# Petition for Writ of Certiorari — Sodexho Marriott Services, Inc. v. McReynolds

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 818

## Text

.orame Court, U.S.

(1) FILED
QO21731 MAY 23 2B

No. 02-

IN ‘THE

Supreme Court of the United States

SODEXHO MARRIOT SERVICES, INC.,
Petitioner,
v,

CYNTHIA CARTER McREYNOLDS,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES CourRT OF APPEALS FOR THE
DisTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

GeEorGE W. JOHNSTON

Topp J. Horn*

MITCHELL Y. Mirviss

VENABLE, BAETJER AND Howarp, LLP
1800 Mercantile Bank & Trust Bldg.
Two Hopkins Plaza
Baltimore, Maryland 21201
(410) 244-7400

Attorneys for Petitioner
* Counsel of Record

180803 ce

COUNSEL PRESS
(800) 274-3321 * (800) 359-6859

1

QUESTION PRESENTED

A decision to certify a putative class often constivutes
the single most significant event in deciding the outcome of
a class action lawsuit, as commentators and many in Congress
have recognized. Fed. R. Civ. P. 23(f) was promulgated in
1998 so that significant class certification decisions could
be appealed and reviewed before trial to ensure uniformity
of decisions and prevent significant errors.

In this massive employment discrimination case, the
district court certified a nationwide class of managerial and
executive level employees despite, as the court admitted, the
lack of a direct precedent and without providing the defendant
an opportunity to rebut plaintiffs’ statistical evidence and
anecdotal claims. The D.C. Circuit denied defendant’s
petition for interlocutory appeal, applying a standard that
limits Rule 23(f) appeals to rare cases.

This petition therefore raises a critical question regarding
class action procedure that has sharply divided the circuits:

Do the circuit courts of appeal have discretion to limit
their grant of interlocutory appeals under Fed. R. Civ.
P. 23(f) to those rare class certification decisions that
present (i) manifest error by the district court, (11) an
unsettled fundamental issue of law that is likely to evade
end-of-the-case review, or (iii) a “death knell” impact
terminating the case?

:
Hy

7

PARTIES AND RULE 29.6 CORPORATE
DISCLOSURE STATEMENT

Petitioner Sodexho Marriott Services, Inc., now
Sodexho, Inc. (“Sodexho”), is the defendant in the district
court proceedings below. Respondents Cynthia Carter
McReynolds, et al. are current and former management-level
employees of Sodexho and its two predecessor corporate
entities, Marriott Management Services (“MMS”), a former
division of Marriott International, Inc., and Sodexho U.S.A.
(“SUSA”), a former division of Alliance Sodexho, S.A. Ten ‘es
named plaintiffs brought this action: Ms. McReynolds, Lisa
Mitchell, Robert Morris, Jr., Chip Moss, Marilyn McNish,
Ezzie L. Henry, Dwain P. Richardson, Tarsha Ann Hardy,
Gail L. Darlington, and Samuel Cokes. Their motion for class

- certification sought certification of a class of all African
American salaried employees of Sodexho, MMS, and SUSA
at any time from March 9, 1998 to December 7, 2001 who
have held or sought managerial level positions.

Pursuant to Rule 29.6, Sodexho certifies that it is a
wholly owned subsidiary of Sodexho Alliance, S.A., a
publicly held company. No other publicly held company holds
10% or more of its siock. Sodexho may have indemnity
coverage for at least some of the claims and potential damages
sought by plaintiffs through an EPLI insurance policy with
the Federal Insurance Company, a subsidiary of The Chubb
Corporation, which is publicly traded. No other publicly
traded company is financially interested in the outcome of
the proceeding.

lil

TABLE OF CONTENTS

Page
Question Presented ....-.-------srrr crt i
Parties and Rule 29.6 Corporate Disclosure
Statement .....--05sessereee* Pe otek ie at ii
Tabla OF COMLCTES 0... eccrine steers i
Table of Cited Authorities .....------ssesrrrees iV
Table of Appendices .....-----+ssssrrrrrtet X1V
Opinions Below ......-----sssssrrerr |
Statement of Jurisdiction .....---+-sssrsrcrtte |
See ee ee ea l
Statement of the Case ......-- eres 2
Reasons for Granting the Petition .......---++>: 1]
A. The Conflict Among The C ircuits Regarding
The Standards For Granting Review Under
ae reer: eee eee 12
B. Sodexho’s Petition Satisfied The Third,
Fourth, Seventh, And Eleventh Circuits’
Standards For Rule 23(f) eee 19

ek haga sade e ens exe eee ees 28

iv

TABLE OF CITED AUTHORITIES

Page
Cases

Abram y. United Parcel Serv. of Am., Inc.,
200 F.R.D. 424 (E.D. Wis. 2001) ............. 24

Abrams v. Kelsey-Seybold Med. Group, Inc.,
178 RR. 116 6D. Ten. 1997) onc ccciccccss 25

Beck v. Boeing Co.,
203 F.R.D. 459 (W.D. Wa. 2001) ............. 24

Beck v. Boeing Co.,
320 F.3d 1021 (9th Cir. 2003),
aff'd in part, rev'd in part on other grds.,
60 Fed. Appx. 38, 2003 WL 683797
COUR GA FO ay BD kn oven es cee vanenes 13,14

Berger v. Compaq Computer Corp.,
EO? On GIR Eee GE PED «vos oc denesives 14

Bertuili v. Indep. Ass'n of Cont’l Pilots,
242 F.3G 290 (Sth Cir. ZOOL)... cece cee eens 15

Betts v. Sunstrand Corp.,
No. 97 C 50188, 1999 WL 436579 (N.D. IIl.
SE 5 -em ad ooo a he eA ee 25

Blair v. Equifax Check Servs., Inc.,
181 F.3d 832 (7th Cir. 1999) ......... 15, 17, 18, 19

Bolin v. Sears, Roebuck & Co.,
231 F.3d 970 (Sth Cir. 2000) ...... ge eee 15

jae Ce eae cooncamaniall

Cited Authorities
Page
Caridad v. Metro-North Commuter R.R. Co.,
191 F.3d 283 (2d Cir. 1999), cert. denied,
529 U.S. 1107 (2000) ....---s see reercrere passim
Casas v. American Airlines, Inc.,
304 F.3d 517 (Sth Cir. 2002) ...---- eee eee 14
Cason v. Nissan Motor Accept. Corp.,
28 Fed. Appx. 392, 2002 WL 22351 (6th Cir.
ae a ee ee 14
Castano v. Am. Tobacco Co.,
84 F.3d 734 (Sth Cir. 1996) ..---- ee eee: 21, 26
City of Hialeah, Fla. v. Rojas,
311 F.3d 1096 (11th Cir. 2002) ..------ +e eee 14
Coleman v. General Motors Accept. Corp.,
296 F.3d 443 (6th Cir. 2002) ...---- errr rere 14
Cooper v. Southern Co.,
205 E.R.D. 596 (N.D. Ga. 2001) ..---- ++ eee: 24
Culpepper v. Irwin Mortg. Corp.,
753 F.3d 1324 (11th Cir.), reh’g denied, 273 F.3d
: 1118 (11th Cir. 2001), cert. denied, 534U.S.1118
| CODD oo 5 i ENTREE 14
: Donaldson v. Microsoft Corp.,
205 F.R.D. 558 (W.D. Wa. 2001) .--- +--+ - eee? 24

SS ee

vi

Cited Authorities

Page

Eisen v. Carlisle & Jacquelin,

GET US. TB Tr eo ve cc tt hones aie 6, 21
Franze v. Equitable Assurance,

296 F.356 1250 CLI Ch, BOGE 4 ve caewene ees 14
General Telephone Co. v. Falcon,

GST Wey SOF Cheek va kA ee cheeses 1, 8, 10, 22
Glover v. Standard Fed. Bank, 7

203 F.36 953 COUN Ce, FE) vn vc cvavccensace 14
Hawkins v. Comparet-Cassani,

yore se Bro 2, Tee |) eee error re 14
Heimmermann y. First Union Mortg. Corp.,

305 FBG 1257 (11 Cir, 2OUE) 5... ces csesens 14
In re Allstate Ins. Co., No. 02-8010, 2002

WL 31545753 (D.C. Cir. Nov. 14, 2002) ...... 13
In re Bioproducts, Inc.,

No. 02-8006, 2002 WL 1997993 (D.C. Cir. Aug.

