n
v. Board of Educ., 446 F.2d 763, 765 (8th Cir. 1971) (“those teachers who
remain in the school system could have a natural fear or reluctance to bring
this action on an individual basis”).
The lower court similarly stated that “the Court cannot ignore the
realities of choosing to litigate an individual claim against a resource-heavy
organization such as defendants’,” and added that “most of these women would
not pursue their claims individually, and thus have little or no interest in
‘controlling the prosecution . . . of separate actions.’” Beck
v. Boeing Co., 203 F.R.D. 459, 467 (W.D. Wash. 2001).