# Petition for Writ of Certiorari — United Airlines, Inc. v. Frank > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1490%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2001 - **Citation:** 532 U.S. 914 ## Text Supreme Court, U.S. FILE D age” 00 . 948 DEC - 6 2000 No. 00- OFFICE OF THE CLERK IN THE Supreme Court of the Anited States UNITED AIRLINES, INC., Petitioner, V. LESLIE FRANK, et al., Respondents. On Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit PETITION FOR A WRIT OF CERTIORARI JENNIFER ANSBRO HALE WALTER E. DELLINGER United Airlines, Inc. (Counsel of Record) 1200 East Algonquin Road TOM A. JERMAN Elk Grove Village, IL 60007 PAMELA HARRIS (847) 700-4194 SRI SRINIVASAN JOHN B. OWENS O’MELVENY & MYERS LLP 555 13th Street, N.W. Washington, D.C. 20004 (202) 383-5300 Attorneys for Petitioner QUESTIONS PRESENTED 1. Whether a federal court may refuse to enforce a judg- ment in a prior federal class action, properly certified un- der Rule 23, either (a) because the prior class action did not permit class members to opt out of the class (a ques- tion that this Court has granted several times but never answered); or (b) by relying on a subsequent change in the facts underlying the judgment, but without any con- sideration whether the change was significant or material to the plaintiff class’s claim, in direct conflict with Mon- tana v. United States, 440 U.S. 147 (1979), and numer- ous decisions of the courts of appeals. 2. Whether a claim for disparate impact is cognizable under the Age Discrimination in Employment Act (“ADEA”), as the Ninth Circuit held below, or whether the ADEA does not recognize such claims, as other circuits, follow- ing Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), have held. ll PARTIES AND CORPORATE DISCLOSURE Petitioner is United Airlines, Inc., defendant-appellee be- low. UAL Corporation, a publicly traded corporation, owns 100 percent of United Airlines, Inc. Respondents in this case were plaintiffs-appellants in the court below. They are Leslie Frank, Pat Parnell, Susan Broderick, Carole Kirk, Nichkol Melanson, Sandra Huff, Diane Davis, Sharon Benjamin, Sharron K. Taylor, Bland Lane, Joan Balla Weaver, Donna Durkin, and Ellen McCor- mick, individually and as class representatives. ili TABLE OF CONTENTS Page QUESTIONS PRESENTED ...2....c.cccccscssssessssssosseeeseseosesse.... i PARTIES AND CORPORATE DISCLOSURE ................. ii TABLE OF AUTHORITIES ...0........sssecccssssssssseoeoeeoeecccs... Vv ici ety ey te TCS | ial Ne ccc oss l CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED.........ccccssessccssssssescooeeoeessssssccs.... | STATEMENT OF THE CASE.00......ccccccssscsssccssseeeeeeeeccccs.. 2 REASONS FOR GRANTING THE WRIT....................... 9 I. THE NINTH CIRCUIT’S RULING ON THE PRECLUSIVE EFFECT OF THE ALPA CLASS ACTION JUDGMENT MARKS A DRAMATIC CHANGE IN PRECLUSION LAW AND CONFLICTS WITH NUMEROUS COURT OF APPEALS Acct ncnitsencstemsonsesecee.. 11 A. The Ninth Circuit’s Rule That Opt-Out Rights Are Necessary Before Class Action Judgments Will Be Given Full Preclusive Effect Raises A Fundamental Question About Preclusion Law That This Court Previously Has Granted, But Never ee) ag AES 1] iv TABLE OF CONTENTS (continued) Page B. The Ninth Circuit’s Holding That Immaterial Factual Changes Deprive A Judgment Of Any Preclusive Effect Conflicts With The Decisions Of This Court And Of Numerous Courts Of II. THE FEDERAL CIRCUITS ARE SHARPLY DIVIDED ON WHETHER DISPARATE IMPACT CLAIMS ARE COGNIZABLE UNDER THE ADEA AFTER THIS COURT’S DECISION IN HAZEN PAPER............ 26 CG NIN ws sscishinitninninsuiesstipniatiaintinitninnahiiunasiedaiacijani 30 Vv TABLE OF AUTHORITIES Page(s) CASES Adams v. Robertson, at SL: See aN Rema NE 9, 10, 12 Albemarle Paper Co. v. Moody, 422 U.S. 405 CE FUP eaideickiisenibapactesisisniisiintigtin cinta 3 ALPA v. United Airlines, Inc., 26 Fair Empl. Prac. Cas. (BNA) 607 oe AE: . MANNE Se ee Te passim ALPA v. United Airlines, Inc., 26 Fair Empl. Prac. Cas. (BNA) 622 A: ING cctetiiiincsicctst Nace ae te passim Amchem Prod. v. Windsor, - PP PE niltihieiiiimpisin gi i at 19 Arkla, Inc. v. United States, 37 F.3d 621 (Fed. Cir. ED en MON Ne eM Te: 24 Arnett v. California Public Employees Retirement System, 179 F.3d 690 (9th Cir. 1999), vacated and remanded on other grounds, exes Oa __, 1208S. Ct. 631 (2000) 00.00.0000... icalialinibanteid tata hoe 8,9 Broaddus v. Florida Power Corp., 145 F.3d 1283 (11th Cir. Pe iccdtescnsacaianb tee tee 29 Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1993), cert. granted, 510 U.S. 810, cert. dismissed as improvidently granted, Fen Oe BA ED isicicobieniuanc i 14 vi TABLE OF AUTHORITIES (continued) Page(s) Ce:otex Corp. v. Catrett, te |. ene 26 Coleman v. Commissioner of Internal Revenue, ye fe ls ee 23 County of Washington v. Gunther, IS Wie Be Gre ticcenttccenccencintistiidieeaiedaa 28 Cutler v. Hayes, SES cs OEP is Gs BET cteriternintiaininancinaiaiii 24 DeCosta v. Viacom Int'l, Inc., SE Fe Gee Ce ee Ce cliiniesetiniscstiebbisietanttininninds 23 DiBiase v. SmithKline Beecham Corp., i Pio fe Le RE erence en, 29 District Council 37 v. New York City Dep't of Parks & Recreation, RRP Boge os RR eR oe 29 EEOC v. American Airlines, Inc., 4B FSG EGG Caen Gas Tae Rancsctcnsesecusesetsnccbecconnsnei passim EEOC v. Francis W. Parker Sch., 82 8 ic, Le eS eee 29 EEOC v. Local No. 350, Fae Fa Ok Ce Ge Se ictistnnitinetiecenctien 30 EEOC v. McDonnell Douglas Corp., em ff nS 30 Eisen v. Carlisle & Jacquelin, GET UB. 196 FP csutncevinnssstitiitiiltiaiiiadaaiagiae 13 Vii TABLE OF AUTHORITIES (continued) Page(s) Ellis v. United Airlines, Inc., 73 F.3d 999 (10th Cir. ae ccnnnecictilitaleii tas cS a passim Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. eT passim Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042 (6th Cir. ED Gonzales v. Cassidy, 474 F.2d 67 (Sth Cir. 1973).....-cccccccsoecs-..... eeseenneees 19, 20 Hansberry v. Lee, | ee 17, 18 Hazen Paper Co. v. Biggins, bia cca, passim In re A.H. Robins Co., 880 F.2d 709 (4th Cir. Ie 16 In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425 (2d Cir. ee MilciihsetinlacaneaiSicslates 19, 20 Klein v. Commissioner of Internal Revenue, 880 F.2d 260 (10th Cir. Re 23 Kyriazi v. Western Elec. Co., 647 F.2d 388 (3d Cir. 1981)... ccccccccccssecccsssssseec.... 16, 19 Laskey v. UAW, 638 F.2d 954 (6th Cir. 1981)... cccececccccsssssssseeeeccc.. 20 Local No. 391 v. Terry, teh e nea ve cece ee ee ee 3 Markham v. Geller, a a i | EE 28 Viil TABLE OF AUTHORITIES (continued) Page(s) Martin v. Wilks, es Se a icincncsilicnidecnnsseisighiedtnantaintiiiiuabicpuniehin 18 Metz v. Transit Mix, Inc., Se a ee UN tis WIN Diassctncciasndscenvbinisinencdcanceiss 28 Montana v. United States, 440 US. 147 (1979).............. ecelidiindiainclensigssindicanilaiinal passim Mullin v. Raytheon Co., Be ae re Ge FD crtcttntctsnncnnstessonnenccnntions 27, 29 Murnane v. American Airlines, Inc., ee a I icttitiictintascnsdanchsttistiianeneinnsiiia 22 Niagara Frontier Tariff Bureau, Inc. v. United States, Be ee es NT Dicncinsesncnicinscninctenssitiniibaneinnntteen 23 North Georgia Elec. Membership Corp. v. City of Calhoun, 989 F.2d 429 (11th Cir. 1993)................ccccccsssseeees 23, 24 Ortiz v. Fibreboard Corp., er Se ee niceisssanicicinchctiidnstiiilineinaigieninal passim Raytech Corp. v. White, SF i re eh iiiiikcisiintenlitnndiaiadtntinanten 23 Richards v. Jefferson County, ee a iti lieiaiiniscesitaaticitia cilities 18, 19 RTS Inv. Corp. v. Commissioner of Internal Revenue, rp & | ot. > | en eee nee 23 Sam Fox Pub. Co. v. United States, Ue ee ME I Miitastiseeihcbiinicicaitden ecikasiininicitractaneniiielicid 18 — ix TABLE OF AUTHORITIES (continued) Page(s) Smith v. Xerox Corp., 196 F.3d 358 (2d Cir. ee intieedaiinadaisiasiiks auteinoiat 29, 30 Ticor Title Ins. Co. v. Brown, wee Sy BOT Ci passim Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239 (3d Cir. ce MRA Rie Rath otahti/s 16, 20 STATUTES So be ee pe aa) Ne NS SFE RETR l seis cetocct feat eT AUR T OR NS LRP RTT AAD 28 I ea 28 ~itbpiiecseecch. tiseee gl Sr tM AOE Ed: 28 Pee ID Stiinta se csiannicbbiadaincinccsisc is occ 28 A rene OE BNI io csintninscnsanesinacoseasadsasesneses, 5 RE eR eae ae Oe 3 sos inp ok stag OUT no 0 Ee eT 2 OTHER AUTHORITIES James Wm. Moore et al., Moore's Federal passim Charles Alan Wright et al., Federal Practice and Procedure (2d ed. 1986) .......ccccccssceccscseceseoeeeees. 15, 16 X TABLE OF AUTHORITIES (continued) Page(s) Douglas Laycock, Continuing Violations, Disparate Impact in Compensation, and Other Title VII Issues, 49 L. & Contemp. PO, Fb CIN tsinssiesscaniiniiinvicneistssinliisnkimcanstaaciiasihtiones 28 Fed. R. Civ. P. 23 1966 Advisory Committee’s Note, reprinted in 39 F.R.D. i iaisisianercddnadasavnpsdnamaabaieabbhtaadulameisasantonacnacn 15, 16, 20 Herbert Newberg & Alba Conte, Newberg on Class Actions (3d ed. 1992).................. 3,18 Note, Binding Effect of Class Actions, 67 ROW. Kea: RMI. Fira ee ctihosinitnssicassenovccipanroinicntbhetgabiailn 20 RULES AND REGULATIONS Bc Bis Hs Bis GN cbsnceisencsbibonncsecinaptittiinsnnedidaniaaiakeiaantl passim PETITION FOR A WRIT OF CERTIORARI Petitioner United Airlines, Inc. (“United”), respectfully prays that a writ of certiorari issue to review the judgment of the United States Court of Appeals for the Ninth Circuit in Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000). OPINIONS BELOW The opinion of the United States Court of Appeals for the Ninth Circuit in this case is reported at 216 F.3d 845 (9th Cir. 2000), and reprinted in the Appendix to this Petition (“App.”) at la. The opinions of the United States District Court (Legge, J.) are unreported and reprinted at App. 37a. The opinions of the United States District Court (Pratt, J.) in the prior class action judgment are reported at ALPA v. United Airlines, Inc., 26 Fair Empl. Prac. Cas. (BNA) 607 (E.D.N.Y. 1979), and ALPA v. United Airlines, Inc., 26 Fair Empl. Prac. Cas. (BNA) 622 (E.D.N.Y. 1979), and reprinted at App. 71a and 86a. JURISDICTION The panel opinion of the Court of Appeals was issued on June 21, 2000. A timely petition for rehearing and rehearing en banc was denied on August 11, 2000. App. 127a. On Oc- tober 20, 2000, Justice O’Connor granted petitioner an ex- tension until December 9, 2000, to file this petition. The ju- nsdiction of this Court is invoked under 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The Due Process Clause of the Fourteenth Amendment to the Constitution provides that [N]or shall any State deprive any person of life, liberty, or property, without due process of law .... Ao a an 2 The Age Discrimination in Employment Act is codified at 29 U.S.C. §§ 621-634, and is reprinted at App. 128a. Rule 23 of the Federal Rules of Civil Procedure is re- printed at App. 160a. STATEMENT OF THE CASE A. Prior Litigation and Judgment in the New York Dis- trict Court. From the early 1970s until July 1994, United maintained a weight program for its flight attendants. The program used separate weight charts for males and females that were inde- pendently developed and modified over time. App. 2a-3a. Until 1977, the charts were derived in part from a table of desirable heights and weights based on mortality data pub- lished by the Metropolitan Life Insurance Company. App. 102a. In 1977, United revised its female charts upward, based on data provided by the United States Department of Health, Education, and Welfare. App. 102a-103a Other than a two-pound, across-the-board increase and further in- creases based upon age, identical for men and women, the charts remained the same from 1977 until United ended the program in 1994. In 1973, the predecessor to the Association of Flight Attendants (“AFA”) and several named class representatives filed a class action in the Eastern District of New York against United on behalf of “all present and future female [United] flight attendants.” AFA alleged that United vio- lated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII’) by using separate weight charts that were not comparable in their treatment of men and women. AFA also contended that United applied and enforced its weight program in a manner that discriminated against fe- male flight attendants. AFA sought declaratory and injunc- tive relief, including backpay. 3 On November 1, 1977, the district court (Pratt, J.) certi- fied the class under Rule 23(b)(2) of the Federal Rules of Civil Procedure, App. 88a, which authorizes class actions when the conduct at issue is “generally applicable” to the proposed class and declaratory or injunctive relief is appro- priate “for the class as a whole.” Rule 23(b)(2) class actions are “mandatory” in that they do not afford an opportunity for class members to opt out of the action; nor does Rule 23 re- quire that notice detailing a class member’s rights be given to 23(b)(2) class members. Nevertheless, AFA and United ~ stipulated in 1977 that class members who currently worked for United would receive written notice of the litigation in their United mailboxes, and former United flight attendants would receive notice via regular mail sent to their last known addresses. This notice described the complaint, provided the name and address of the class’s legal counsel, and informed the class members that they could intervene in the litigation with their own counsel if they so wished. App. 165a. On June 12, 1979, the district court issued an opinion de- ciding the merits of that case. The court rejected the plain- tiffs’ claim that United’s separate weight charts were facially invalid, and ruled that the differences in allowable weighis for male and female flight attendants — differences identical to those in effect through 1994 — were permissible. ALPA vy. United Airlines, Inc., 26 Fair Empl. Prac. Cas. (BNA) 607, ' Under Title VII, back pay has generally been treated as equitable relief rather than monetary damages. See 42 U.S.C. § 2000(e)(5) (1994); Local No. 39] v. Terry, 494 U.S. 558, 571-72 (1990); Albemarle Paper Co. v. Moody, 422 U.S. 405, 415-18 (1975). Accordingly, there is no * Class members received the same notice as part of the subsequent California litigation. The notice appears at App. 166a. 4 617-20 (E.D.N.Y. 1979) (““ALPA”). App. 113a-118a. The district court was aware of the Metropolitan Life Insurance tables that had, until 1977, been part of the basis for United’s weight allowances. App. 102a. But experts for both AFA and United relied instead on statistics from a different source, a Health Examination Survey conducted by the United States Public Health Service (“HES study”). App. llla-112a. The district court found that the appropnate point of comparison was not statistics for the general popula- tion, but those for the “relevant labor market.” App. 116a- 117a. Within that group, the district court found, figures