EP) POUR 46a Shes eu Neha eee eee 13
In re Bridgestone/Firestone, Inc.,

oun ©.20 COTS CTR GC, GUE) nov i vavacceeves 14

In re Delta Air Lines,
310 F.3d 953 (6th Cir. 2002) ................ 19

sf ahd DR edhe CR PADI LAE IODA LYE te 8D AAA

‘

vil

Cited Authorities
Page

In re LifeUSA Holding, Inc.,

242 F.3d 136 (3d Cir. 2001) ....- ckke ohne s 14
In re Linerboard Antitrust Litig.,

305 F.3d 145 (3d Cir. 2002) ...---- seer e rere 14
In re Lorazepam & Clorazepate Antitrust Litig.,

289 F.3d 98 (D.C. Cir. 2002) ....---e errr ees 12, 13
In re Rand Corp.,

No. 02-8007, 2002 WL 1461810 (D.C. Cir. July

“errr e eects ee i
In re Sumitomo Copper Litig.,

262 F.3d 134 (2d Cir. 2001) ...--- ee errr eee 15
In re Veneman,

309 F.3d 789 (D.C. Cir. 2002) ...----- +++: 13
In re Visa Check/MasterMoney Antitrust Litig.,

280 F.3d 124 (2d Cir. 2001) ...---- eer eres 14, 15
Isaacs v. Sprint Corp.,

261 F.3d 679 (7th Cir. 2001) ...---- reer eee: 14, 20
Jefferson v. Ingersoll Int'l Inc.,

195 F.3d 894 (7th Cir. 1999) ..--- sere eres 15
Johnston v. HBO Film Mgmt., Inc.,

265 F.3d 178 (3d Cir. 2001) ..-- eee rere rere 14

Vill

Cited Authorities

Page

Kirkland v. Midland Mortg. Co.,

BGS F.36 F277 CLI CH BUGE) ok cece sevens 14
Lienhart v. Dryvit Sys., Inc.,

Bae UDO USO CHU, SE) vc recs cececensas 14, 18
Lott v. Westinghouse Savannah Co. River Corp.,

200 FDL. 559 SL. FID) cc cccccccsesses 24-25
McKowan Lowe & Co., Ltd. v. Jasmine, Ltd.,

yoo ge Rk he es re ere 14
McReynolds v. Sodexho Marriott Servs., Inc.,

a06 FBT. 428 ODL. DOOR) nc cvcccesvss passim
Mejdrech v. Met-Coil Sys. Corp.,

319 F.3d 910:(7th Civ. 2003) ow. cc nce cecesees 13
Miller v. Hygrade Food Prods. Corp.,

198 F.R.D. 638 (E.D. Pa. 2001) .............. 24
Monahan yv. City of Wilmington,

49 Fed. Appx. 383, 2002 WL 31341336 (3rd Cir.

PE 5 orkid aoe cues Ken ci eek ated een 14
Murray v. Auslander,

244 F.3d 807 (11th Cir. 2001) ............... 14

Newton vy. Merrill Lynch, Pierce,
Fenner & Smith, Inc.,
259 F.3d 154 (3d Cir. 2001) .......... 14, 17, 19, 21

1x

Cited Authorities
Page

O’Sullivan v. Countrywide Home Loans, Inc.,

319 F.3d 732 (7th Cir. 2003) ...----e eee eeees 13
Patterson v. Mobil Oil Corp.,

241 F.3d 417 (Sth Cir. 2001) ...-.----- ee eee 15
Piazza v. Ebsco Indus., Inc.,

273 F.3d 1341 (11th Cir. 2001) ....-----+++5- 14
Pickett v. lowa Beef Processors,

209 F.3d 1276 (11th Cir. 2000) ...-------++: 15
Prado-Steiman ex rel. Prado v. Bush,

221 F.3d 1266 (11th Cir. 2000) ......----- 15, 18, 19
Reap v. Cont’l Cas. Co.,

199 F.R.D. 536 (D.N.J. 2001) «2... eee rere 24
Reid v. Lockheed Martin Aeronautics Co.,

205 E.R.D. 655 (N.D. Ga. 2001) ..------ ++ ee 24
Rhodes y. Cracker Barrel Old Country Store, Inc.,

713 E.R.D. 619, 2003 WL 933152 (N.D. Ga. Mar.

7, 2003) 2... ceccccccccccescres ae uenent 22
Rivera vy. Wyeth-Ayerst Labs.,

283 F.3d 315 (Sth Cir. 2002) ...----- ++ seers 14

Robinson v. Metro-North Commuter R.R. Co.,
267 F.3d 147 (2d Cir. 2001) ....---- eee e eres 26

Cited Authorities
Page

Rutstein v. Avis Rent-A-Car Sys., Inc.,

210 F.38 E226 C21 Coe. FOGD) nn we ccc ccs sees 15
Sandwich Chef of Tex., Inc. v.

Reliance Nat. Indem. Ins. Co.,

Fae Pe Be COME GE, GOGED oe i cc cceeescases 13-14
Serafty v. Inter. Automated Sys., Inc.,

180 F.R.D. 418 (D. Utah 1998) .............. 22
Smilow v. S.W. Bell Mob. Sys., Inc.,

peop & Beets te ol. rn 13
Smilow v. S.W. Bell Mob. Sys., Inc.,

No. 01-8001 (1st Cir. July 12, 2001) .......... 14
Smith v. Texaco, Inc.,

FBS Tyg Ct ee 14
Smith v. Univ. of Wash. Law School,

233 F.36 1166 (9 Cir. 2000)... nc cece cccesss 15
Stastny v. S. Bell Tel. & Tel. Co.,

b&b oe ee eee err ai, 23
Szabo v. Bridgeport Machs., Inc.,

yg ee ty me | rrr passim

Turner v. Beneficial Corp.,
242 F.3d 1023 (11th Cir.) (en banc), cert. denied,
rr ree rere 15

xi

Cited Authorities
Page
Wagner v. Taylor,
oe by, fi keg 7) ere rere 23
Waste Mgmt. Hldgs., Inc. v. Mowbray,
208 F.3d 288 (1st Cir. 2000) ................. 15, 18
West v. Prudential Secs., Inc.,
BOS Fie BSS CPE, BOGE) civ civeresevees 14

West Pub. Co. v. Carter,
No. 98-90015-D, 1999 WL 996377 (11th Cir. June
rr re ee re reer Tr ree 15

Wright v. Circuit City Stores, Inc.,
201 F.R.D. 526 (N.D. Ala. 2001) ............. 24

Zachery v. Texaco Explor. & Prod., Inc.,
185 F.R.D. 230 (W.D. Tex. 1999) ............ 25

Zapata v. IBP, Inc.,
167 F.R.D. 147 (D. Kan. 1996) .............. 25

Zinser v. Accufix Res. Inst., Inc.,
253 F.3d 1180 (9th Cir.), amended by 273 F.3d
Se Es SE niyo bee deeckeeks eaye es 14

xil

Cited Authorities

Page
Statutes and Rules
TE Ra Oe |) eer Perr re rer re 1
rt So 2 Pere errre rere eee Te 12
PLR Toe oe | rrr rT re ry |
ye Ee | eT ee ee ee: 1]
p gk 8 ol ee PP eee rere ret l
LIS oe P| eer eer rey 1
42 U.S.C. § BUENO 66004055 443s R see 1
Pe, Bi GO. Ee 6 vv suvkccuahacweeouenen 21

ee Se BEE sos bab acvadeeeeaeee passim

xii

Cited Authorities

Other

Robert G. Bone and David S. Evans, Class
Certification and the Substantive Merits, 51 Duke
EE SE

Civil Rules Advisory Comm., Minutes, April 28-29,
1994, 1994 WL 809916 (J.C.U.S. 1994) .......

Civil Rules Advisory Comm., Minutes, February
16-17, 1995, 1995 WL 870909 (J.C.U.S. 1995)

ae nn nt nn ee ee et ee ee ee eee ees eeveeeeeee

Civil Rules Advisory Comm., Minutes, November
9-10, 1995, hearing, 1995 WL 870908 (J.C.U.S.

