On December 24, 2019, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s order denying Plaintiffs motion for class certification in their employment discrimination action. The three-judge panel, consisting of Circuit Judges Richard Paez and Johnnie Rawlinson and District Judge Leslie Kobayashi (sitting by designation), heard the oral argument for the case on November 4^, 2019.

In its brief disposition of the case, the Ninth Circuit held that the district court acted within its discretion in determining that Appellants failed to satisfy the requirements of Federal Rule of Civil Procedure 23 necessary to certify a class. Specifically, the panel separately affirmed the district court’s denial of class certification as to Appellants’ disparate impact and disparate treatment claims.

First, the panel held that as to Appellants’ disparate impact claims, the district court did not abuse its discretion when it ruled that the proposed class did not satisfy the “commonality” requirement of Rule 23. To satisfy this requirement, the proposed class must pose “a common question that will connect many individual promotional decisions to their claim for class relief” and “produce a common answer to the crucial question why was I disfavored?” The panel found that in the case at hand, there were not common questions because the proposed class consisted of over 8,600 women holding more than 8,000 different positions in various facilities throughout the country. Moreover, the panel held that Appellants failed to identify any common mode of discretion throughout Microsoft because individual managers exercised broad discretion in assessing employees.

Next, the panel held that as to Appellants’ disparate treatment claims, the district court similarly did not abuse its discretion when it ruled that Appellants’ proposed class did not satisfy the “adequacy or representation” requirement of Rule 23. This requirement looks at whether the named plaintiffs and their counsel have any conflicts of interest with other class members. The panel noted that the proposed class included thousands of members who either acted as a manager once, were a lead or a manager, or were “managers of managers.” Even Katherine Moussouris, a named Plaintiff of the proposed class, was a manager who had three of the putative class members report to her. Accordingly, the panel held that Mousouris has a conflict of interest with other putative class members. Additionally, the panel held that Appellants’ proposal that the district court certify subclasses to address this conflict was not an issue which was properly preserved for appeal.

The Ninth Circuit’s decision reinforces the burden placed on any putative class to satisfy all of the requirements of Federal Rule of Civil Procedure 23.