from the HES study showed no meaningful difference be- tween the percentage of men and women who could meet United’s pre-1977 standards; the court also found that a /ar- ger percentage of women than men would be able to qualify under the standards in effect from 1977 until 1994. Jd. On the plaintiffs’ second claim, the court ruled against United, holding that United had enforced its weight program in a discriminatory manner. App. 118a-125a. On October 30, 197%, the court issued a judgment and permanent injunction in accord with its opinion. United was “free to continue using” its separate male and female weight charts, which the court had found consistent with Title VII. App. 76a. At the same time, United was required to alter its weight program policies to eliminate discrimination in en- forcement. App. 84a. B. Compliance with the Judgment. Pursuant to the ALPA judgment, United and AFA agreed to a revised enforcement policy that removed all subjective discretion from United’s enforcement of its weight program. App. 60a. At AFA’s request, United also agreed to increase its weight limits by two pounds for both men and women, and to provide all flight attendants three additional pounds at ages 35, 45, and 55. Declaration of Judith Hart, Ninth Cir- 5 cuit Excerpt of Record 299. Though these alterations were submitted to the court, no ruling on the revised policy was sought. Both parties agreed not to appeal those aspects of the ALPA decision unfavorable to them. App. 61a. On Feb- Tuary 1, 1980, the revised program went into effect. App. 58a. C. Re-Litigation in the California District Court. In 1992, respondents filed the present action in the Northern District of California. Attacking the same program adjudicated in ALPA, they claimed that United’s separate weight charts for men and women were facially invalid un- der Title VII. Respondents also alleged that the weight pro- gram had a disproportionate impact on older flight attendants and thus violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). Respondents sought declaratory and injunctive relief, as well as monetary dam- ages, on behalf of all flight attendants employed by United after 1989. United eliminated its weight program altogether in 1994 and reinstated the handful of flight attendants who had been terminated under the program, leaving only a pos- sible back pay and damages remedy. The district court (Legge, J.) certified the class under Rule 23(b)(3) of the Fed- eral Rules of Civil Procedure. As required for a Rule 23(b)(3) class, and unlike a “mandatory” Rule 23(b)(2) class, potential class members were given the opportunity to opt out of the class.° : Respondents also alleged that United’s policy violated the ADEA under a disparate treatment theory, violated the Americans with Disabili- ties Act, 42 U.S.C. §§ 12101-12213 (“ADA”), and violated state law. Respondents’ ADEA disparate treatment claims and ADA claims were rejected by the Ninth Circuit and are not relevant to this petition. Be- cause the state-law claims “rise or fall with plaintiffs’ federal claims,” see App. 6a n.3, a decision by this Court to reverse and remand on any of the federal claims would necessarily require the Ninth Circuit to reverse the corresponding state-law claims. 6 The district court rejected respondents’ Title VII claim on preclusion grounds. Because the ALPA litigation “neces- sarily decided that the differences in the weight schedules between men and women did not violate Title VII,” the court held, respondents could not litigate that claim for a second time. App. 6la. The district court found that United’s slight equivalent increases to male and female charts, made at AFA’s request, were favorable to the class and did not render res judicata inapplicable. Jd. Finally, the court rejected re- spondents’ argument that res judicata should not apply be- cause flight attendants hired after the ALPA litigation wished to challenge a “continuing violation.” Because the class cer- tified in ALPA included not only present but also future flight attendants, the court concluded, post-ALPA employees were bound by the judgment as “future members of the class defined in [ALPA].” App. 63a. The district court also rejected respondents’ ADEA claim, holding that disparate impact claims were not cogni- zable under the ADEA. The court relied on the Tenth Cir- cuit’s decision in Ellis v. United Airlines, Inc., 73 F.3d 999 (10th Cir. 1996), upholding the same weight program at is- sue in this case, and on Ellis’s analysis of Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), in which this Court left a “strong impression” that the ADEA does not permit dispa- rate impact claims. App. 55a; Ellis, 73 F.3d at 1009. D. The Ninth Circuit Decision. 1. A divided panel of the Ninth Circuit reversed on both counts. In an opinion written by Judge William Fletcher and joined by Judge Reinhardt, the court held that the 1979 ALPA judgment in favor of United did not preclude the cur- rent litigation. The core of the majority’s reasoning was as follows: Class actions seeking monetary damages — the only relief available after United eliminated its weight program in 1994 ~ are certified under Rule 23(b)(3), which requires in- ee 7 dividualized notice and an opportunity to opt out of the liti- gation. The ALPA class, on the other hand, was certified as a so-called “injunction class” under Rule 23(b)(2), which does not require the same notice or the right to opt out. Any dif- ference in notice requirements was not dispositive; the Ninth Circuit expressly declined to rely on any difference because it could not determine on the record before it whether the ALPA notice “was distributed to all class members who would have been entitled to notice of a Rule 23(b)(3) class action.” App. 10a-lla. But the difference as to opt-out rights was critical. Because the ALPA judgment was entered in a 23(b)(2) action in which class members were not af- forded an opt-out right, the panel held, the ALPA judgment could not preclude the same class members from bringing a subsequent claim for money damages. App. 1 la. The panel majority offered what were ostensibly two ad- ditional reasons why the ALPA judgment lacked preclusive effect. First, respondents were asserting Title VII claims based on alleged violations arising after 1980, the court rea- soned, and the ALPA judgment, entered in 1979, could not “preclude claims based on events occurring after that date.” App. 9a. Second, because United revised its program pursu- ant to the ALPA judgment, slightly increasing the allowable weights equally for men and women, the two suits did “not arise from the ‘same transactional nucleus of facts,’” render- ing preclusion inoperative. App. 10a.‘ * The court also held that United could not rely on what it described as the ALPA “settlement,” as opposed to the judgment, to preclude the current litigation — thus rejecting a position that United had never ad- vanced. This was so, the court held, because the district court in ALPA had never approved of a settlement under Rule 23(e), and because the so- ‘called settlement “appear{ed] not to protect the interests” of the plaintiff class in this action. App. 1la. Because United is not, in fact, relying in this case on the preclusive effect of any settlement, this petition does not address the Ninth Circuit’s discussion of this point. 8 Having held that the ALPA judgment did not preclude litigation of respondents’ Title VII claim, the majority went on to reach the merits of that claim. The panel majority re- lied exclusively on a comparison between United’s weight standards and data provided by the 1953 Metropolitan Life Insurance mortality tables, notwithstanding Judge Pratt’s de- termination in ALPA — based on expert testimony — that any such comparison is inapposite. On that ground, the majority concluded that United’s separate weight tables were facially invalid under Title VII, and entered summary judgment in favor of the class for the alleged Title VII violations. App. 14a-19a. As for respondents’ ADEA claim, the court acknowl- edged the Tenth Circuit’s holding in Ellis, as well as this Court’s decision in Hazen Paper. The court held, however, that the Ninth Circuit had “squarely decided” that the ADEA does recognize disparate impact claims in Arnett v. Califor- nia Public Employees Retirement System, 179 F.3d 690, 696 (9th Cir. 1999), vacated and remanded on other grounds, ___ US. __, 120 S. Ct. 631 (2000). App. 19a-20a. The court saw “no reason to depart” from Arnett despite the fact that this Court had vacated the decision. The Ninth Circuit reaffirmed Arnett’s holding “that a disparate impact claim is cognizable under the ADEA,” and reversed the district court’s ADEA ruling. App. 20a. 2. In a comprehensive dissent, Judge O’Scannlain char- acterized the panel’s decision as “conflict[ing] fundamen- tally with preclusion doctrine.” App. 23a. The dissent re- jected the majority’s position that a mandatory Rule 23(b)(2) class action cannot preclude a subsequent damages class ac- tion challenging the very same policy, and cited the deci- sions of other courts of appeals that “recognized that a judg- ment entered against a class certified under Rule 23(b)(2) may satisfy the demands of due process and bind the mem- bers of that class as though it had been certified under Rule 9 23(b)(3).” App. 28a. Because respondents had failed to show any violation of due process in this case, Judge O’Scannlain concluded, they should be bound by the prior judgment. App. 30a-32a. Nor, according to Judge O’Scannlain, was it relevant that United had liberalized its weight standards after the ALPA litigation, for only a change in “material operative facts” can prevent res judicata from attaching. App. 25a-26a. And United’s revisions to its policy, which were favorable to the class and increased weight allowances by the same number of pounds for both men and women, were entirely immate- rial to respondents’ legal claim. “The lockstep increases in maximum permissible weights, in short, are no more mate- nal to the plaintiffs’ cause of action than the possibility that the new policy was printed and circulated on a different color of paper.” Jd. On this point, the dissent noted, the Ninth Circuit decision directly conflicts with- EEOC vy. American Airlines, Inc., 48 F.3d 164 (Sth Cir. 1995), and “cabins preclusion doctrine so narrowly as to render it use- less.” App. 26a. Judge O’Scannlain also dissented from the majority’s holding that a disparate impact claim is cognizable under the ADEA, criticizing the majority for relying exclusively on the vacated and hence “defunct” decision in Arnett to support its conclusion. App. 33a. REASONS FOR GRANTING THE WRIT This case presents the Court with an opportunity finally to decide a question on which it has granted certiorari three times in the past: whether members of a “mandatory” Rule 23(b)(1) or (2) class are freed from the preclusive effect of a class judgment if they subsequently pursue a damages action. See Ticor Title Ins. Co. v. Brown, 511 U.S. 117 (1994) (cer- tiorari dismissed as improvidently granted); Adams vy. Robertson, 520 U.S. 83 (1997) (certiorari dismissed as im- 10 providently granted); Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) (decided on other grounds). The Ninth Circuit’s answer — that class members without opt-out nghts are not bound in subsequent damages suits — means that Rule 23(b)(1) and (2) class actions can bring no finality for defen- dants, as this case so amply illustrates, and thus cannot oper- ate as intended. The Ninth Circuit’s rule is also in conflict with decisions of other courts of appeals, which treat ade- quate representation, rather than opt-out nights, as the key to preclusion in the class action context. The decision below rests in part on a second, and equally unsound, rule of preclusion. According to the Ninth Circuit, any subsequent change in the facts underlying a judgment deprives the judgment of preclusive effect, regardless of whether that change has any bearing at all on the legal claims at issue. Here, the plaintiff class’s Title VII claim focuses on the differences in allowable weights for men and women. But according to the Ninth Circuit, the fact that United in- creased its weight allowances by identical amounts for men and women somehow nullifies the effect of the original class judgment — which sustained precisely the same differential between male and female weight allowances. The Ninth Circuit’s new test cannot be reconciled with Montana v. United States, 440 U.S. 147, 157-58, 62 (1979), under which factual changes defeat preclusion only when they are “sig- nificant” and “material” to the underlying claims, and di- rectly conflicts with EEOC v. American Airlines, 48 F.3d 164 (Sth Cir. 1995), as well as numerous other court of ap- peals decisions. Finally, the decision below deepens a persistent circuit split on an entirely separate question: whether disparate im- pact claims are cognizable under the Age Discrimination in Employment Act (“ADEA”). The Court reserved this ques- tion in Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), though its reasoning suggested that only disparate treatment i i 11 claims are cognizable under the ADEA. In fact, the Tenth Circuit reviewed this same United policy and concluded that the ADEA did not permit disparate impact claims. Ellis vy. United Airlines, Inc., 73 F.3d 999 (10th Cir. 1996). Given the practical importance of this question to the millions of employees and employers affected, the Court should take this opportunity to clarify the import of Hazen Paper and resolve the issue. I. THE NINTH CIRCUIT’S RULING ON THE PRE- CLUSIVE EFFECT OF THE ALPA CLASS AC- TION JUDGMENT MARKS A _ DRAMATIC CHANGE IN PRECLUSION LAW AND CON- FLICTS WITH NUMEROUS COURT OF APPEALS DECISIONS. The Ninth Circuit offered two reasons as to why the ALPA judgment did not preclude re-litigation of United’s policy: that the Rule 23(b)(2) ALPA class did not permit class members to opt out, and that United’s revisions to its policy — the two pound increase for both women and men — rendered preclusion inoperative. Both of these extraordinary justifications conflict with the decisions of this Court and numerous courts of appeals, and require this Court’s review. A. The Ninth Circuit’s Rule That Opt-Out Rights Are Necessary Before Class Action Judgments Will Be Given Full Preclusive Effect Raises A Fundamental Question About Preclusion Law That This Court Previously Has Granted, But Never Resolved. The Ninth Circuit’s first rationale can be stated simply: a judgment in a class action does not have full preclusive ef- fect — that is, it will not preclude subsequent claims for monetary damages — unless potential class members were entitled to opt out of the action. This rule would render Rule 12 23(b)(2) of the Federal Rules of Civil Procedure, which al- lows for class certification without an opt-out right, a tool for binding defendants but not plaintiffs. It runs directly con- trary to the terms and purpose of Rule 23, and departs sharply from decisions in other courts of appeals. This Court has three times granted certiorari to resolve whether and when members of a “mandatory class” — class members without opt-out nghts — may be bound by a class judgment, but the Court was unable to reach the issue in any of those cases. See Ticor Title Ins. Co. v. Brown, 511 US. 117 (1994) (certiorari dismissed as improvidently granted); Adams v. Robertson, 520 U.S. 83 (1997) (certiorari dis- missed as improvidently granted); Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999) (decided on other grounds).