EE SSIES Te

Civil Rules Advisory Comm., Minutes, May 1-2,
1997, 1997 WL 1056241 (J.C.U.S. 1997) ......

Page

22

16

16

11

17, 27

xiv

TABLE OFAPPENDICES
Page

Appendix A — Order Of The United States Court
Of Appeals For The District Of Columbia Circuit
Denying Petition For Leave To Appeal Dated And
ge. ere la

Appendix B — Memorandum Opinion And Order
Of The United States District Court For The
District Of Columbia Dated And Filed June 25,
PE Va eS aE ee ee aes 3a

1

Sodexho respectfully petitions for a writ of certiorari to
review a decision by the United States Court of Appeals for
the D.C. Circuit denying Sodexho’s Fed. R. Civ. P. 23(f)
petition to appeal an order of the United States District Court
for the District of Columbia certifying a class for liability
purposes. ~

OPINIONS BELOW

The ruling of the Court of Appeals denying Sodexho’s
Rule 23(f) petition is unreported and is reprinted at Appendix
A (App. la-2a). The memorandum opinion of the district
court granting plaintiffs’ motion for class certification is
reported at 208 F.R.D. 428 (D.D.C. 2002) and is reprinted at
Appendix B (App. 3a-52a). The order of the district court
certifying the class is unreported and is reprinted at Appendix
B (App. 53a-54a).

STATEMENT OF JURISDICTION

The Court of Appeals denied Sodexho’s Rule 23(f) petition
on February 25, 2003. This Court has jurisdiction under
28 U.S.C. § 1254(1). Plaintiffs asserted original jurisdiction
in the district court pursuant to 42 U.S.C. § 2000e-5(f) and
28 U.S.C. §§ 1331, 1343, 2201, and 2202.

RULE INVOLVED

. Rule 23 of the Federal Rules of Civil Procedure is printed
at Appendix C (App. 55a-59a).

2

STATEMENT OF THE CASE

In General Telephone Co. v. Falcon, 457 U.S. 147, 161
(1982), this Court held that district courts must conduct a
“rigorous” analysis of claims for class certification under
Rule 23. In applying Falcon in this case, the district court
did not allow Sodexho to challenge or rebut plaintiffs’
evidence, reflecting one side of a wide gulf among the lower
courts as to whether, and to what extent, Falcon requires
deferential judicial review of class allegations. Pursuant to
Rule 23(f), Sodexho petitioned the D.C. Circuit to consider
that and other important and unsettled issues of law
concerning the use of class actions in employment
discrimination cases. The D.C. Circuit declined to hear the
appeal, applying a standard under which that court and the
Second Circuit “rarely” grant Rule 23(f) appeals.

The case involves the certification of a nationwide class
of 2,600 current and former African American managerial
employees — including top-level management — in an
employment discrimination action against the largest food
and facilities management corporation in the United States.
Ten named plaintiffs claim that decentralized and subjective
promotion practices at more than 5,000 job sites in 47 states
discriminate against African American managers. This case
apparently is one of the largest employment discrimination
class actions regarding promotions of managerial-level
employees ever brought against a private employer.

Sodexho was formed on March 28, 1998 through a
merger of MMS, a division of Marriott International, Inc.,
and SUSA, a division of Sodexho Alliance, S.A., into
Sodexho Marriott Services, Inc., a publicly-traded company
listed on the New York Stock Exchange. Due to this merger’s

3

size and complexity, the MMS and SUSA sides of Sodexho
did not integrate payroll and accounting systems, salary
grades and personnel policies until early 2000.

Sodexho is a massive company with six autonomous
divisions, each itself the size of a significant corporation.
As of November 2001, it employed over 110,000 individuals.
App. 4a, 208 F.R.D. at 431. The company is largely
decentralized. Its six distinct divisions function like wholly-
owned subsidiaries, each with its own unique culture and
identity. Each division keeps its own accounting records,
issues its own internal financial reports, maintains its own
human resources department, and, except at the highest levels
of executive management, makes its own independent
promotion decisions. Within these six divisions, there is a
total of approximately 155 separate geographic regions
dispersed nationwide that have significant autonomy in
personnel decisions, including the selection of mid-level

" managers. The regions service 5,000 local accounts, spread
Over an even greater number of sites.

The scope of the proposed class action is therefore
staggering. Plaintiffs challenge promotion decisions made
by literally thousands of decision-makers (there were 5,436
local General Managers and 486 regional District Managers
during the class limitations period) unconnected by any
allegedly discriminatory policy or common purpose other
than their substantial autonomy in decision-making and their
alleged use of subjective criteria.

The ten named plaintiffs brought this action on March
9, 2001, claiming that Sodexho’s promotion policies violated
Title VII and related civil rights statutes under disparate
impact and treatment theories. They complained that they

4

are segregated into certain units, denied promotion opportunities
to higher-level management positions, underrepresented at
higher pay band levels, harassed, and discriminated against in
training, discipline, compensation, termination, and performance
reviews. Their complaint sought equitable remedies, back pay,
front pay, compensatory damages, and punitive damages for
the class, which, given plaintiffs’ avowed intention to seek the
maximum $300,000 compensatory and punitive damages award
permitted by Title VII, would total close to $/ billion in damages
plus back and front pay.'

After a period of class-related discovery, plaintiffs moved
for class certification in December 2001. Their motion rested
upon the named plaintiffs’ limited anecdotal accounts of alleged
instances of discrimination, corroborating evidence by several
putative class members and a single white supervisor, an
industrial expert’s critique of Sodexho’s promotion practices,
and a statistical analysis by another expert, Dr. Bernard Siskin.
Based upon a statistical analysis of 10,000 promotion decisions
concerning Sodexho’s managerial positions during a five-
year span (1995-2001) rather than the three-year limitations
period (March 1998-2001), Dr. Siskin found a shortfall of
approximately 250 promotions for African Americans.
He ignored numerous factors that could account for promotion
decisions for managerial-level employees, e.g., prior experience,
education, or part-time status. The report also failed to assess
whether the shortfall was national in scope or was limited to
particular divisions, regions, or local operating units.

1. At deposition, certain named plaintiffs reaffirmed their intent
to pursue maximum damages, but, in the proceedings below, plaintiffs
tried to distance themselves from that testimony. They offered no
evidence that their claims were lower, however, nor did they provide
an estimate of their actual demand.

ee ee

5

In response, Sodexho proffered extensive evidence of
its aggressive pursuit of affirmative action and improved
internal promotion policies since the merger. Its Senior Vice
President of Human Resources is African American, as was
his predecessor. Based in part on his initiatives, which
plaintiffs castigate as discriminatory, African American
representation in the company stands at 12.2%, well in excess
of labor force availability, and has improved since the merger.
Sodexho’s employment practices have been reviewed
numerous times by the U.S. Department of Labor’s Office
of Federal Contract Compliance Programs (“OFCCP”) and
have repeatedly received a clean bill of health. The OFCCP
recently conducted a comprehensive review of Sodexho’s
headquarters division, assessing many of the same
promotional results attacked by plaintiffs, and found no
evidence of discrimination.

Sodexho also proffered expert evidence from Dr. Joan
Haworth, who serves as the district court's neutral expert in
massive Amtrak class action litigation pending in the same
court. She demonstrated that, even under Dr. Siskin’s flawed
methodology, his own back-up data (which he conspicuously
failed to analyze in his report) found no statistically
significant adverse promotion results in four of Sodexho’s
six divisions. Indeed, only 9 of Sodexho’s approximately
155 regions — a mere 6% — had statistically significant
adverse results. In other words, plaintiffs’ own evidence
demonstrated that any alleged problems were localized.

In addition to pointing out the exculpatory impact of
Dr. Siskin’s unreported data, Dr. Haworth applied a much
more accurate regression analysis. Unlike what Dr. Siskin
indicated in his report, Dr. Haworth accounted for division,
geography, and other factors. That more refined analysis

6

showed that only 2 to 3 of those approximately 155 regions
had statistically significant negative results for African
Americans.’

Dr. Haworth also demonstrated, and plaintiffs did not
dispute, that the representation of African American class
members in most divisions exceeded their labor market
availability. Indeed, at high-level pay bands, where
discrimination supposedly was the most rife, African
American representation at all of Sodexho’s divisions was
consistent with availability.

