Ten years ago, the Ninth Circuit upheld the certification of a sprawling nationwide class action in Dukes v. Wal-Mart Stores, Inc., only to see that decision overturned a year later by the Supreme Court. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011). In the intervening decade, the Supreme Court similarly up-ended the Ninth Circuit authority that tried to limit the use of arbitration agreements design to rein in class action litigation. See, e.g., AT&T Mobility v. Concepcion, 113 S. Ct. 1740 (2011). For its part, the Ninth Circuit has side-stepped issues discussed in Dukes, such as perpetuating its own doubtful proposition that Daubert standards don’t apply at the certification stage. We’ve blogged that issue here.

A recent decision, however, gives at least grudging acknowledgment of Dukes’ central holdings. In Moussouris v. Microsoft Corp., Case No. 18-35791 (9th Cir. Dec. 24, 2019), the plaintiffs brought claims that were essentially identical to those that had originally been brought in the Dukes case many years earlier. They accused the employer of company-wide gender discrimination and sought certification of a class of over 8,600 women for claims of both disparate impact and disparate treatment under Title VII and state law. The district court refused to certify the proposed class and the plaintiffs sought appeal pursuant to Rule 23(f), a request the court granted.

The Ninth Circuit affirmed, but only in a fairly brief decision it designated as not-for-publication, limiting its precedential effect. Among other things, it noted, as is often the case in these types of matters, that the challenged decisions were made primarily by individual managers, and thus there was no commonality across the entire class. It also noted, as should have been fatal in Dukes, that the class included many women who themselves had been managers, and thus included persons who simultaneously were being accused of making discriminatory decisions and being the victims of such decisions themselves. It rejected the notion that these issues could be resolved by the creation of subclasses as the plaintiffs proposed. The court therefore affirmed the denial of class certification for both the disparate impact and disparate treatment claims.

Given the size of the class and the nature of its claims, this matter likely warranted a published decision, but it still provides a worthwhile analysis and it is at least some evidence that the Ninth Circuit will follow Dukes’ core holdings, if only reluctantly.

The Bottom Line: The Dukes case continues to present substantial obstacles to company-wide discrimination class actions.