° This case does not present the vehicle problems that plagued Ticor Ti- tle and Adams, and the Court should take this opportunity to resolve this very important question.° * The question presented in Ticor Title was, “Whether a federal court may refuse to enforce a prior federal class action judgment, properly cer- tified under Rule 23, on grounds that absent class members have a constitutional due process right to opt out of any class action which asserts monetary claims on their behalf.” The question presented in Adams was, “Whether the certification and settlement of this nationwide state court class action, with no right to opt out, violate the Due Process Clause of the Fourteenth Amendment when the claims extinguished by the settlement are predominately, if not exclusively, monetary damages claims.” One of the questions granted in Ortiz, but not definitively answered, was, “Does the Due Process Clause permit a federal court to bind absent class members (including residents of the state where the action is brought) to a class action judgment that alters their in personam claims for money damages without giving them a chance to opt out, when those class members lack minimum contacts with the forum state.” ° The Court dismissed Adams as improvidently granted because the question presented to the Court for review was not “addressed by or properly presented to the state court that rendered the decision.” 520 U.S. at 86. Because the Ninth Circuit explicitly ruled on the preclusive effect of a Rule 23(b)(2) class action, the problem of Adams is not present here. 13 1. With virtually no explanation or supporting citation, the Ninth Circuit concludes that the procedural protections offered the ALPA class members were “not sufficient under Rule 23 to preclude monetary claims in later suits, for the class in ALPA was certified and given notice as a Rule 23(b)(2) ‘injunction’ class action.” App. 10a. What the court deems dispositive is that unlike Rule 23(b)(3) — under which the instant class was certified — Rule 23(b)(2) does not require that potential class members be able to opt out. Jd. 10a-1la. Because the ALPA class had no opt-out rights, the court holds, the ALPA judgment could not preclude the monetary claims raised in this Rule 23(b)(3) action. Jd.’ The only case the Ninth Circuit cites to support this hold- ing, Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), is entirely inapposite. It does not address preclusion, Rule 23(b)(2), or opting out, but merely Rule 23(b)(3) notice and who must pay for it. See Eisen, 417 U.S. at 173-79 (Rule 23(b)(3) requires that plaintiff class receive notice and bear costs of notice). Though nowhere cited in the decision below, the Ninth For a discussion of the vehicle problem in Ticor Title (and its absence in this case), see note 8 infra. ” The Ninth Circuit addressed and rejected United’s preclusion ar- guments only under the rubric of claim preclusion, paying no serious attention to United’s alternative claim that re-litigation of respondents’ allegations concerning its former weight requirements is barred by issue preclusion principles. App. 13a-14a; id. at 7a n.4 (distinguishing claim and issue preclusion). Though United believes, for the reasons set out in this petition, that claim preclusion applies in this case, it also preserves its alternative argument for application of issue preclusion principles under Montana v. United States, 440 U.S. 147 (1979). As argued to the district court and the Ninth Circuit, even if the technical requirements of claim preclusion do not apply, the issue decided by the Ninth Circuit - whether the differences between United’s male and female charts consti- tute unlawful sex discrimination — was squarely decided in United’s fa- vor in the ALPA litigation. 14 Circuit’s prior decision in Brown v. Ticor Title Ins. Co., 982 F.2d 386 (9th Cir. 1993), cert. granted, 510 U.S. 810, cert. dismissed as improvidently granted, 511 U.S. 117 (1994), seems clearly to be the basis for the court’s holding. In Jicor Title, the Ninth Circuit held that under the Due Process Clause, class members may not be bound by a class judg- ment disposing of monetary claims unless they had been af- forded an opportunity to opt out of the class litigation. 982 F.2d at 392. Because the prior class action in Jicor Title had been certified under Rules 23(b)(1) and (b)(2), neither of which provides opt-out nghts, the court concluded that the prior class judgment had no preclusive effect with respect to damages claims. J/d.; see also Ticor Title, 511 U.S. at 120 (discussing Ninth Circuit opinion). The opinion below makes sense only as an application of the constitutional rule announced in Ticor Title — the rule this Court has already granted certiorari to review.® In the Ninth Circuit, absent class members have a due process nght to opt out of any class action that asserts monetary claims on their behalf. Ticor Title, 982 F.2d at 392; see also 511 U.S. at 120 (describing Ticor Title). It apparently follows, as the court held below, that if potential class members are not given a right to opt out of litigation leading to a class judgment — as * The ground on which the Court dismissed certiorari in Ticor Title does not apply in this case. In Ticor Title, as noted above, the initial Rule 23(b)(2) class sought monetary as well as equitable relief. This raised the question whether, under the Federal Rules of Civil Procedure, the initial class was properly certified under Rule 23(b)(2), or whether it should have been certified under Rule 23(b)(3) — in which case opt-out nghts would have attached. Because that non-constitutional question could have disposed of the case, but was not properly before the Court, the Court dismissed the writ as improvidently granted. Ticor Title, 511 U.S. at 121-22. In this case, by contrast, there is no question that the ALPA class, which sought only equitable relief, was properly certified under Rule 23(b)(2). See supra n. 1. The alternative rationale discussed by the Court in Ticor Title is therefore unavailable. 15 in 23(b)(2) class actions — then that judgment cannot pre- clude their subsequent monetary claims. App. 1 la. 2. The Ninth Circuit’s rule basing the preclusive effect of a class action judgment on the presence or absence of opt- out rights is inconsistent with the structure and purpose of Rule 23. Rule 23(b)(2), like Rule 23(b)(1) and in pointed contrast to Rule 23(b)(3), does not provide for any right to opt out. But the essential function of certifying a class action under any of the subsections of Rule 23, including Rule 23(b)(2), is to give the resulting judgment binding effect on — all class members under normal principles of res judicata. See Rule 23(c)(3) and Fed. R. Civ. P. 23 1966 Advisory Committee’s Note, reprinted in 39 F.R.D. 69, 105-06; 5 James Wm. Moore et al., Moore’s Federal Practice § 23.11 (3d ed. 1997); 7B Charles Alan Wright et al., Federal Prac- tice and Procedure § 1789 (2d ed. 1986) (hereinafter “Wright & Miller”). To deny full preclusive effect to class actions under Rule 23(b)(1) and (b)(2), as is the rule under Ticor Title and the decision below, effectively invalidates class certification under those provisions whenever claims for monetary damages are subsequently raised. The practical effects of this rewriting of Rule 23 are stark. First, the decision below creates a no-win Situation for the defendant in a Rule 23(b)(2) class action. If the defen- dant loses, it is subject to declaratory and equitable relief, including back pay, and may be fully bound by that result in a subsequent suit for monetary relief. If the plaintiff class loses, on the other hand, it is entirely free to re-litigate the merits of the case, simply by filing a second lawsuit seeking damages. This “heads I win, tails you lose” scenario is pre- cisely what the drafters of Rule 23 sought to avoid when they amended the Rule in 1966: the 1966 amendments eliminated so-called “one-way interventions,” in which potential class members could secure the benefits of class judgments with- out being bound by them, by providing that all class judg- 16 ments were entitled to full preclusive effect. See Advisory Committee’s Note, 39 F.R.D. at 105-06. Second, the decision below permits duplicative litigation of the same issues — exactly what has occurred here. Repeti- tious litigation of this sort always burdens both the courts and litigants.” But it is especially problematic when — as is necessarily the case under the Ninth Circuit rule — the prior judgment denied preclusive effect comes in a Rule 23(b)(1) or (2) class action. Under those provisions, class treatment is appropriate precisely because separate proceedings might be inequitable or impracticable, creating a risk of inconsistent or incompatible relief or exhausting a limited pool of funds be- fore all plaintiffs can be compensated. See Fed. R. Civ. P. 23(b)(1)(2). By definition, depriving such a class judgment of full preclusive effect promotes the risk of unfair and in- consistent treatment of plaintiffs and defendants, the very results that a properly certified 23(b)(1) or (b)(2) class action is designed to avoid.'° Nor will the undesirable effects of the Ninth Circuit’s * The unfairness of the burden that may be imposed on a defendant is amply illustrated here, where the Ninth Circuit not only allowed re- litigation of the claim, but reached exactly the opposite conclusion from the ALPA court on the same issue — whether the differences between United’s male and female charts were unlawful — despite the fact that the ALPA court rejected as inapposite the same evidence upon which the Ninth Circuit relied as a matter of law. '° Indeed, in these cases the interest in avoiding separate litigation is so strong that other circuits and leading commentators have expressed a preference for certifying class actions under Rules 23(b)(1) and (b)(2) where their standards are met — even if Rule 23(b)(3), with its opt-out rights, is also available — explaining that it is a virtue and not a vice that class members may be bound without a right to opt out of the litigation. See, e.g., Kyriazi v. Western Elec. Co., 647 F.2d 388, 393 (3d Cir. 1981); Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 249, 253 (3d Cir. 1975); In re A.H. Robins Co., 880 F.2d 709, 728 (4th Cir. 1989); 7A Wright & Miller, supra, § 1772, at 424-26. 17 rule be limited to that circuit, at least in any practical sense. A plaintiff class can file a class action against a national cor- poration like United in virtually any federal district court. Thus, a 23(b)(2) class that has lost a judgment can avoid the judgment by “forum shopping” — retooling its complaint to seek damages and proceeding as a 23(b)(3) class in any dis- trict court in the Ninth Circuit. A rush to re-litigate in the Ninth Circuit is especially likely to occur in Title VII cases. Until the Civil Rights Act of 1991, Title VII provided only for equitable relief, including backpay, so that Title VII class actions were certified almost exclusively under Rule 23(b)(2), with no opt-out rights. Accordingly, unless this Court reverses the decision below, any pre-1991 judgment in a Title VII class action, as well as most post-1991 class judgments, would be open to re-litigation if the class simply seeks damages and files in the Ninth Circuit. 3. The decision below ignores a long line of Supreme Court precedent regarding the preclusive effect of a class ac- tion judgment. It is also in conflict with decisions of other courts of appeals that have rejected the Ninth Circuit’s prem- ise and instead have followed the approach set out by this Court. a. The opinion below, like Ticor Title, departs dra- matically from well established Supreme Court precedent that bases the preclusive effect of a class action judgment not on whether the original class litigation provided an opportu- nity to opt out, but instead on whether class members were adequately represented in the previous litigation. In its seminal class action case, Hansberry v. Lee, 311 U.S. 32 (1940), the Court acknowledged the general principle that everyone is entitled to his or her day in court, id. at 40, but concluded that “there is scope within the framework of the Constitution for holding in appropriate cases that a judgment rendered in a class suit is res judicata as to members of the class who are not formal parties to the suit,” id. at 42. Ac- 18 cording to the Court, the touchstone of res judicata in the class action context is adequate representation: “It is famil- iar doctrine of the federal courts that members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present.” Jd. at 42-43; see also id. at 42 (“this Court is justified in saying that there has been a failure of due process only in those cases where it cannot be said that the procedure adopted, fairly insures the protection of the interests of absent parties who are to be bound by it”). In numerous cases since Hansberry, the Court has con- tinued to stress the critical role of adequate representation in evaluating the preclusive effect of a class judgment. See, e.g., Martin v. Wilks, 490 U.S. 755, 762 n.2 (1989) (“We have recognized an exception to the general rule [that every- one is entitled to his or her day in court] when, in certain limited circumstances, a person, although not a party, has his interests adequately represented by someone with the same interests who is a party.”); Sam Fox Pub. Co. v. United States, 366 U.S. 683, 691 (1961) (“the judgment in a class action will bind only those members of the class whose in- terests have been adequately represented by existing parties to the litigation.”); Richards v. Jefferson County, 517 U.S. 793, 800-02 (1996) (holding that an earlier judgment had no preclusive effect because class representatives did not ade- quately represent interests of class members). See also Her- bert Newberg & Alba Conte, Newberg on Class Actions §1.13 (3d ed. 1992) (rights of absent class members are pro- tected as matter of due process if members are adequately represented in litigation). The Court recently has highlighted the importance of adequate representation in the context of mandatory class actions like the one at issue here. In Ortiz v. Fibreboard, the Court noted the “tension” between the “day-in-court ideal” and mandatory class actions, in which class members have 19 no legal right to opt out of the litigation. 