Finally, Dr. Haworth assessed whether use of Sodexho’s
systems for posting job vacancies (a focus of plaintiffs’ case)
had discriminatory impact, and she found none.

None of this objective evidence was considered by the
district court, which cited decisions emanating from Eisen v.
Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), as requiring
it to accept as true all facts alleged by plaintiffs and to ignore
Sodexho’s evidence to the contrary. See App. 4a-5a, 208
F.R.D. at 431 (stating that “the Court will assume the facts
as set forth by plaintiffs”). That unquestioning acceptance
of plaintiffs’ facts led the district court to critical errors.

For example, the court treated Sodexho as if it were a
monolithic, static entity notwithstanding decentralization and

2. None of the named plaintiffs worked in regions that either
expert had found to have statistically significant adverse results. Many
worked in a region with significantly favorable promotion results:
29% of the promotions i1 that region went to African Americans.
Ironically — and tellingly — that is the same region in which most of
the anecdotal instances of discrimination cited by plaintiffs
supposedly occurred.

cee ~ he eae

7

the merger of two unrelated corporations at the outset of the
limitations period. It concluded that Sodexho’s system for
posting vacancies and making promotion decisions is the
same as that MMS used in 1994, even though that system
was replaced in 2000 (and was never used by SUSA).?
And it ignored clear evidence of intra-class conflicts arising
from the fact that the named plaintiffs and other class
members are themselves members of the very management
structure that they allege has discriminated against them
— a clear ground for rejecting the class under settled D.C.
Circuit precedent.*

The district court’s treatment of the statistical evidence
was equally one-sided. Applying Second Circuit precedent,

3. Three years ago, well within the class limitations period,
Sodexho closed its system for posting job vacancies that it had
inherited from Marriott in favor of a new “Career Center” posting
system that imposes mandatory written procedures, including written
job descriptions with objective criteria for selection (such as
experience and education), review of all job postings by human
resources personnel, and disciplinary action for non-compliance.
The district court never considered the newer system. See App. 8a-
9a, 33a & n.18, 208 F.R.D. at 432-33, 441 & n.18.

4. Even though named plaintiffs testified to specific and discrete
adverse decisions made by other class members, including denials
of promotions, the court summarily dismissed these conflicts as
abstract and unproven. See App. 47a-48a, 208 F.R.D. at 447. Their
testimony was not, however, ambiguous or confusing. For instance,
named plaintiffs McReynolds and Moss each passed over named
plaintiff McNish for promotions in decisions that McNish alleges
are discriminatory. Named plaintiffs Morris and McNish each alleged
instances in which putative class members denied them promotions
in favor of white individuals. Plaintiff Howell alleges that an African
American supervising manager gave a discriminatory performance
evaluation and wrongfully eliminated her job.

8

the court held that it could not consider Sodexho’s statistical
evidence or Dr. Haworth’s critique of Dr. Siskin’s analysis,
as that would constitute a battle of experts inappropriate for
Rule 23 analysis. Instead, the only consideration was whether
plaintiffs’ statistical evidence satisfied the minimum
requirements for admissibility. See App. 38a, 208 F.R.D. at
443 (refusing to pass on the merits of plaintiffs’ statistical
evidence and instead considering only whether that evidence
was “‘so incomplete as to be inadmissible as irrelevant’”)
(quoting Caridad v. Metro-North Commuter R.R. Co., 191
F.3d 283, 292 (2d Cir. 1999), cert. denied, 529 U.S. 1107
(2000)). Because Dr. Siskin’s report satisfied that minimal
threshold, the court never addressed the fact that even his
data and methodology showed that any statistically significant
instances of discrimination were narrowly concentrated in
tiny pockets of discrete geographical regions and divisions.
In essence, the court permitted Sodexho to mount a bare-
bones Daubert-type challenge to Dr. Siskin’s opinion, but
nothing more, making certification a foregone conclusion.

Not surprisingly, under this liberal standard, the court
found plaintiffs’ proffer sufficient to meet the commonality
and typicality tests of Rule 23(a) and certified a class for
liability purposes only.° Instead of conducting a rigorous
analysis as required by-Falcon, the court certified a
nationwide class based upon the shakiest of foundations:
(1) limited anecdotal evidence largely emanating from one
of the 155 regions; (2) Dr. Siskin’s finding of a “shortfall”

5. Rather than address the overwhelming problems that it would
face in assessing damages and determining back pay for such an
enormous class, the court deferred any consideration of whether the
class could satisfy the requirements of Rule 23(b)(2) or (b)(3) as to
remedy. See App. 50a-52a, 208 F.R.D. at 448-49. Thus, the court never
determined whether plaintiffs’ claims as a whole satisfy Rule 23(b).

9

of some 250 promotions for African Americans out of 10,000
promotion decisions made in 1995-2001 (far beyond the
3-year limitations period) without controlling for geography,
experience, education, or other critical factors; and
(3) Sodexho’s use of allegedly subjective criteria and
decentralized processes for upper-level promotions.

It is no exaggeration to say that the district court’s
decision holds dire implications for challenges to the
promotion record of any large national corporation.
A nationwide class of 2,600 managerial employees was
certified because plaintiffs’ expert found that African
American managers are underrepresented at higher pay scales
when compared to white managers with comparable dates
of hire. Until now, such allegations of glass-ceiling obstacles
to upper-level management positions have never been held
to permit a massive class action absent proof that the barriers
to promotion emanate from discriminatory policies, rather
than job-related selection decisions or other exogenous
factors. And, until now, no nationwide class has been certified
without proof that nationwide discrimination occurred.

Under the district court’s analysis, evidence of purported
minority under-representation in upper-level management
positions anywhere in a national corporation may trigger class
certification if it is not explained by seniority and if it is
coupled with anecdotal evidence of discriminatory treatment
and subjective promotion criteria. Plaintiffs need not
demonstrate statistically significant labor market availability;
account for education, prior experience, or other factors
affecting promotion decisions; or produce evidence of
corporate-wide discriminatory policies or practices.

10

Such a momentous decision warrants careful appellate
consideration, and Sodexho therefore timely petitioned the
D.C. Circuit for leave to pursue an interlocutory appeal
pursuant to Rule 23(f). The petition raised several important
and unsettled issues of law:

Whether Falcon permits a district court to rely upon
statistical analyses and anecdotal evidence that, for
all practical purposes, the defendant is not allowed
to challenge or rebut — even though, under plaintiffs’
methodology, only a small percentage of regions
showed statistically significant adverse results?

Whether the existence of decentralized and subjective
decision-making in deciding promotions for
managerial and executive-level employees could
constitute a nationwide discriminatory policy
sufficient to satisfy the commonality requirement of
Rule 23(a)(2)?

Whether named plaintiffs are adequate class
representatives if they (or other class members) allege
discriminatory treatment by other class members?

Whether a district court may certify a class for
liability purposes only, without determining that the
remedies sought by the class satisfy Rule 23(b)?

The D.C. Circuit denied this petition in a per curiam
order stating that Sodexho had failed to demonstrate an
unsettled fundamental issue of law that is likely to evade
end-of-the-case review. App. 1a-2a. This standard, obviously,
is nearly impossible to meet, requiring proof of a likelihood
that Sodexho’s certification challenge would evade end-of-

nee memeemmemmemem
»

1]

the-case review. Short of a sworn declaration that it cannot
afford to take the case to trial given the risk of a crippling
damage award — a grave concession to make in any settlement
effort — it is difficult to see how Sodexho could ever satisfy
this test. Indeed, in applying virtually the same standard as
in the D.C. Circuit, the Second Circuit has stated candidly
that it will only “rarely” grant 23(f) requests.

This Court has never addressed Rule 23(f). In light of
the significance of the district court’s ruling and the sharp
division among the circuits as to the appropriate standards
for appellate review under Rule 23(f), this case presents a
compelling opportunity for the Court to resolve that conflict.