119 S. Ct. at 2314. But the Court never has suggested that mandatory class judgments are excluded from the normal rules of res judi- cata. Instead, the Court held, federal courts must exercise “heightened attention” when certifying mandatory classes to ensure that class members are adequately represented. Id. at 2316. See also Amchem Prod. v. Windsor, 521 U.S. 591, 621 (1997) (noting the need for careful review of class certi- fication to ensure adequate representation “‘so that absent members can fairly be bound by decisions of class represen- tatives”).'! b. The Ninth Circuit’s conclusion that the absence of opt-out rights itself suffices to deprive Rule 23(b)(1) and (b)(2) class judgments of full preclusive effect is — not sur- prisingly — in conflict with decisions of other courts of ap- peals. Those courts have held that a class judgment pre- cludes monetary claims regardless of whether class members are entitled to opt out of the litigation. See Kyriazi, 647 F.2d at 393 (judgment in Rule 23(b)(2) class action binds class members as to monetary claims despite lack of opt-out rights); In re Agent Orange Prod. Liab. Litig., 996 F.2d 1425, 1435 (2d Cir. 1993) (rejecting argument that due proc- ess requires opt-out rights before class members unaware of injuries may be bound as to monetary claims); see also Gonzales v. Cassidy, 474 F.2d 67, 74 & n.12 (Sth Cir. 1973) (Rule 23(b)(2) class actions generally afforded preclusive effect despite absence of opt-out rights). ' It is not clear whether notice plays any independent role in deter- mining the preclusive effect of a class judgment where the adequate rep- resentation standard is met. See Richards, 517 U.S. at 799-800 (assum- ing without deciding that adequate representation may “cure” a lack of notice). That question is not implicated here. Although the Ninth Circuit briefly discussed notice requirements, it expressly declined to base its holding on the notice provided to the ALPA class members. App. 10a- Ila. 20 Following the lead of this Court, the courts of appeals other than the Ninth Circuit treat adequate representation, rather than a night to opt out, as the critical factor necessary to bind absent class members to a class judgment under both Rule 23 and the Due Process Clause. See, e.g., In re Agent Orange, 996 F.2d at 1435 (absent class members’ interests best protected by “ensuring that they receive vigorous and faithful vicarious representation”); Gonzales, 474 F.2d at 74 (due process requires adequate representation for class judgment to be res judicata as to absent class members); Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 256 (3d Cir. 1975) (“as long as the representation is adequate and faithful, there is no unfairness in giving res judicata effect to a judg- ment against all members of [a Rule 23(b)(2)] class”); Laskey v. UAW, 638 F.2d 954, 956-57 (6th Cir. 1981) (ade- quate representation, rather than opt-out nght, as precondi- tion for binding absent class members to judgment). '” By resurrecting TJicor Title in the decision below, the Ninth Circuit reiterated its disagreement with an entire line of Supreme Court cases and with the majority approach in the courts of appeals.'’ In light of the profound implications '2 In these federal circuits, the vehicle for challenging the adequacy of representation is generally a collateral attack in the court in which the prior class judgment is offered as a defense. See, e.g., Gonzales, 474 F.2d at 75 (permitting plaintiff to collaterally attack adequacy of prior class representation). This is in keeping with the “recognized principle that the court conducting the action cannot predetermine the res judicata effect of the judgment; this can be tested only in a subsequent action.” Advisory Committee’s Note, 39 F.R.D. at 106; see also 7B Wright & Miller, supra, § 1789, at 245-46; Note, Binding Effect of Class Actions, 67 Harv. L. Rev. 1059, 1060 (1954). '? In discussing the effect on subsequent litigation of the ALPA “set- tlement,” the court below did “rote that the terms of the settlement in ALPA appear not to protect the interests” of all class members. App. 1 la. But as explained supra at n. 4, United relied solely on the ALPA judg- ment and not any settlement for its preclusion arguments. In any event, the panel’s allusion to the merits of the post-judgment agreement be- tween the plaintiff class and United cannot have been intended as a find- ie ee La TT ee es 21 of this ruling for the viability of Rule 23(b)(1) and (2) class actions, the Ninth Circuit’s decision merits the Court’s im- mediate attention. B. The Ninth Circuit’s Holding That Immaterial Factual Changes Deprive A Judgment Of Any Preclusive Effect Conflicts With The Decisions Of This Court And Of Numerous Courts Of Appeals. Although the Ninth Circuit ostensibly offered two addi- tional reasons why the ALPA judgment cannot be given pre- clusive effect — that a “new” Title VII claim arose after the 1979 ALPA judgment and that this new claim was based on a different weight policy — these separately stated reasons are merely two ways of saying the same thing: United’s imple- mentation of a revised and more liberal policy in 1980, pur- suant to the ALPA judgment, stripped the 1979 ALPA judg- ment of preclusive effect. See App. 24a (O’Scannlain, J., dissenting) (rationales are “part and parcel of the same ar- gument” and “logically indistinguishable”). This is so, under the Ninth Circuit’s rationale, regardless of whether the changes to United’s weight policy — which in fact applied even-handedly to men and women — had any material bear- ing on the legal claims at issue. The Ninth Circuit’s conclu- sion squarely conflicts with decisions of several other courts of appeals, ignores controlling Supreme Court precedent, and represents a fundamental change in preclusion law that will be felt nationwide. ' ing of inadequate representation by the ALPA class representatives. Re- spondents never challenged the adequacy of the ALPA representation before the district court or the Ninth Circuit, and there was accordingly nO Opportunity to defend the adequacy of that representation. As Judge O’Scannlain recognized, by failing “to assert that they were inadequately represented,” respondents “have simply waived the “inadequate represen- tation’ argument.” App. 31a. '* To the extent the Ninth Circuit intended to put independent weight on its “first” rationale and suggest that a class action judgment cannot 22 1. Until now, it had long been understood that “[a]bsent significant changes in controlling facts,” an earlier judgment on the merits precludes re-litigation of the same issue. Mon- tana v. United States, 440 U.S. 147, 157-58 (1979); see id. at 162 (“normal rules of preclusion should operate” when the factual context “in which the issues . . . arise has not materi- ally altered”) (emphases added); see also 18 Moore et al., supra, § 132.02[2][e] (whether preclusion applies depends “on whether controlling facts have changed significantly since the earlier judgment’). In other words, immaterial fac- tual changes do not override the important principles of pre- clusion. The Ninth Circuit’s decision directly conflicts with EEOC v. American Airlines Inc., 48 F.3d 164 (5th Cir. 1995), in which the Fifth Circuit faced a situation virtually identical to this one but came to a very different result. That case began with a 1970s class action challenging American’s employment policy under the ADEA. The Court of Appeals for the Distnct of Columbia Circuit upheld the policy in 1981. Murnane v. American Airlines, Inc., 667 F.2d 98 (D.C. Cir. 1981). American subsequently revised its policy in favor of the class, expanding the pool of individuals eligi- ble for employment. American Airlines, 48 F.3d at 166. The EEOC then filed suit against American, arguing that its re- vised policy violated the ADEA. When American argued that the 1981 judgment precluded re-litigation of the policy’s legality, EEOC responded that the “new, more liberal pol- icy” negated any preclusive effect that the 1981 judgment may otherwise have had. Jd. at 167. Applying Montana, the bind future class members, its reasoning flies in the face of longstanding preclusion principles. It is well established that a judgment in a class action “may actually bind future claimants, i.e., those persons whose claims have not ripened at the time the judgment is entered but who sub- sequently come within the defined class.” 18 Moore et al., supra, § 131.40[3][e] [iii]. a Fifth Circuit described the EEOC’s position — identical to the Ninth Circuit’s here — as “both counterintuitive and illogi- cal.” Jd. at 169. As the Fifth Circuit stated, “i]t is not enough to avoid the preclusive effect of the prior determina- tion for the EEOC to show merely a change in facts: a change must have occurred in facts that were essential to the judgment and were ‘of controlling significance.’” Jd. at 168 (citing Montana, 440 U.S. at 159-61). The Ninth Circuit’s decision also conflicts with virtually every court of appeals that has considered this question. Like the Fifth Circuit, the federal courts of appeals — with the exception of the Ninth Circuit in the opinion below — have consistently applied Montana’s “significant changes” test to determine whether subsequent factual changes deprive an earlier judgment of preclusive effect. See, e.g., DeCosta v. Viacom Int'l, Inc., 981 F.2d 602, 605, 610-12 (1st Cir. 1992) (Breyer, C.J.) (holding that an earlier judgment had preclu- sive effect because there were no significant factual changes); Niagara Frontier T. ariff Bureau, Inc. v. United States, 826 F.2d 1186, 1190 (2d Cir. 1987) (applying Mon- tana to hold judgment preclusive absent “changes in control- ling facts”); Raytech Corp. v. White, 54 F.3d 187, 193-95 (3d Cir. 1995) (applying Montana to hold Judgment preclusive because evidence of new facts did not “establish a change in facts essential to the [earlier] judgment.”); Coleman v. Com- missioner of Internal Revenue, 16 F.3d 821, 830-31 (7th Cir. 1994) (holding judgment preclusive because there was “no significant change in the controlling facts”); RTS Inv. Corp. v. Commissioner of Internal Revenue, 877 F.2d 647, 650 (8th Cir. 1989) (citing Montana for proposition that there is no re- litigation when “factual and legal context . . . [are] not mate- nally altered” since the original judgment); Klein v. Commis- sioner of Internal Revenue, 880 F.2d 260, 262-64 (10th Cir. 1989) (applying Montana to hold judgment preclusive be- cause new testimony did not “alter the controlling facts”); North Georgia Elec. Membership Corp. v. City of Calhoun, 24 989 F.2d 429, 436 (11th Cir. 1993) (applying Montana to bar re-litigation because there was no change to “[tJhe facts es- sential to the judgment’); Cutler v. Hayes, 818 F.2d 879, 890 n.88 (D.C. Cir. 1987) (applying Montana to hold that the al- leged new facts were “immaterial to the legal basis on which the [earlier] court’s ultimate findings on standing rested, and so could not demonstrate a change in controlling facts suffi- cient to justify an exception to [preclusion] principles.”); Arkla, Inc. v. United States, 37 F.3d 621, 625 (Fed. Cir. 1994) (applying Montana to hold that “because neither fac- tual difference in this case alters any of these facts essential to the judgment [in the earlier litigation], the differences do not prevent operation” of preclusion). The Ninth Circuit, by contrast, has ignored the clear lan- guage of Montana and applied a different test for determin- ing when factual changes deprive a prior judgment of preclu- sive effect: preclusion does not apply unless “the two suits arise out of the same transactional nucleus of facts,” App. 10a, and regardless of whether any factual change is signifi- cant or material to the legal claims at issue. Under this test, it appears that any revision to a previously approved policy — no matter how immaterial and even if favorable to plaintiffs — will necessarily thwart the defense of preclusion. In the Ninth Circuit, whether a change was significant or involved a controlling fact — the key inquiry in Montana and the courts of appeals following Montana — is wholly irrelevant. The difference is much more than semantic. If the Ninth Circuit had applied Montana’s “significant changes” test, which governs in the First, Second, Third, Fifth, Seventh, Eighth, Tenth, Eleventh, D.C., and Federal Circuits, United’s across-the-board two-pound increase in allowable weights and further increases based upon age — revisions favorable to the plaintiff class and applied equally to men and women — would not constitute a change sufficiently material to deprive the ALPA judgment of preclusive effect. See App. 26a 25 (O’Scannlain, J., dissenting) (applying correct standard and finding that “the new policy does not differ from the old one in any way that is itself material to the plaintiffs’ claim”). If, on the other hand, the Fifth Circuit in EEOC v. Ameri- can Airlines had applied the standard that now governs in the Ninth Circuit, there is no doubt that the EEOC could have re- litigated the legality of American’s revised and liberalized policy on the theory that its new claim did not arise from the “same transactional nucleus of facts” as the prior judgment. In fact, if American Airlines has revised its policy since the Fifth Circuit’s decision in American Airlines, the EEOC will now be free to challenge American’s policy simply by filing yet another suit in a Ninth Circuit district court. Equally perplexing, if United reinstates its weight policy and adds two pounds to its charts (or even deducts two pounds), United apparently could re-litigate the validity of its weight policy despite the Ninth Circuit’s holding below, for accord- ing to the Ninth Circuit, the “new” policy would not arise from the “same transactional nucleus of facts” underlying the claims in this case. 2. The Ninth Circuit’s new test creates a giant preclu- sion loophole, permitting unsuccessful plaintiffs to re-litigate the legality of hundreds of policies already upheld by other courts throughout the country simply by filing suit in the Ninth Circuit. Policies like the one at issue here — litigated, approved, and subsequently revised in favor of a plaintiff class — will become fair game for complete re-litigation, even though all of the parties had understood that the matter was settled years ago and acted accordingly. If this decision is allowed to stand, plaintiffs and defendants alike will suffer the consequences: defendants, because their policies, once upheld, will remain subject to attack if they make even the ‘most insignificant of changes; and plaintiffs, because they will soon find that defendants are unwilling to open them- selves up to repeat litigation by making accommodations that 26 would have been favorable to the plaintiffs’ interests. The doctrines of preclusion exist to prevent these very results.'° Il. THE FEDERAL CIRCUITS ARE SHARPLY DI- VIDED ON WHETHER DISPARATE IMPACT CLAIMS ARE COGNIZABLE UNDER THE ADEA AFTER THIS COURT’S DECISION IN HAZEN PAPER. The Ninth Circuit’s holding that the ADEA permits a disparate impact claim directly conflicts with decisions of the First, Seventh, and Tenth Circuits. Those courts of ap- peals, which have carefully analyzed the question in light of Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993), have con- cluded that the ADEA provides no action for disparate im- pact. The Ninth Circuit, on the other hand, like the Second . and Eighth Circuits, continues to cling to pre-Hazen case law and hold that the ADEA allows disparate impact actions. The question is one of immense practical importance both to employees and employers, given that tens of millions of workers qualify for ADEA protection. The pronounced cir- cuit conflict on this question merits this Court’s review. 1. In Hazen Paper, the question before the Court was whether “an employer violates the ADEA by acting on the basis of a factor . . . that is empirically correlated with age.” 507 U.S. at 608. The Court distinguished between disparate treatment claims, which turn on whether the protected trait motivated the employer, and disparate impact claims, which involve facially neutral practices that in fact fall more harshly on one group than another and cannot be justified by business necessity. Jd. at 610. The Court then concluded 'S Even if the Ninth Circuit correctly concluded that the ALPA judg- ment lacked preclusive effect, it erred in granting respondents summary judgment on the issue of Title VII liability, as there were undoubtedly material issues of fact still in dispute. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 27 that no cause of action for disparate treatment is available under the ADEA when a factor other than age motivates an employer, even if that factor is correlated with age. Id. at 609. Hazen Paper specifically left open the question whether the ADEA permits an action for disparate impact. See id. at 610. The opinion, however, makes clear that “[d]isparate treatment . . . captures the essence of what Congress sought to prohibit in the ADEA.” Jd. What Congress was con- cerned about, the Court held, was the denial of employment opportunities to older workers based on their age and on “‘in- accurate and stigmatizing stereotypes” that they would be unproductive because of their age. Jd. at 610-11. But “the problem of inaccurate and stigmatizing stereotypes disap- pears” when an employer’s conduct is “motivated by factors other than age.” Jd. at 611. And “{t}his is true even if the motivating factor is correlated with age.” Id. What the Court in Hazen Paper describes as falling out- side the concerns that animated the ADEA is a disparate im- pact claim — a claim that an employment policy, though not actually based on age, correlates so closely with age that it has a disproportionate impact on older employees. “{T]he inescapable implication of [the Court’s] statements is that the imposition of disparate impact liability would not address the evils that Congress was attempting to purge when it enacted the ADEA.” Mullin v. Raytheon Co., 164 F.3d 696, 701 (1st Cir. 1999). Indeed, in a separate concurring opinion to Hazen Paper, Justice Kennedy, joined by the Chief Justice and Justice Thomas, emphasized this point, referring to “substantial arguments that it is improper to carry over dispa- rate impact analysis from Title VII to the ADEA.” 507 US. at 618. 2. The text and history of the ADEA support the Court’s indication in Hazen Paper that the ADEA does not recognize disparate impact claims. The ADEA prohibits employment 28 decisions based upon the age of any employee forty years or older. 29 U.S.C. §§ 623(a), 631(a) (1994). But the ADEA also expressly provides that “(i]t shall not be unlawful for an employer . . . to take any action otherwise prohibited . . . where the differentiation is based on reasonable factors other than age.” 29 U.S.C. § 623(f)(1) (1994) (emphasis added). By definition, a disparate impact claim rests upon a factor “other than age;” an employment decision actually based upon age is an action for disparate treatment, not disparate impact. It follows that § 623(f)(1) precludes a disparate im- pact claim under the ADEA. See Markham v. Geller, 451 U.S. 945, 949 (1981) (Rehnquist, J., dissenting from denial - of certiorari) (citing 29 U.S.C. § 623(f)(1) as conclusive evi- dence that Congress did not intend the ADEA to recognize disparate impact claims). Not surprisingly, the Court came to just this conclusion when reviewing virtually identical language in the Equal Pay Act, 29 U.S.C. § 206(d), which prohibits wage discrimina- tion based on sex but excepts payment of differential wages to men and women “based on any other factor other than sex.” 29 U.S.C. § 206(d)(1)(iv) (1994) (emphasis added). See County of Washington v. Gunther, 452 U.S. 161, 169-70 (1981). A disparate impact claim simply cannot be recon- ciled with such limits on liability: “The prohibition and ex- ception appear identical. The sentence is incomprehensible unless the prohibition forbids disparate treatment and the ex- ception authorizes disparate impact.” Douglas Laycock, Continuing Violations, Disparate Impact in Compensation, - and Other Title VII Issues, 49 L. & Contemp. Probs. 53, 55 (1986) (discussing Equal Pay Act). Even before the decision in Hazen Paper caused the Seventh Circuit to change its course, Judge Easterbrook observed that the “language, structure, and history of the ADEA have led thoughtful peo- ple to conclude . . . that disparate impact analysis is inappli- cable in ADEA cases.” Metz v. Transit Mix, Inc., 828 F.2d 1202, 1220 (7th Cir. 1987) (Easterbrook, J., dissenting). rr i ee 29 3. Despite the import of Hazen Paper and the terms of the ADEA itself, the federal circuits are deeply divided over whether the ADEA permits disparate impact claims. Several courts of appeals have analyzed the issue carefully in light of Hazen Paper and concluded that the ADEA does not recog- nize disparate impact claims. See Mullin, 164 F.3d at 700, 703-04 (“[t]he tectonic plates [of ADEA disparate impact law] shifted” after Hazen Paper, precluding disparate impact liability under the ADEA); Ellis v. United Airlines, Inc., 73 F.3d 999, 1009 (10th Cir. 1996) (reviewing the same United policy and holding that “one cannot read [Hazen Paper] without receiving the strong impression that the Supreme Court is suggesting that the ADEA does not encompass a disparate impact claim.”); EEOC v. Francis W. Parker Sch., 41 F.3d 1073, 1076-78 (7th Cir. 1994) (Hazen Paper bars ADEA disparate impact claims).'® The Second, Eighth, and Ninth Circuits, on the other hand, have considered the question after Hazen Paper but continue to rely on their own pre-Hazen Paper case law to recognize disparate impact claims under the ADEA. The Second Circuit has acknowledged both Hazen Paper and the conflict in the courts of appeals, but continues to hold that the ADEA allows for suits under disparate impact theories. District Council 37 v. New York City Dep't of Parks & Rec- reation, 113 F.3d 347, 351 (2d Cir. 1997); see also Smith v. '° Other circuits have suggested that Hazen forecloses disparate im- pact claims under the ADEA. Broaddus v. Florida Power Corp., 145 F.3d 1283, 1287 (11th Cir. 1998) (citing Hazen for the proposition that the “ADEA does not prohibit an employer from making an employment decision on the basis of higher salaries, increased benefits, pension Status, or claims for medical expenses even though these characteris: s; are often correlated with an employee’s age.”); Gantt v. Wilson Sporting Goods Co., 143 F.3d 1042, 1048 (6th Cir. 1998) (Hazen creates “consid- erable doubt” that disparate impact claims are available under the ADEA) (citation omitted); DiBiase v. SmithKline Beecham Corp., 48 F.3d 719, 733 (3d Cir. 1995) (op. of Greenberg, J.) (“it is difficult to see how disparate impact liability can survive” Hazen). 30 Xerox Corp., 196 F.3d 358, 367 n.6 (2d Cir. 1999) (reiterat- ing that ADEA permits disparate impact claims but recogniz- ing split with First, Seventh, and Tenth Circuits). The Eighth Circuit takes the same position. EEOC v. McDonnell Doug- las Corp., 191 F.3d 948, 950 (8th Cir. 1999) (recegnizing split among federal circuits but adhering to circuit precedent allowing disparate impact claims under ADEA). And the Ninth Circuit repeatedly has refused to acknowledge that Hazen Paper has any impact upon ADEA disparate impact law, despite what the other courts of appeals may think. See, e.g., EEOC v. Local No. 350, 998 F.2d 641, 648 n.2 (9th Cir. 1993) (“We perceive no conflict between Hazen” and an ADEA disparate impact challenge). As the First Circuit has noted, these opinions substitute “reliance on pre-Hazen Pa- per precedents and the law of the circuit doctrine” for careful analysis of Hazen Paper. Mullin, 164 F.3d at 701. This case, in which the Ninth Circuit held that respon- dents’ claims were not actionable under disparate treatment theory but were actionable under a disparate impact theory, see note 3, supra, squarely presents the question whether the ADEA recognizes disparate impact claims. The Ninth Cir- cuit’s holding deepens the split in the federal circuits on that question. The Court should grant review to clarify the im- pact of Hazen Paper and resolve this important issue. CONCLUSION For the foregoing reasons, the petition for writ of certio- rari should be granted. Le is “a Ee e. i. i & JENNIFER ANSBRO HALE United Airlines, Inc. 1200 East Algonquin Road Elk Grove Village, IL 60007 (847) 700-4194 Attomeys for Petitioner Respectfully submitted, WALTER E. DELLINGER (Counsel of Record) TOM A. JERMAN PAMELA HARRIS SRI SRINIVASAN JOHN B. OWENS O’MELVENY & MYERS LLP 555 13th Street, N.W. Washington, D.C. 20004 (202) 383-5300 APPENDIX la APPENDIX A UNITED STATES COURT OF APPEALS NINTH CIRCUIT Nos. 98-15638, 98-16687 LESLIE FRANK; PAT PARNELL; SUSAN BRODERICK; CAROLE KIRK; NICHKOL MELANSON; SANDRA HUFF; DIANE DAVIS; SHARON BENJAMIN; SHARRON K. TAYLOR; BLAND LANE; JOAN BALLA WEAVER; DONNA DURKIN; ELLEN McCormick, Plaintiffs-Appellants, v. UNITED AIRLINES, INC., Defendant-Appellee. Appeals from the United States District Court for the Northern District of California. June 21, 2000 Before: REINHARDT, O'SCANNLAIN, and W. FLETCHER, Circuit Judges. W. FLETCHER, Circuit Judge: From 1980 to 1994, defendant United Airlines, Inc. ("United") required flight attendants to comply with maximum weight requirements based on sex, height and age. Failure to maintain weight below the applicable maximum subjected a flight attendant to various forms of discipline, including suspension without pay and termination. In 1992, plaintiffs filed this action on behalf of a class of female flight attendants to challenge these weight requirements. 2a Plaintiffs contend that by adopting a discriminatory weight policy and enforcing that policy in a discriminatory manner, United discriminated against women and older flight attendants in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634; the Americans with Disabilities Act ("ADA"), 42 US.C. §§ 12101-12213; and the Califomia Fair Employment and Housing Act ("FEHA"), Cal. Gov't Code §§ 12900- 12996. The district court granted summary judgment for defendant on all of plaintiffs’ class and individual claims. We have jurisdiction under 28 U.S.C. § 1291. We reverse in part and affirm in part. I During the 1960s and early 1970s, the standard practice among large commercial airlines was to hire only women as flight attendants. The airlines required their flight attendants to remain unmarried, to refrain from having children, to meet weight and appearance criteria, and to retire by the age of 35. See Gerdom v. Continental Airlines, Inc., 692 F.2d 602, 605-06 (9th Cir.1982) (en banc) (collecting cases). Like other airlines, defendant United had a long-standing practice of requiring female flight attendants to maintain their weight below certain levels. After it began hiring male flight attendants in the wake of Diaz v. Pan Am. World Airways, Inc., 442 F.2d 385 (Sth Cir.1971), United applied maximum weight requirements to both male and female flight attendants.' Flight attendants--a group comprised of ' Although United historically had male flight attendants of Hawaiian descent on flights to Hawaii, those positions were treated as a separate category from other flight attendant positions, and United did not require the "Hawaiian stewards” to meet weight restrictions. Even after United began hiring men as flight attendants on non-Hawaiian flights and 3a approximately 85% women during the time period relevant to this suit--are the only employees United has ever subjected to maximum weight requirements. United abandoned its weight requirements for flight attendants in 1994.2 Between 1980 and 1994, United required female flight attendants to weigh between 14 and 25 pounds less than their male colleagues of the same height and age. For example, the maximum weight for a 5'7", 30-year-old woman was 142 pounds, while a man of the same height and age could weigh up to 161 pounds. A 5'11", 50-year-old woman could weigh up to 162 pounds, while the limit for a man of the same height and age was 185 pounds. United's weight table for men during this period was based on a table of desirable weights and heights published by the Metropolitan Life Insurance Company ("MetLife"). The comparable weight table for women was based on a table of maximum weights established by Continental Air Lines ("Continental"). A comparison of United's MetLife-derived limits for men to the Continental-derived weight limits for women reveals that United generally limited men to maximum weights that corresponded to large body frames for men on the MetLife charts but generally limited women to maximum weights that corresponded to medium body frames for women on MetLife charts. The thirteen named plaintiffs worked for United as flight attendants while United's 1980-1994 weight policy was in effect. The named plaintiffs attempted to lose weight by various means, including severely restricting their caloric established maximum weight requirements for male flight attendants, the Hawaiian stewards remained exempt from weight requirements. * United