REASONS FOR GRANTING THE PETITION

Certification is often the case-defining event in a large
class action case. See, e.g., Szabo v. Bridgeport Machs., Inc.,
249 F.3d 672, 675 (7th Cir. 2001) (certification “may induce
a substantial settlement even if the [plaintiffs’] position is
weak”); Civil Rules Advisory Comm., Minutes, Nov. 9-10,
1995 hearing, 1995 WL 870908, at *4 (J.C.U.S. 1995)
(“[a] grant or denial of certification can ‘make or break’ the
litigation”). That is especially the case here in light of the
relief sought by the class — well over $1 billion arising from
the purported wrongful denial of promotions among 2,600
class members. Where the stakes are so momentous, this
Court should intervene and ensure that consistency among
the circuits and basic common sense prevail as to the
standards for interlocutory appeal of certification decisions.

12

A. The Conflict Among The Circuits Regarding The
Standards For Granting Review Under Rule 23(f).

The D.C. Circuit’s refusal to hear Sodexho’s appeal is
especially deserving of certiorari. Its standard for deciding
whether to exercise its broad discretion to decide Rule 23(f)
petitions for interlocutory appeal is virtually impossible to
meet, at least as stringent as the mandamus and 28 U.S.C.
§ 1291 remedies that it was intended to supplant. Both the
Third and Seventh Circuits have rejected the D.C. Circuit’s
restrictive tests.

This disparity among the Circuits was recognized by the
D.C. Circuit decision that first announced the rule, /n re:
Lorazepam & Clorazepate Antitrust Litig., 289 F.3d 98, 102-
04 (D.C. Cir. 2002). There, the D.C. Circuit considered but
rejected more liberal standards in favor of a test limiting Rule
23(f) appeals to cases where the petition satisfies one of three
grounds: (1) the certification decision constitutes a “death-
knell” for a party such that the case will not proceed further
and is “questionable” on the merits; (2) it presents an
unsettled and fundamental question of law that is important
both to the specific case and to class actions generally and is
“likely to evade end-of-the-case review”; or (3) the decision
is “manifestly erroneous.” /d. at 105. The D.C. Circuit did
not rule out other circumstances but made clear that Rule
“‘23(f) review should be granted rarely where a case does not
fall within one of these three categories.” Jd.

This standard is patently unfair and wholly unrealistic.
Cases with “manifest error” are rare and, in any event,
- remediable by mandamus. Death-knell cases and certification
decisions that are likely to evade end-of-the case review are

13

even more rare and extraordinary. Indeed, to prove that a
certification decision is likely to evade end-of-the-cas@
review, a defendant would have to prove that it cannot afford
to face the potentially devastating impact of an adverse class-
wide judgment and therefore will be forced to settle the case
before trial. The mere assertion of such a claim would greatly
prejudice the defendant: once it publicly announces its
unwillingness to risk trial, the defendant would have to
negotiate settlement from a vantage of absolute weakness,
having already declared a losing hand. Essentially, the
defendant who seeks interlocutory appeal must accept the
price that, if the appeal fails, it will likely have to capitulate
to the class*s demands ~ a risk that few, if any, Rule 23(f)
petitioners would ever accept.

In essence, the D.C. Circuit has established its own death-
knell rule for Rule 23(f). As of this petition, the D.C. Circuit
has yet to grant a Rule 23(f) petition. See Jn re Allstate Ins.
Co., No. 02-8010, 2002 WL 31545753, at *1 (D.C. Cir. Nov.
14, 2002) (per curiam); /n re Veneman, 309 F.3d 789, 794-
96 (D.C. Cir. 2002); Jn re Bioproducts, Inc., No. 02-8006,
2002 WL 1997993, at *1 (D.C. Cir. Aug. 29, 2002) (per
curiam); /n re Rand Corp., No. 02-8007, 2002 WL 1461810,
at *1 (D.C. Cir. July 8, 2002) (per curiam); /n re Lorazepam
& Clorazepate Antitrust Litig., 289 F.3d at 109 (all denying
Rule 23(f) petitions).°®

6. Contrast with cases from the following jurisdictions, all of
which granted Rule 23(f) review: Smilow v. S.W. Bell Mob. Sys.,
Inc., 323 F.3d 32, 36-37 (1st Cir. 2003); Beck v. Boeing Co., 320
F.3d 1021, 1023 (9th Cir. 2003); Mejdrech v. Met-Coil Sys. Corp.,
319 F.3d 910, 910 (7th Cir. 2003); O'Sullivan v. Countrywide Home
Loans, Inc., 319 F.3d 732, 737 (7th Cir. 2003); Sandwich Chef of
Tex., Inc. v. Reliance Nat. Indem. Ins. Co., 319 F.3d 205, 218-19

(Cont’d)

14

(Cont’d)

(Sth Cir. 2003); City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1100-
01 (11th Cir. 2002); Monahan v. City of Wilmington, 49 Fed. Appx.
383, 384, 2002 WL 31341336, at *1 (3rd Cir. 2002); Heimmermann
v. First Union Mortg. Corp., 305 F.3d 1257, 1259 (11th Cir. 2002);
Casas v. American Airlines, Inc., 304 F.3d 517, 520 (Sth Cir. 2002);
In re Linerboard Antitrust Litig., 305 F.3d 145, 150 (3d Cir. 2002);
Coleman v. General Motors Accept. Corp., 296 F.3d 443, 446 (6th
Cir. 2002); Franze v. Equitable Assurance, 296 F.3d 1250, 1251 (11th
Cir. 2002); McKowan Lowe & Co., Lid. v. Jasmine, Lid., 295 F.3d
380, 382 (3d Cir. 2002); In re Bridgestone/Firestone, Inc., 288 F.3d
1012, 1015-16 (7th Cir. 2002); Glover v. Standard Fed. Bank, 283
F.3d 953, 959 (8th Cir. 2002); West v. Prudential Secs., Inc., 282
F.3d 935, 937 (7th Cir. 2002); Rivera v. Wyeth-Ayerst Labs., 283
F.3d 315, 318 (Sth Cir. 2002); Smith v. Texaco, Inc., 281 F.3d 477,
479 (Sth Cir. 2002); Cason v. Nissan Motor Accept. Corp., 28 Fed.
Appx. 392, 393, 2002 WL 22351, at *1 (6th Cir. Jan. 7, 2002) (appeal
granted, then vacated on unrelated grounds); Piazza v. Ebsco Indus.,
Inc., 273 F.3d 1341, 1345 (11th Cir. 2001); In re Visa Check/
MasterMoney Antitrust Litig., 280 F.3d 124, 132 (2d Cir. 2001);
Johnston v. HBO Film Memt., Inc., 265 F.3d 178, 183 (3d Cir. 2001);
Isaacs v. Sprint Corp., 261 F.3d 679, 681 (7th Cir. 2001); Newton v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 162
(3d Cir. 2001); Berger v. Compaq Computer Corp., 257 F.3d 475,
478 (Sth Cir. 2001); Smilow v. S.W. Bell Mob. Sys., inc., No. 01-
8001, slip op. at 1-2 (1st Cir. July 12, 2001), cited in Smilow, 323
F.3d at 36; Lienhart v. Dryvit Sys., Inc., 255 F.3d 138, 141 (4th Cir.
2001); Zinser v. Accufix Res. Inst., Inc., 253 F.3d 1180, 1186
(9th Cir.), amended by 273 F.3d 1266 (9th Cir. 2001); Culpepper v.
Irwin Mortg. Corp., 253 F.3d 1324, 1326 (11th Cir.), reh’g denied,
273 F.3d 1118 (11th Cir. 2001), cert. denied, 534 U.S. 1118 (2002);
Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1236 n.7 (9th Cir.
2001); Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir.
2001); Murray v. Auslander, 244 F.3d 807, 810 (11th Cir. 2001);
Kirkland v. Midland Mortg. Co., 243 F.3d 1277, 1279 (11th Cir.
2001); In re LifeUSA Holding, Inc., 242 F.3d 136, 142 (3d Cir. 2001);

(Cont’d)

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15

This draconian impact should come as no surprise. With
the exception of the “manifest error” prong, the D.C. Circuit
standard was drawn from Jn re Sumitomo Copper Litig., 262
F.3d 134, 140 (2d Cir. 2001), which did not mince words as
to its intent to shut the door on Rule 23(f) appeals: “We
anticipate, therefore, that the[se] standards of Rule 23(f) will
rarely be met.”