suspended its weight program for approximately one year from September 1991 to September 1992. While that suspension may be relevant to damages, it is not relevant to the legal validity of plaintiffs’ claims. Bake Rees al rn iy ate ne We en eet 4a intake, using diuretics, and purging. Ultimately, however, plaintiffs were each disciplined and/or terminated for failing to comply with United's maximum weight requirements. In 1992, plaintiffs filed this employment discrimination action. They sought to represent plaintiff classes of female flight attendants for claims of sex and age discrimination, and they asserted various claims of individual discrimination. On March 15, 1994, the parties stipulated to certify a plaintiff class for the Title VII sex discrimination claim and a plaintiff subclass of members over 40 years old for the ADEA age discrimination claim. On April 12, 1994, the district court certified a Title VII class comprised of all female flight attendants employed by United, currently or in the future, and all female flight attendants who were terminated, retired or resigned on or after January 5, 1989, as a result of their failure to comply with United's weight requirements[;] and an ADEA subclass comprised of all female flight attendants, age 40 or above, employed by United currently, or who were terminated, retired or resigned after January 5, 1989 as a result of their failure to comply with United's weight requirements. Neither party challenges the 1989 cutoff date for certification of the class. The parties stipulated in the class certification order that individual notice would be sent to all members of the Title VII class and all potential members of the ADEA subclass. Although the order stated that the class was certified under Federal Rule of Civil Procedure 23(b)(2), as a so-called "injunction" class action, the notice actually sent satisfied the heightened notice required for a Rule 23(b)(3) "damages" Sa class action, set forth in Rule 23(c)(2). The parties agree that the suit subsequently became a Rule 23(b)(3) class action after United abolished its weight program in 1994, thereby eliminating the need for injunctive relief. A form of notice, attached to the stipulation, provided that class members could "opt out" of the class certified for the Title VII claim. A second form of notice, also attached to the stipulation, provided that potential class members could “opt in" to the subclass certified for the ADEA claim. Shortly after the class and subclass were certified, United suspended its weight policy “until further notice" and retumed to service all attendants then held out of service under its weight policy. On August 16, 1994, United eliminated the weight policy entirely. In 1995, United offered to reinstate many class and subclass members who had been terminated under the weight policy. United did not require individuals accepting reinstatement to waive any potential claims against it arising from earlier discipline or termination. The parties filed cross-motions for summary judgment on plaintiffs’ class claim that United's weight policy discriminated against female flight attendants in violation of Title VII. On August 16, 1995, the district court denied plaintiffs’ motion and granted summary judgment for United. The court held that any facial attack on the weight policy was foreclosed by claim preclusion resulting from Air Line Pilots Ass'n Int'l v. United Air Lines, Inc. ("ALPA "), 26 F.E.P. Cases 607, 1979 WL 34 (E.D.N.Y.1979), a decision resolving a facial challenge to an earlier United weight policy. The district court permitted plaintiffs to go forward under Title VII only on claims that United discriminated in the administration of its weight policy. On February 26, 1997, the district court granted summary judgment for United on plaintiffs’ remaining class claims of 6a sex and age discrimination. The court held that plaintiffs had failed to present evidence of a pattern or practice of sex or age discrimination in the administration of the weight policy. The court further held that plaintiffs could not assert a disparate impact claim for sex discrimination based on United's administration of medical exceptions to the weight policy. Finally, applying the Tenth Circuit's decision in Ellis v. United Airlines, 73 F.3d 999 (10th Cir.1996), the court held that a disparate impact theory was not available under the ADEA. On March 1!, 1998, the district court entered an order granting summary judgment for United on all of plaintiffs’ individual claims. The court decertified the age and sex discrimination classes and denied plaintiffs’ application for costs.’ II We review de novo decisions granting summary judgment. See Robi v. Reed, 173 F.3d 736, 739 (9th Cir.1999). Viewing the evidence in the light most favorable to plaintiffs, we must determine whether genuine issues of material fact preclude summary judgment and whether the district court correctly applied the relevant substantive law. See Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir.1998). Questions of claim and issue preclusion are also reviewed de novo. See C.D. Anderson & Co., Inc. v. Lemos, 832 F.2d 1097, 1100 (9th Cir.1987). Ill > The district court did not, in most instances, separately address plaintiffs’ FEHA claims, but the parties acknowledge that those claims rise or fall with plaintiffs’ federal claims. 7a As a threshold matter, plaintiffs contend that the district court erred in holding that claim preclusion ‘ foreclosed their facial attack under Title VII. "[A] valid final adjudication of a claim precludes a second action on that claim or any part of it." Baker ex rel. Thomas v. General Motors Corp., 522 U.S. 222, 233 n. 5, 118 S.Ct. 657, 139 L.Ed.2d 580 (1998). For claim preclusion to apply, there must be (1) an identity of claims in the two actions; (2) a final judgment on the merits in the first action; and (3) identity or privity between the parties in the two actions. See Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th Cir.1997) (citing Blonder-Tongue Labs., Inc. v. University of Ill. Found., 402 U.S. 313, 323- 24, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971)). The district court concluded that plaintiffs’ facial Title VII claim is precluded by the 1979 district court decision in ALPA v. United Air Lines, Inc., cited above. Plaintiffs in ALPA, the Air Line Pilots Association and individual named plaintiffs, claimed on behalf of a class of United flight attendants that United's 1977 weight policy discriminated against female flight attendants in violation of Title VIL. Plaintiffs and United stipulated to class certification, and the district court certified a Rule 23(b)(2) class defined as all female flight attendants who are employed by United or who may become so employed in the future, and all former female flight attendants who were employed by United on or after October 14, * Rather than using the terms “res judicata” and “collateral estoppel,” the Supreme Court has generally used the terms “claim preclusion” and “issue preclusion.” See Migra v. Warren City School Dist. Bd. Of Educ., 465 U.S. 75, 77 n.1, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984). “Claim preclusion” refers to the preclusive effect of a judgment in foreclosing relitigation of claims that were raised or should have been raised in earlier litigation, and “issue preclusion” refers to the preclusive effect of a judgement in foreclosing relitigation of issues that have been actually and necessarily decided in earlier litigation. See id. 8a 1971 and were suspended, removed from service, or terminated by United for failure to meet United's flight attendant weight standards. Id. at 609. Notice to current employees was accomplished by placing the notice in their employee boxes. Notice to former employees was attempted by sending it to their last-known addresses. Because the class was certified under Rule 23(b)(2), plaintiffs could not opt out of the class. The district court in ALPA found that United's weight standards were not facially discriminatory, see 26 F.E.P. Cases at 615, 618, but that United had discriminated in applying those standards. See id. at 621-22. The court enjoined United from discriminating on the basis of sex in enforcing its weight standards, and it ordered reinstatement, back pay, and seniority credit for female flight attendants who had suffered discrimination. See id. at 626. The court wrote: United is free to continue using the flight attendant weight standards promulgated by United in May 1977. Nothing in the court's decision or order is intended to pass upon the validity of any other weight standard for male or female flight attendants that United might adopt in the future.... United's current weight standards for male and female flight attendants are valid,... United is not prohibited from adopting other standards, and ... the validity of any other standard has not been determined. Id. at 626 (emphasis added). After entry of judgment and while cross-appeals were still available, the parties settled the litigation. For their part, plaintiffs agreed not to appeal the district court's holding that the 1977 weight policy was not facially discriminatory. For its part, United agreed to alter its weight charts by slightly 9a increasing the weight limits and agreed not to appeal the district court's decision that United had discriminated in administering the weight policy. The terms of the settlement were described in a letter to the district court,’ but the court was never asked to approve the settlement, as it would have been required to do under Rule 23(e) if the parties had entered into the same settlement prior to entry of judgment. For several reasons, the district court in this case erred in giving claim preclusive effect to the ALPA judgment. First, the plaintiffs in this suit assert claims based on alleged Title VII violations arising after 1980. A claim arising after the date of an earlier judgment is not barred, even if it arises out of a continuing course of conduct that provided the basis for the earlier claim. See Lawlor v. National Screen Serv. Corp., 349 U.S. 322, 328, 75 S.Ct. 865, 99 L.Ed. 1122 (1955) ("While the 1943 judgment precludes recovery on claims arising prior to its entry, it cannot be given the effect of extinguishing claims which did not even then exist and which could not possibly have been sued upon in the previous case."). Because the judgment in ALPA was entered in 1979, under Lawlor it cannot preclude claims based on events occurring after that date. See id.; see also International Techs. Consultants, Inc. v. Pilkington, PLC, 137 F.3d 1382, 1388 (9th Cir.1998) ("By winning the first action, the defendants ‘did not acquire immunity in perpetuity from the antitrust laws.'"). * After the district court entered its order and judgment in ALPA, counsel for the plaintiff class wrote to the court "to confirm that ... neither side will appeal from any Order, Decision or Judgment heretofore issued by the Court[.]"_ A subsequent letter from class counsel Stated, inter alia: "United has agreed to revise its flight attendant weight program, effective February 1, 1980. For the information of the Court, a copy of the new program is annexed hereto[.}" 10a Second, plaintiffs’ litle VII claim is based on a different weight policy from that challenged in ALPA. The central criterion in determining whether there is an identity of claims between the first and second adjudications is "whether the two suits arise out of the same transactional nucleus of facts." Costantini v. Trans World Airlines, 681 F.2d 1199, 1201- 02 (9th Cir.1982) (setting forth test for identity of claims); see also Hawaiian Tel. Co. v. Public Utils. Comm'n, 827 F.2d 1264 (9th Cir.1987). Recognizing the possibility of litigation over a new weight policy, the district court in ALPA explicitly stated that it was not passing on the validity of any weight standards United might adopt in the future. Because United changed its weight tables and weight policy in 1980 as part of the post- judgment settlement, we hold that plaintiffs’ claims in this case do not arise from the "same transactional nucleus of facts" underlying the claims in ALPA. Third, notice in ALPA was not sufficient under Rule 23 to preclude monetary claims in later suits, for the class in ALPA was certified and given notice as a Rule 23(b)(2) "injunction" class action. The present suit, by contrast, is a Rule 23(b)(3) "damages" class action. Rule 23(c)(2) requires a higher standard of notice for a Rule 23(b)(3) class action, under which individual notice must be provided to "all members who can be identified through reasonable effort." See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974). Further, all potential members in a Rule 23(b)(3) class must be allowed to opt out of the class. In a Rule 23(b)(2) class action, by contrast, there is no requirement for individualized notice beyond that required by due process, and class members are not allowed to opt out. We are unable to determine on the record before us whether the notice given in ALPA was distributed to all class members who would have been entitled to notice of a lla Rule 23(b)(3) class action. However, we do know that class members in ALPA could not opt out of the class. Under Eisen, class members in a Rule 23(b)(3) class may be bound to the result of that action only if the notice and opt-out requirements applicable to Rule 23(b)(3) actions are satisfied. Because ALPA did not satisfy the requirements applicable to a Rule 23(b)(3) class action, ALPA cannot preclude the Rule 23(b)(3) class action in this case. Fourth, to the degree that United seeks to rely on the post-judgment settlement in ALPA, we need only point out that the settlement is not incorporated into a judgment and therefore cannot have preclusive effect. See Hydranautics v. FilmTec Corp., 204 F.3d 880, 885 (9th Cir.2000). But even if it were a judgment, we cannot know whether it sufficiently protected the interests of the unnamed class members as that class then existed. A class action settlement can be approved and entered as a judgment only after a proceeding under Rule 23(e) at which unnamed class members are invited to express their opinions of the proposed settlement. Such a proceeding, often called a "fairness hearing,” is designed to protect the unnamed members of the class against the misjudgment (and, occasionally, the self-interest) of the named plaintiffs and class attorneys. We are simply not allowed to give preclusive effect to a post-judgment settlement that was never subjected to the scrutiny contemplated by Rule 23(e) and never entered as a judgment. Finally, we note that the terms of the settlement in ALPA appear not to protect the interests of flight attendants, such as plaintiffs in this case, who might later have been subjected to discipline for failing to comply with United's post-settlement weight restrictions. The class representatives in ALPA * In response to plaintiffs’ argument that the class members have changed over the 20 years since the ALPA decision, the district court noted that the class certified in ALPA included all future flight attendants and cited 12a failed to appeal the district court's decision that United's weight policy did not facially discriminate on the basis of sex. They elected, instead, to accept reinstatement and back pay for the members of the class who had been subjected to discriminatory application of the 1977 weight policy. Female flight attendants who were then employed and had not previously been adversely affected by the weight limits, but who might have been so affected in the future, had an interest in appealing the district court's order on the legality of United's policy. Those flight attendants had no interest in obtaining reinstatement and back pay. Similarly, women not then employed (but later hired) as flight attendants by United had no interest in back pay or reinstatement. Consequently, when the class representatives chose not to appeal the adverse ruling on the facial validity of the weight policy, they abandoned any representation of the interests of those present and potential future class members in order to protect present class members seeking back pay and reinstatement.’ See Tice v. American Airlines, 162 F.3d 966, 969 (7th Cir.1999), cert. denied, 527 U.S. 1036, 119 S.Ct. 2395, 144 L.Ed.2d 795 (1999) (refusing to give preclusive effect to NAACP v. Los Angeles Unified Sch. Dist., 750 F.2d 731, 741 (9th Cir.1984). We stated in NAACP v. Los Angeles that "[a] judgment on behalf of a class binds all persons belonging to the class and all those who subsequently come into the class." Id. But in that case the plaintiffs did not assert that they had been inadequately represented by the class representatives in the earlier action. See id. Concerns about the adequacy of representation are heightened where the first action was a class action in which the plaintiffs in the subsequent action were unnamed, absent members. See Hiser v. Franklin, 94 F.3d 1287, 1293 (9th Cir.1996). ? Named plaintiffs Leslie Frank, Pat Parnell, Carole Kirk, Joan Balla Weaver, and Donna Durkin had been employed by United for several years prior to the ALPA decision, but there is no evidence that they benefitted from the ALPA settlement, received notice of the settlement, or had an opportunity to object to the terms of the settlement. ee 13a prior class action because plaintiffs had been too young to join in earlier litigation and their interests had diverged from those of the earlier class representatives insofar as younger pilots would benefit from age discrimination against older pilots); Rutherford v. City of Cleveland, 137 F.3d 905, 910 (6th Cir.1998) (holding decision to abandon opposition to consent decree governing hiring in exchange for amendment to consent decree governing promotion demonstrated failure to adequately represent interests of applicants); Gonzales v. Cassidy, 474 F.2d 67 (Sth Cir.1973) (holding failure to appeal denial of retroactive relief constituted inadequate representation). Because the interests of the plaintiff class in this suit were not adequately represented by the plaintiffs in ALPA, we cannot give preclusive effect in this suit to the post-judgment settlement in ALPA. United contends in a two-sentence footnote in its brief to this court that even if plaintiffs’ challenge to United's weight policy is not barred by claim preclusion, it is barred by issue preclusion. United is correct in stating that "once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation." Montana v. United States, 440 US. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979). But the requirements of identity of parties, identity of the factual claim or issue, adequate notice, and adequate representation apply to both claim and issue preclusion. See Richards v. Jefferson County, Ala., 517 U.S. 793, 800-01, 116 S.Ct. 1761, 135 L.Ed.2d 76 (1996) (setting forth due process requirements for granting prior judgment preclusive effect); Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 85 L.Ed. 22 (1940) (same). The particulars of those requirements are different in claim preclusion and issue preclusion, but the underlying ideas are substantially the same. Because United 14a does not and, indeed, could not, seriously argue that issue preclusion applies on the facts of this case, we think it unnecessary to analyze the question at length. We therefore proceed to the ments of plaintiffs’ claims. IV Title VII makes it unlawful "to discriminate against any individual with respect to... compensation, terms, conditions, or privileges of employment, because of such individual's... sex....". 42 U.S.C. § 2000e-2(a)(1). Courts have recognized two bases on which plaintiffs may proceed: disparate treatment and disparate impact. See International Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Disparate treatment arises when an employer "treats some people less favorably than others because of their ... sex." Id. Disparate impact arises when an employer's practice is "facially neutral ... but ... in fact fall[s] more harshly on one group than another.” Id. Disparate treatment is permissible under Title VII only if justified as a bona fide occupational qualification ("BFOQ"). A BFOQ is a qualification that is reasonably necessary to the normal operation or essence of an employer's business. See 42 U.S.C. § 2000e-2. An employer's policy amounts to disparate treatment if it treats men and women differently on its face. For example, in UAW v. Johnson Controls, 499 U.S. 187, 111 S.Ct. 1196, 113 L.Ed.2d 158 (1991), defendant Johnson Controls barred fertile women, but not fertile men, from jobs entailing high levels of lead exposure. The Court concluded this was disparate treatment: "Johnson Controls’ policy is not neutral because it does not apply to the reproductive capacity of the company's male employees in the same way as it applies to that of the females." Id. at 199-200, 111 S.Ct. 1196. The Court has made it clear that such an "explicit gender-based 15a policy is sex discrimination under § 703(a) [of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) ] and thus may be defended only as a BFOQ." Id. at 200, 111 S.Ct. 1196. Similarly, in Healey v. Southwood Psychiatric Hosp., 78 F.3d 128 (3d Cir.1996), defendant Southwood Psychiatric Hospital explicitly treated men and women differently in scheduling its employees’ shifts. The court held that "Southwood's gender-based policy is not a pretext for discrimination--it is per se intentional discrimination." Id. at 131. "When open and explicit use of gender is employed ... the systematic discrimination is in effect 'admitted' by the employer, and the case will tum on whether such overt disparate treatment is for some reason justified under Title VII. A justification for overt discrimination may exist if the disparate treatment is ... based on a BFOQ." Id. at 132. The court in Healey held that facial discrimination was permissible as a BFOQ because staffing both males and females on all shifts was necessary to provide the therapeutic care that was the "essence" of the hospital's business. See id. at 132-33. We view plaintiffs’ case as analytically indistinguishable from Johnson Controls and Healey. The uncontroverted evidence shows that United chose weight maximums for women that generally corresponded to the medium frame category of MetLife's Height and Weight Tables. By contrast, the maximums for men generally corresponded to MetLife's large frame category. The bias against female flight attendants infected United's weight maximums for all age groups.* Because of this consistent difference in * The weight maximums that applied to female flight attendants under age 34 all fell within MetLife's range for medium-framed women. By contrast, the weight maximums that applied to males under age 34 all fell within MetLife's range for large-framed men. The weight maximums for l6a treatment of women and men, we conclude that United's weight policy between 1980 and 1994 was facially discriminatory.’ On its face, United's weight policy "applie[d] less favorably to one gender." Gerdom v. Continental Airlines, 692 F.2d 602, 608 (9th Cir.1982) (en banc). Under United's policy, men could generally weigh as much as large-framed men whether they were large-framed or not, while women could generally not weigh more than medium-framed women. As we held in Gerdom, "[w]here a claim of discriminatory treatment is based upon a policy which on its face applies less favorably to one gender ... a plaintiff need not otherwise establish the presence of discriminatory intent." Id. United defends its weight tables as _ permissible "grooming" or appearance standards. It is true that not all sex-differentiated appearance standards constitute disparate treatment that must be justified under Title VII as BFOQs. An appearance standard that imposes different but essentially equal burdens on men and women is not disparate treatment. female flight attendants between 35 and 44 straddled the medium and large frame categories for women, while the weight maximums for male flight attendants between the same ages fell exclusively in the large frame category for men. Female flight attendants between 45 and 54 were subjected to weight maximums that fell barely into the large frame category for women. These maximums never exceeded the top of the medium frame range for women by more than three pounds. Their male counterparts the same age were subjected to maximums at the upper end and beyond the upper end of MetLife’s large frame range for men. These maximums exceeded the maximum weight for medium frames for men by anywhere between 4 and 17 pounds; for men 5'11" or taller, the maximums exceeded MetLife's large frame range for men. ° Plaintiffs also make a disparate impact challenge to the weight maximums. Because we hold that plaintiffs are entitled to summary judgment on their disparate treatment claim, we do not reach the merits of their disparate impact claim. a aii Ta eI io 17a For example, in Fountain v. Safeway Stores, Inc., 555 F.2d 753 (9th Cir.1977), we held that a store may impose different hair length requirements on men and women, and may require men but not women to wear neckties. As we wrote in that case, "regulations promulgated by employers which require male employees to conform to different grooming and dress standards than female employees is not sex discrimination within the meaning of Title VII." Id. at 754. We need not decide whether a rule or regulation that compels individuals to change or modify their physical structure or composition, as opposed to simply presenting themselves in a neat or acceptable manner, qualifies as an appearance standard. Even if United's weight rules constituted an appearance standard, they would still be invalid. A sex- differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a BFOQ. Thus, an emvloyer can require all employees to wear sex-differentiated uniforms, but it cannot require only female employees to wear uniforms. See Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979). An airline can require all flight attendants to wear contacts instead of glasses, but it cannot require only its female flight attendants to do so. See Laffey v. Northwest Airlines, Inc., 366 F.Supp. 763 (D.D.C.1973); see also Nadine Taub, Keeping Women in Their Place: Stereotyping Per Se as a Form of Employment Discrimination, 21 B.C. L.Rev. 345, 387 (1980). We also need not consider whether separate weight Standards for men and women in themselves constitute discriminatory treatment under Johnson Controls. Even assuming that United may impose different weight standards on female and male flight attendants, United may not impose 18a different and more burdensome weight standards without justifying those standards as BFOQs. United is thus entitled to use facially discriminatory weight charts only if it can show that the difference in treatment between female and male flight attendants is justified as a BFOQ. See Johnson Controls, 499 U.S. at 200, 111 S.Ct. 1196; Healey, 78 F.3d at 131. The burden is on United to show that its weight policy fits in this "extremely narrow exception to the general prohibition of discrimination on the basis of sex." Dothard v. Rawlinson, 433 U.S. 321, 334, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977). To escape summary judgment, United must raise a genuine issue as to whether its discriminatory weight maximums are "reasonably necessary" to the "normal operation" of its "particular business," and that they concern job-related skills and aptitudes. Johnson Controls, 499 U.S. at 187, 111 S.Ct. 1196; 42 U.S.C. § 2000e-2(e)(1). United provided no evidence that its facially discriminatory weight standard is a BFOQ. United made no showing that having disproportionately thinner female than male flight attendants bears a relation to flight attendants’ ability to greet passengers, push carts, move luggage, and, perhaps most important, provide physical assistance in emergencies. The only evidence in the record is to the contrary. Far from being "reasonably necessary" to the "normal operation" of United's business, the evidence suggests that, if anything, United's discriminatory weight requirements may have inhibited the job performance of female flight attendants. We therefore reverse the decision of the district court and hold that because United's policy of applying medium- frame weight maximums to female flight attendants and large-frame weight maximums to male flight attendants is facially discriminatory and not justified as a 19a BFOQ, plaintiffs are entitled to summary judgment on their disparate treatment class claim." V The ADEA prohibits employers from discriminating against "any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age." 29 U.S.C. § 623(a)(1). The district court correctly concluded that a disparate treatment class claim is not available to plaintiffs because United's weight policy discriminated on the basis of sex and weight, not on the basis of age. An employer does not violate the ADEA by discriminating based on a factor that is merely empirically correlated with age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 609-11, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993); Ellis v. United Airlines, Inc., 73 F.3d 999 (10th Cir.1996) (concluding that United's weight requirement did not violate ADEA). Plaintiffs should, however, be permitted to go forward with their age discrimination class claim under a disparate impact theory." In its order of February 26, 1997, the district court noted that it had previously found, on August 16, 1995, that plaintiffs' age-based disparate impact claim presented triable issues of fact. But the district court concluded that the Supreme Court's decision in Hazen, as interpreted by the Tenth Circuit in Ellis in 1996, foreclosed a disparate impact claim in an ADEA case. We have since squarely decided © We also reverse the district court's implicit denial of summary judgment on plaintiffs’ corresponding discrimination claim under FEHA. '' United contends that plaintiffs have waived their ADEA class claims of age discrimination on appeal. We disagree. An appellant ordinarily must raise an argument in its opening brief on appeal in order to preserve it for our review. See, e.g., Officers for Justice v. Civil Serv. Comm'n, 979 F.2d 721, 726 (9th Cir.1992). Plaintiffs have satisfied this standard in sections VI.C.5.e and VI.D of their opening brief. 