That was never the intent of the authors of Rule 23(f).’
Throughout the Advisory Committee’s lengthy consideration
of this provision, the authors repeatedly described its
fundamental importance given the fact that class certification

(Cont'd)

Turner v. Beneficial Corp., 242 F.3d 1023, 1024 (11th Cir.) (en banc)
(referencing panel’s grant of 23(f) petition), cert. denied, 534 U.S.
820 (2001); Bertulli v. Indep. Ass'n of Cont’l Pilots, 242 F.3d 290,
293 (5th Cir. 2001); Patterson v. Mobil Oil Corp., 241 F.3d 417, 418
(Sth Cir. 2001); Smith v. Univ. of Wash. Law School, 233 F.3d 1188,
1192 (9th Cir. 2000); Bolin v. Sears, Roebuck & Co., 231 F.3d 970,
973 (5th Cir. 2000); Prado-Steiman ex rel. Prado v. Bush, 221 F.3d
1266, 1271 (11th Cir. 2000); Rutstein v. Avis Rent-A-Car Syc., Inc.,
211 F.3d 1228, 1231 (11th Cir. 2000); Pickett v. Jowa Beef Proc’rs,
209 F.3d 1276, 1279 (11th Cir. 2000); Waste Mgmt. Hldgs., Inc. v.
Mowbray, 208 F.3d 288, 295 (1st Cir. 2000); Jefferson v. Ingersoll
Int’l Inc., 195 F.3d 894, 897 (7th Cir. 1999); West Pub. Co. v. Carter,
No. 98-90015-D, 1999 WL 996377, at *1 (11th Cir. June 30, 1999);
Blair v. Equifax Check Servs., Inc., 181 F.3d 832, 837 (7th Cir. 1999).

7. Indeed, in a subsequent opinion, the Second Circuit allowed
interlocutory appeal under Rule 23(f) to address “a legal question
about which there is a compelling need for immediate resolution”
without requiring petitioner to demonstrate that that issue was likely
to evade end-of-the-case review. Jn re Visa Check/MasterMoney
Antitrust Litig., 280 F.3d 124, 132 n.3 (2d Cir. 2001). Thus, the
Second Circuit standard may in fact be significantly more liberal
than the D.C. Circuit standard.

16

is often a case-defining or deciding event. See, e.g., Civil
Rules Advisory Comm., Minutes, April 28-29, 1994, 1994
WL 809916, at *10 (J.C.U.S. 1994) (comments of Herbert
M. Wachtell, Esq., observing that provision for interlocutory
appeal “is a desirable supplement to interlocutory appeal by
certification of the district court and permission of the
appellate court” because “[t]he decision on class certification
is, at times, effectively the final decision in the action. Denial
leaves the representatives unable to litigate the claim, while
grant forces the defendant to settle’’).®

Indeed, the Advisory Committee defeated efforts to limit
the breadth of the Rule. In response to public comment and
testimony, the Committee removed statements in its Note
that would have advised courts that the Rule was not intended
to have broad effect: “Passages predicting that permission
to appeal would be granted with restraint, and that the

8. Accord, Civil Rules Advisory Comm., Minutes, Feb. 16-17,
1995, 1995 WL 870909, at *9 (J.C.U.S. 1995) (“Many participants
believed that the opportunity for appeal, controlled in the discretion
of the court of appeals, is highly desirable. The decision on class
certification can have overwhelming importance. A defendant may
feel forced to settle by certification, while a plaintiff may feel forced
to abandon the claim by denial of certification.”); id. at *17
(comments by Henry Thumann, Esq., describing 23(f) as a cure to
“the in terrorem effect of an improvidently certified class”); id.,
Minutes, Nov. 9-10, 1995, 1995 WL 870908, at *5 (“the draft is
intended to make appeals more readily available” and “the major
impetus for appeal will come in cases presenting unsettled issues
of law”); id., Minutes, May 1-2, 1997, 1997 WL 1056241, at *6
(“Appellate courts have strained to take a more active role in class-
action law in recent years, with good results. Affording a more regular
means of involvement, increasing the opportunities for appellate
review, may do much to simplify current law and make practice more
nearly uniform.”).

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17

proposed change is modest, were removed.” Civil Rules
Advisory Comm., Minutes, May 1-2, 1997, 1997 WL
1056241, at *7 (J.C.U.S. 1997). The final version of the Note
thus charges that appeals presenting significant legal issues
should be heard: “Permission is most likely to be granted
when the certification decision turns on a novel or unsettled
issue of law, or when, as a practical matter, the decision of
certification is likely dispositive of the litigation.” Fed. R.
Civ. P. 23(f) Advisory Committee Note (emphasis added).

The D.C. Circuit rule cannot be reconciled with these
principles. Even if the drafters intended courts of appeal to
have broad, unfettered discretion akin to this Court’s
discretion to grant or deny writs of certiorari, see id., they
did not intend for those courts to use that discretion to limit
review to the rarest of cases.

By contrast, standards adopted by the Third and Seventh
Circuit comport with the drafters’ intent, as they explicitly
allow interlocutory appeals raising significant issues without
requiring defendant prove that the issues are likely to evade
end-of-the-case review. See Newton v. Merrill Lynch, Pierce,
Fenner & Smith, Inc., 259 F.3d 154, 165 (3d Cir. 2001)
(allowing Rule 23(f) review if the district court made
“an erroneous ruling” or if the ruling would “facilitat[e]
development of the law on class certification”); Szabo y.
Bridgeport Machs., Inc., 249 F.3d 672, 675 (7th Cir. 2001)
(granting interlocutory appeal because (a) the size of the
proposed class put inordinate settlement pressure on the
defendant, (b) the district court’s decision was problematic,
and (c) the 23(f) petition raised “important legal issues” that
“have evaded attention by appellate courts”); Blair v. Equifax
Check Servs., Inc., 181 F.3d 832, 834-35 (7th Cir. 1999)
(permitting appeal where (a) denial of class certification

18

effectively ends the case; (b) grant of class certification raises
stakes of litigation and places inexorable pressure on
defendant to settle; and (c) appeal would clarify fundamental
issue of law).?

Not only is there an irreconcilable conflict between the
D.C. Circuit and the Third and Seventh Circuits, but there
also is a conflict between the D.C. Circuit and the Eleventh
and Fourth Circuits. Those circuits utilize a flexible “sliding
scale” test that permits review of important unsettled legal
issues without requiring proof that the issues will evade end-
of-the-case review. See Prado-Steiman ex rel. Prado v. Bush,
221 F.3d 1266, 1271-77 (11th Cir. 2000) and Lienhart v.
Dryvit Sys., Inc., 255 F.3d 138, 142-46 (4th Cir. 2001).'°

9. The First Circuit has praised the Seventh Circuit’s Blair
opinion as “cogently reasoned” and agreed that it “captures the
essential principles on which Rule 23(f) rests.” Waste Mgmt.
Holdings, Inc. v. Mowbray, 208 F.3d 288, 293 (1st Cir. 2000).
Nevertheless, to avoid a flood of interlocutory appeals and ensure
that Rule 23(f) remains “the exception, not the rule,” id., Mowbray
amended Blair’s third factor (fundamental issues of law) to emphasize
that the issue must be “likely to escape effective review.” Jd. at 294.
Thus, the First Circuit has adopted a highly restrictive standard closer
to that of the D.C. Circuit, even though it professes affinity with the
Seventh Circuit.

-10. In Prado-Steiman, the Eleventh Circuit identified the
following factors: (1) whether the district court’s order is likely
dispositive of the htigation by creating a “death knell” for either
plaintiff or defendant; (2) whether petitioner has shown a substantial
weakness in the class certification decision, such that the decision
likely constitutes an abuse of discretion; (3) whether the appeal will
permit resolution of an unsettled legal issue that is important to the
particular litigation as well as important in itself; (4) the nature and

(Cont’d)

i athe

19

Unlike the D.C. Circuit, the Third and Seventh Circuits
recognize that Rule 23(f) review is important because class
actions usually settle and, as a result, key district court
decisions have “not been subject to appellate consideration.”
Szabo, 249 F.3d at 676. Thus, those courts focus on whether
an appeal presents significant legal issues, whereas the D.C.
Circuit considers whether end-of-the-case review is likely.
Not surprisingly, the Third, Seventh, and Eleventh Circuits
have employed Rule 23(f) to address significant class
certification issues.