20a that a disparate impact claim is cognizable in an ADEA case. See Arnett v. California Pub. Employees Retirement Sys., 179 F.3d 690, 696 (9th Cir.1999) vacated and remanded on other grounds, --- U.S. ----, 120 S.Ct. 930, 145 L.Ed.2d 807 (2000). The Supreme Court vacated our decision in Amett and remanded for further consideration in light of Kimel v. Florida Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000), in which the Court held that the ADEA does not abrogate the Eleventh Amendment. The Eleventh Amendment issue is irrelevant to a case, such as this one, in which a private rather than state entity is a defendant, and the Court's vacation of our decision has no bearing on the correctness of our conclusion that a disparate impact claim is cognizable under the ADEA. We see no reason to depart from our conclusion in Armett and we again hold that a disparate impact claim is cognizable under the ADEA. See also EEOC v. Local 350, Plumbers and Pipefitters, 998 F.2d 641, 648 n. 2 (9th Cir.1992). We therefore conclude that plaintiffs should be allowed to proceed with their disparate impact class claim.” VI The district court concluded that none of the named plaintiffs presented viable individual claims of discrimination under Title VII, the ADEA, the ADA, and FEHA. In light of our holding on the class claim under Title VII, we reverse summary judgment for defendant on named plaintiffs’ individual claims of sex discrimination. Similarly, in light of our holding on the class claim under the ADEA, we reverse summary judgment on named plaintiffs’ individual claims of age discrimination. On remand, the district court should reassess their individual claims under '2 We also reverse the district court's implicit dismissal of plaintiffs’ corresponding age discrimination claim under FEHA. 2la Title VII and the ADEA and their corresponding individual claims under FEHA in light of this opinion. We affirm the district court's decision granting summary judgment for United on named plaintiffs’ individual claims under the ADA and their corresponding claims under FEHA. The district court correctly concluded that none of the named plaintiffs presented evidence to make a prima facie case that their eating disorders "substantially limited" a major life activity and were therefore disabilities within the meaning of the ADA. See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 2169, 144 L.Ed.2d 518 (1999). A major life activity is a function such as "caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2. While eating disorders can substantially limit major life activities, plaintiffs have not presented evidence that their eating disorders have that effect. With respect to the named plaintiffs’ other asserted disabilities, the district court correctly concluded that none of the named plaintiffs had exhausted their administrative remedies by filing charges with the EEOC or with California's Department of Fair Employment and Housing. Named plaintiffs did file charges claiming disability discrimination based on obesity, but obesity is not like or reasonably related to other conditions, such as cancer, from which plaintiffs allegedly suffer and on which they base their other individual charges of discrimination. Named plaintiffs have therefore not exhausted their administrative remedies with respect to these conditions. See Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1480 (9th Cir.1997). Vil 22a Because the district court should have granted summary judgment to plaintiffs on their Title VII disparate treatment class claim and should have denied United's motion for summary judgment on plaintiffs’ disparate impact ADEA class claim, we reverse the district court's decertification of the class and denial of plaintiffs’ application for an award of costs. CONCLUSION For the foregoing reasons, we REVERSE the district court's grant of summary judgment to defendant on plaintiffs’ disparate treatment class claim under Title VII, and we REVERSE its denial of plaintiffs’ motion for summary judgment on that clam. We AFFIRM the district court's grant of summary judgment on plaintiffs’ disparate treatment class claim under the ADEA, and we REVERSE its grant of summary judgment to defendant on plaintiffs’ disparate impact class claim under the ADEA. We similarly REVERSE and AFFIRM the district court's rulings on plaintiffs’ class clams under FEHA that correspond to their class claims under Title VII and the ADEA. We REVERSE the district court's grant of summary judgment to defendant on plaintiffs’ individual claims under Title VII, the ADEA, and corresponding claims under FEHA. We AFFIRM the district court's grant of summary judgment to defendant on plaintiffs’ individual claims under the ADA _ and corresponding claims under FEHA. We REVERSE the district court's class decertification and denial of plaintiffs' application for award of costs in the district court. REVERSED in part, AFFIRMED in part, and REMANDED for further proceedings consistent with this opinion. Each party shall bear its own costs on appeal. O'SCANNLAIN, Circuit Judge, concurring in part and dissenting in part: 23a I fully concur in the court's affirmance of the district court's summary judgment for United on the plaintiffs’ "disparate treatment" claims under the Age Discrimination in Employment Act and individual claims under the Americans with Disabilities Act. I must respectfully dissent, however, from the reversal of the district court's grant of summary judgment for United on the plaintiffs’ remaining claims under Title VII and the Age Discrimination in Employment Act.’ I Although the majority deploys a raft of arguments in the alternative to support its holding that the plaintiffs’ facial attack on United's weight policy is not precluded by the judgment entered in Air Line Pilots Association, International v. United Air Lines, Inc. ("ALPA "), 26 F.E.P. Cases 607, 1979 WL 34 (E.D.N.Y.1979), none of those arguments is compelling--indeed, some of them conflict fundamentally with preclusion doctrine, in my view.” A The majority's first two arguments against granting the ALPA judgment preclusive effect in this litigation are that the relevant claim under Title VII of the Civil Rights Act of ' | shall not separately address the plaintiffs’ claims under the California Fair Employment and Housing Act ("FEHA”), Cal. Gov't Code §§ 12900-12996, but would affirm the district court's judgment thereon for the reasons that follow * The majority suggests that the issue is whether the “post- judgment settlement," as opposed to the actual district court judgment in ALPA, precludes these claims. See supra at 852 (rejecting United's argument "to the degree that [it] seeks to rely on the post-judgment settlement in ALPA " because the settlement was not incorporated into the district court’s judgment and did not protect the interests of absent class members). The post-judgment settlement is not relevant to the preclusion issue here. It is undisputed that the district court tendered a final judgment in ALPA, and it is the preclusive effect of that judgment that is before us. 24a 1964 ("Title VII"), 42 U.S.C. § 2000e, did not "arise” until after 1979 (i.e., after that judgment was entered), supra at 850, and that "the claim is based on a different weight policy from that challenged in ALPA,” supra at 851. As an initial matter, these two contentions seem to me to be part and parcel of the same argument. The claim did not "arise" before 1979 either because the ALPA plaintiffs did not think (or bother) to make it before then or because the distinct factual circumstances--United's implementation of its new weight policy--did not obtain before then. If the majority's reference to the "arising" of the plaintiffs’ claim is captured by the second possible reading, the majority's first two arguments are logically indistinguishable. It is plain that the first possibility cannot militate against giving the ALPA judgment preclusive_ effect, notwithstanding the decontextualized dictum from International Technoiogies Consultants, Inc. v. Pilkington, PLC, 137 F.3d 1382, 1388 (9th Cir.1998), that the majority quotes for the overstated proposition that prior favorable judgments do not "preclude claims based on events occurring [there]after.” See supra at 851 (" 'By winning the first action, the defendants "did not acquire immunity in perpetuity from the antitrust laws." '"). As the very purpose of preclusion doctrine "is to protect a defendant from being worn down by a plaintiff who sues him over and over again for the same allegedly wrongful conduct," Marrese v. American Acad. of Orthopedic Surgeons, 726 F.2d 1150, 1152 (7th Cir.1984), rev'd on other grounds, 470 U.S. 373, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985), someone who has once successfully defended his allegedly obnoxious behavior in court is indeed presumptively immune from suit thereon (by the same parties) though he should persist in his offensive behavior thereafter. Cf. Go-Video, Inc. v. Matsushita Elec. Indus. Co. (In re Dual-Deck Video Cassette Recorder Antitrust Litig.), 25a 11 F.3d 1460, 1464 (9th Cir.1993) (giving prior judgment preclusive effect because the subsequent claim appeared to rely on the misplaced theory "that every day is a new day, so doing the same thing today as yesterday is distinct from what was done yesterday."). It is conceivable, of course, that United's new weight policy might avoid the preclusive effect of the ALPA judgment even though the mere passage of time could not. "Material operative facts occurring after the decision of an action with respect to the same subject matter may in themselves ... comprise a transaction which may be made the basis of a second action not precluded by the first.” Restatement 2d of Judgments § 24 cmt. a; see Costantini (Cite as: 216 F.3d 845, *859 ) v. Trans World Airlines, 681 F.2d 1199, 1202 (9th Cir.1982) (noting that "whether the two Suits arise out of the same transactional nucleus of facts" is "the most important" criterion in determining whether the judgment in an earlier lawsuit precludes litigation of a second). The majority summarily concludes that United's new weight policy is in fact a distinct transaction because it was "part of the post-judgment settlement" reached after ALPA. Like the district court, I think it plain that an across-the-board increase in maximum permissible weights and relaxed standards for older flight attendants does not amount to a "[mJaterial operative fact[ ]" with respect to an allegation that those maxima are sexually discriminatory. In order for uniform, absolute increases--which is essentially all that is "new" on the face of United's post-1979 weight policy--to be relevant to a discrimination claim, the margin of the increase itself must be more or less accommodating to one gender than another. Such a claim has not been made in the course of this litigation and is not credible on its face. The lockstep increases in maximum permissible weights, in short, are no more material to the plaintiffs’ cause of action 26a than the possibility that the new policy was printed and circulated on a different color of paper. The fact that the plaintiffs’ Title VII claims in this case arise from United's new weight policy rather than its predecessor is not material to a claim of sex discrimination because the new policy does not differ from the old one in any way that is itself material to the plaintiffs' claim. Thus the fact that the policy was changed after the ALPA judgment cannot alone defeat that judgment's preclusive effect. Cf. EEOC v. American Airlines, Inc., 48 F.3d 164, 169 (Sth Cir.1995) ("It is not enough to avoid the preclusive effect of the prior determination ... to show merely a change in facts: a change must have occurred in facts that ... were of controlling significance.”). To hold otherwise, as the court does today, cabins preclusion doctrine so narrowly as to render it useless, for a plaintiff hoping to evade it might do so simply by emphasizing irrelevant distinctions in his pleadings.’ > The plaintiffs take some pains to argue that this lawsuit cannot be barred by "claim preclusion,” as the district court held, as distinct from "issue preclusion.” Even if that were so, "we may affirm the district court's decision based on any reason finding support in the record,” Welch v. Fritz, 909 F.2d 1330, 1330 (9th Cir.1990), and it is apparent that "issue preclusion” would suffice to preclude the present lawsuit. This is so notwithstanding the plaintiffs’ attempt to distinguish the judgment in ALPA as being limited to a disparate impact theory rather than the disparate treatment theory that is at issue in this case. It is an exercise in fruitless abstractions to hypothesize that one could recover under a disparate treatment theory relying on evidence of a pattern or practice after failing to recover under a disparate impact theory. Cf. Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). The distinguishing features of the factual issues that typically dominate in disparate impact cases do not imply that the ultimate legal issue is different than in cases where disparate treatment analysis is used. Nor do we think it is appropriate to hold a defendant liable for unintentional discrimination on the basis of less evidence than 27a B The majority's third argument against granting preclusive effect to the judgment entered in ALPA is that the procedural protections for absent class members in that litigation were insufficient to bar the individual claims of those absent class members for monetary relief. In particular, the majority notes that the ALPA court certified the plaintiff class in that case under Fed.R.Civ.P. 23(b)(2), which applies to actions predominantly for declaratory and injunctive relief and does not require the same level of procedural protections for ab [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1490%3A1. Public record. Not legal advice.