B. Sodexho’s Petition Satisfied The Third, Fourth,
Seventh, And Eleventh Circuits’ Standards For Rule
23(f) Review.

The Newton, Szabo, and Blair factors fit this case like
Cinderella’s glass slipper. There is little question that, under
the Third or Seventh Circuit standards or the broad balancing
test used in the Eleventh and Fourth Circuits, Rule 23(f)
review would have been granted in this case.

The massive size of the certified class and plaintiffs’
claims alone would justify 23(f) review in the Seventh and

(Cont'd) :

status of the litigation before the district court; and (5) the likelihood
that future events may make immediate appellate review more or
less appropriate. Since Prado-Steiman, the Eleventh Circuit has
granted Rule 23(f) petitions eight times (eleven times overall) and
denied appeal once. The Sixth Circuit also employs a balancing test
but does not mandate specific factors. See In re Delta Air Lines, 310
F.3d 953, 959 (6th Cir. 2002) (denying review under balancing test
that expressly “eschew[s] any hard-and-fast” bright-line rule and
instead holds that “any pertinent factor may be weighed in the exercise
of th{e court’s] discretion” to allow or reject Rule 23(f) petitions).

20

Third Circuits. See /saacs v. Sprint Corp., 261 F.3d 679, 681
(7th Cir. 2001) (“all [circuits] agree that a compelling case
for the exercise of our new discretion is one in which the
grant of class status places undue pressure on the defendant
to settle regardless of the actual merit of the suit”). As the
Seventh Circuit stated in Szabo, a certification order that
“turns a “$ 200,000 dispute (the amount Szabo claims as
damages) into a $ 200 million dispute. . . . puts a bet-your-
company decision to [defendant]” that may “induce a
settlement even if the [plaintiffs’] position is weak.” Szabo,
249 F.3d at 675. Indeed, the historical record shows just that.
Since Title VII was amended over a decade ago to include
compensatory and punitive damages, no private sector
employment discrimination class action to Sodexho’s
knowledge has proceeded through a full trial of liability and
damages. Interlocutory review under Rule 23(f) is the only
meaningful recourse for most defendants in Sodexho’s
situation.

Sodexho’s petition also raised fundamental, unsettled
issues of class action law that readily satisfied the Third and
Seventh Circuit’s tests.

First, Sodexho raised an open question in the D.C.
Circuit (and a direct conflict among other circuits) as to
whether a district court’s class certification analysis is limited
to consideration of the plaintiffs’ evidence or whether the
court may consider rebuttal evidence offered by the
defendant. Applying Second Circuit precedent, the district
court held that it could not consider defendant’s statistical
evidence demonstrating the absence of class-wide
discrimination, even where that evidence was interstitial in
nature and not simply reflecting a disagreement of experts.
The only material question was whether plaintiffs’ statistical

21

evidence was sufficiently relevant to the claims to be
admissible (i.e., a minimal Daubert question). Under this
standard, little more than a deferential Fed. R. Civ. P. 12(b)(6)
analysis is needed for certification, and any artfully framed
complaint supported by a colorable expert opinion will satisfy
Fed. R. Civ. P. 23. =~

This issue clearly constituted an unsettled, fundamental
issue of law regarding class certification. While a sharply
divided (2-1) Second Ciréuit panel opinion in Caridad v.
Metro-North Commuter R.R. Co., 191 F.3d 283, 292 (2d Cir.
1999) supported the district court’s opinion, both the Third
and Seventh Circuits reject that approach. See Newton, 259
F.3d at 167 (concluding that court may make a preliminary
inquiry into the merits and should decide certification
“‘only after consideration of all relevant evidence and
arguments’”); Szabo, 249 F.3d at 675 (reversing district court
decision that had “certified the class without resolving factual
and legal disputes that strongly influence the wisdom of class
treatment’). Indeed, in Szabo, the Seventii Circuit expressly
stated that the “proposition that a district court must accept
all of the complaint’s allegations when deciding whether to
certify a class cannot be found in Rule 23 and has nothing to
recommend it[,]” 249 F.3d at 675, a position diametrically
contrary to that of the district court and Caridad."

11. Earlier decisions in at least two other circuits agree with
the Third and Seventh Circuits. See Castano v. Am. Tobacco Co., 84
F.3d 734, 744 (Sth Cir. 1996) (holding that Zisen v. Carlisle &
Jacquelin, 417 U.S. 156, 177 (1974) does not bar inquiry beyond
sufficiency of plaintiffs’ allegations); Stastny v. S. Bell Tel. & Tel.
Co., 628 F.2d 267, 273-74 (4th Cir. 1980) (district court must delve
into the circumstances of the case because at this stage “the class
action and merit inquiries essentially coincide”). Some c.strict courts

(Cont’d)

22

Commentators have underscored the profound significance
of this conflict among the circuits, especially for employment -
discrimination cases, and called for clarification. See Robert G
Bone and David S. Evans, Class Certification and the
Substantive Merits, 51 Duke L.J. 1251, 1270 (2002) (describing
“a rather muddled body of case law” in which the “[cJourts
disagree about how closely they can examine evidence and
scrutinize the factual merits at the certification stage’”’). As Bone
and Evans explain, the practical impact of a holding that district
courts lack authority to engage in a critical analysis of plaintiffs’
expert opinion, notwithstanding Falcon’s admonition that courts
must “rigorously” assess class claims, is to ensure certification.
Id. at 1325-26 (effect “is to insulate almost any expert’s statistical
evidence from challenge at this certification stage and virtually
guarantee plaintiffs’ success in establishing certificatior
requirements. ... even when the evidence for company-wide
discrimination is seriously flawed”’) (emphasis added). This case,
where the district court essentially started and stopped with
plaintiffs’ allegations and adopted their tepid statistical analysis
wholesale,'’? presents a paradigm vehicle to address this
fundamental issue of law.

(Cont’d)

have therefore freely considered defendanis’ statistical evidence and
expert reports. See, e.g., Rhodes v. Cracker Barrel Old Country Store,
Inc., 213 F.R.D. 619, _, 2003 WL 933152, at *52 (N.D. Ga. Mar. 7,
2003) (observing that where “statistical evidence established Rule
23 commonality and typicality elements[,]” the court “was obligated
to conduct a careful review of the statistical evidence presented”);
Serafty v. Inter. Automated Sys., Inc., 180 F.R.D. 418, 421-22 (D.
Utah 1998) (crediting defendant’s expert statistical analysis as basis
for rejecting certification).

12. As previously stated, Dr. Siskin’s methodology was
seriously flawed: (1) it did not account for important variables such
(Cont’d)

23

Second, Sodexho challenged the district court’s ruling
that the existence of a decentralized and allegedly subjective
system for managerial and executive level promotions may
constitute a sufficient “policy” with discriminatory impact
across the entire class. Here, too, the circuits are in conflict,
and no clear D.C. Circuit precedent exists. Indeed, the district
court itself recognized he lack of controlling precedent, see
App. 35a, 208 F.R.D. at 442 (“there is really no case on
point”), but it again essentially sided with Caridad,
concluding that Dr. Siskin’s finding of a shortfall in
promotions for African Americans meant that Sodexho’s
subjective and decentralized process reflected a
discriminatory policy.

As the district court recognized, the issue needs appellate
scrutiny. A flurry of recent district court opinions have refused
to certify classes in employment discrimination cases
involving highly decentralized, geographically sprawling
companies on commonality, typicality, or Rule 23(b)(3)

(Cont’d)

as prior job experience or education, (2) it did not distinguish between
seniority earned in managerial positions and non-managerial positions
or in full-time and part-time positions, and (3) it did not analyze the
results by division and region to determine whether a pattern of
adverse treatment actually exists across Sodexho nationally. Just as
troubling, the district court failed to analyze meaningfully Sodexho’s
evidence of a clear and fatal conflict of interest among class
representatives and members, which, under D.C. Circuit precedent,
Wagner v. Taylor, 836 F.2d 578, 595 (D.C. Cir. 1987), should have
precluded certification. Those intra-class conflicts, a predictable
consequence of certifying a class that includes all levels of
management — from entry-level to division president — were not
speculative and instead were well-documented by detailed testimony.
The district court, however, sidestepped this defect by summarily
dismissing that testimony as “confusing.”

24

grounds.'* By contrast, over a vigorous dissent, the divided

13. The district court elected not to follow numerous recent
precedents to the contrary. See, e.g., Reid v. Lockheed Martin
Aeronautics Co., 205 F.R.D. 655, 670 (N.D. Ga. 2001) (use of
decentralized, subjective hiring criteria for “broad, multi-facility
class” defeats certification); Cooper v. Southern Co., 205 F.R.D. 596,
626-27 (N.D. Ga. 2001) (in large, geographically sprawling company,
individual managers’ discretion did not constitute a “policy” of
discrimination); Donaldson v. Microsoft Corp., 205 F.R.D. 558, 567
(W.D. Wa. 2001) (“[cJourts have recognized that it is not possible to
make a finding of commonality where the putative class involves
extensive diversity in terms of geography, job requirements, and/or
managerial responsibilities”); Beck v. Boeing Co., 203 F.R.D. 459,
463-64 (W.D. Wa. 2001) (“if these statistics do not apply at each and
every location covered by the putative class, commonality has not
been established”, aff'd in part, rev'd in part on other grds., 60 Fed.
Appx. 38, 2003 WL 683797 (9th Cir. Feb. 25, 2003); Wright v. Circuit
City Stores, Inc., 201 F.R.D. 526, 542 (N.D. Ala. 2001) (claims of
individuals “who worked in a 542 multi-state geographical area, in
different organizational divisions ..., in separate facilities, at
different times, reporting directly to and under the direct supervision
of numerous autonomous decision-makers.... do not lend
themselves to class treatment”); Abram v. United Parcel Serv. of Am.,
Inc., 200 F.R.D. 424, 432 (E.D. Wis. 2001) (“[hJere, by contrast, the
decisions of apparently hundreds of center managers are implicated,
requiring many individualized inquiries that not only undermine
‘commonality’ but also have the potential to render class treatment
unworkable”); Reap v. Cont’l Cas. Co., 199 F.R.D. 536, 544-45
(D.N.J. 2001) (“policy of delegating discretionary employment
decisions to local supervisors” is not ordinarily a basis for class
certification “absent an allegation that the company intended to use
this policy to discriminate”); Miller v. Hygrade Food Prods. Corp.,
198 F.R.D. 638, 642-44 (E.D. Pa. 2001) (individualized inquiries
predominate where subjective standards were applied to “individuals
employed in different divisions, under different supervisors, for
varying durations of time”); Lott v. Westinghouse Savannah Co. River

(Cont’d)

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25

panel in Caridad reversed a district court decision that had
reached a similar outcome. See 191 F.3d at 292; compare
with 191 F.3d at 296 (Walker, J., dissenting) (“As a matter
of law, I cannot agree ... that [defendant’s] practice of
delegating personnel decisions — plaintiffs prefer to call it
‘overdelegation’ — constitutes a policy or practice sufficient
to satisfy the commonality requirement’).

The significance of this issue is compounded
exponentially by the transparent flaws in plaintiffs’ expert
evidence. Many large corporations are vulnerable to

(Cont’d)

Corp., 200 F.R.D. 539, 556 (D.S.C. 2000) (“[t]he diversity of
employment conditions, coupled with the sheer absence of evidence
proving [that] centralized decisionmaking for the types of decisions
challenged in this suit compels the court to find a lack of
commonality”); Zachery v. Texaco Explor. & Prod., Inc., 185 F.R.D.
230, 239-40 (W.D. Tex. 1999) (refusing to certify multi-facility class
working in 17 business units spread across 15 states, each with
varying amounts of local autonomy over employment decisions);
Betts v. Sunstrand Corp., No. 97 C 50188, 1999 WL 436579, at *7
(N.D. Ill. 1999) (“[t]he lack of a centralized hiring decisionmaker,
the sheer number of managers who hire applicants, and the wide
range of jobs included in the prospective class, indicate the lack
of a common nucleus of operative fact between class members”);
Abrams v. Kelsey-Seybold Med. Group, Inc., 178 F.R.D. 116, 130
(S.D. Tex. 1997) (commonality and typicality lacking because
“the members of the purported class were not subjected to the
same decision making authority”); Zapata v. IBP, Inc., 167 F.R.D.
147, 159 (D. Kan. 1996) (absence of centralized employment
decisionmaking or a showing of decentralization by the defendant
may result in denial of class certification). See also Stastny v. S. Bell
Tel. & Tel. Co., 628 F.2d 267, 278 (4th Cir. 1980) (reversing
certification of statewide class where district court had failed
“to appreciate the significance of the dispersion of . . . class members
throughout a great number of geographically separated facilities”).

26

a potentially devastating class action if subjective,
decentralized decision-making for management level
positions may be deemed a discriminatory “pattern or -
practice” merely because of a shortfall in promotions for
African American managers to upper level managerial
positions when measured by the date of their hire but not
measured by potential differences in region, job status,
education, prior experience, part-time experience or other
obvious candidates that could account for the disparity. At
least in Caridad, the plaintiffs’ expert “controlled for various
factors that one would expect to be relevant to the likelihood
of disciplinary action and promotion.” 191 F.3d at 293

Finally, Sodexho petitioned the D.C. Circuit to consider
another important, fundamental issue of law: whether the
district court properly certified a class only for liability
purposes without determining that the remedies sought by
the class satisfy Rule 23(b). The district court acknowledged
that at least one of plaintiffs’ claims (a continuing violation
theory) might preclude certification under Rule 23(b) for a
remedy, see App. 40a n.27, 208 F.R.D. at 444 n.27, thus
raising a clear possibility that plaintiffs’ claims ultimately
might not satisfy Rule 23(b). Again, the circuits have split
on whether a district court may use a partial certification
mechanism to avoid Rule 23(b). Compare Castano v.
Am. Tobacco Co., 84 F.3d 734, 745 n.21 (Sth Cir. 1996)
(“The proper interpretation of the interaction between
subdivisions (b)(3) and (c)(4) is that a cause of action, as a
whole, must satisfy the predominance requirement of (b)(3)
and that (c)(4) is a housekeeping rule that allows courts to
sever the common issues for a class trial.”) with Robinson
v. Metro-North Commuter R.R. Co., 267 F.3d 147, 167-69
(2d Cir. 2001) (allowing district court’s partial certification).

27

Each of these issues warranted appellate review in its
own right. Collectively, they presented a compelling set of
important issues lying at the intersection of Rule 23 and
massive employment discrimination actions. They easily
parallel the issues raised in the numerous appeals that other
circuits have allowed under Rule 23(f).

The unfairness of de minimis review under Rule 23(f)
has not escaped Congressional attention. See Civil Rules
Advisory Comm., Minutes, May 1-2, 1997, 1997 WL
~ 1056241, at *6. Last year, the House of Representatives
passed a bill, H.R. 2341, mandating an automatic right to
interlocutory appeal of all certification decisions under Rule
23, and a similar bill has been introduced this year.
Unfortunately for Sodexho and the many others in its
predicament, even if it were to become law as currently
drafted, the bill might not apply to currently pending cases.
Nevertheless, the fact that the House would be so struck by
the unfairness of the lack of an opportunity for interlocutory
appeal that it would take steps to supersede Rule 23(f) speaks
volumes to the degree to which the D.C. Circuit has strayed
from the original intent of the Rule.

The interlocutory nature of Rule 23(f) makes certiorari
imperative. By definition, if the conflict among the circuits
regarding Rule 23(f) is ever to be reviewed by this Court, it
must be done following the denial of leave to pursue an
interlocutory appeal, as here. Given the magnitude of the
class certified by the district court, the existence of numerous
unsettled and important issues of law, and the overwhelming
impact of the certification decision on the course of the case,
the issue presented herein is uniquely situated for review by
this Court.

28

CONCLUSION

For the foregoing reasons the petition for a writ of
certiorari should be granted.

Respectfully submitted,

GEORGE W. JOHNSTON

Topp J. Horn*

MITCHELL Y. Mirviss

VENABLE, BAETJER AND Howarp, LLP
1800 Mercantile Bank & Trust Bldg.
Two Hopkins Plaza

Baltimore, Maryland 21201

(410) 244-7400

Attorneys for Petitioner

* Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1633%3A1. Public record. Not legal advice.