Ninth Circuit Affirms Denial of Class Certification in Gender Bias Case

Reinforcing the burden on any putative class to satisfy all of the requirements of Federal Rule of Civil Procedure 23, the U.S. Court of Appeals for the Ninth Circuit has affirmed the district court’s order denying the plaintiffs’ motion for class certification in an employment discrimination action. Moussouris v. Microsoft Corp., No. 18-35791 (9th Cir. Dec. 24, 2019).

The three-judge panel, consisting of Circuit Judges Richard Paez and Johnnie Rawlinson and District Judge Leslie Kobayashi (sitting by designation) separately affirmed the district court’s denial of class certification of the plaintiffs’ disparate impact and disparate treatment claims.

First, on the disparate impact claims, the panel held the district court did not abuse its discretion when it found that the proposed class did not satisfy the “commonality” requirement of Rule 23. To satisfy this requirement, the proposed class must pose “a common question that will connect many individual promotional decisions to their claim for class relief” and “produce a common answer to the crucial question why was I disfavored?” The panel found that in this case, there were no common questions because the proposed class consisted of more than 8,600 women holding more than 8,000 different positions in various facilities throughout the country. Moreover, the panel held that the plaintiffs failed to identify any “common mode” of discretion throughout the company because individual managers exercised broad discretion in assessing employees.

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

Please contact a Jackson Lewis attorney with any questions about this case or the class actions.

Class Action Trends Report – Fall 2019

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims. This issue covers the following topics:

  • Proliferation of independent contractor claims
  • Wage and hour
  • The persistant and seismic impact of #MeToo
  • Disparate impact
  • The onslaught of privacy class actions

Click here to download the full report.

Ninth Circuit Hears Oral Argument in Gender Bias Case

Whether a gender bias case can proceed as a class action is the question the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, will decide.

The Court heard oral argument in Moussouris v. Microsoft Corp. on November 4. Katherine Moussouris appealed from the District Court’s denial of class certification in the gender discrimination action. U.S. District Judge James Robart of the Western District of Washington held that the proposed putative class members were not shown to be victims of a standard companywide policy. To the contrary, his order from June 25, 2018, holds:

Plaintiffs challenge Microsoft’s policy of allowing discretion by lower-level managers but have not identified a common mode of exercising discretion that pervades the entire company. As in Dukes, without some common direction, it is “quite unbelievable” that all Microsoft managers supervising over 8,600 putative class members “would exercise their discretion in a common way.”

The three-judge panel that heard the oral argument on appeal consisted of Circuit Judges Richard Paez and Johnnie Rawlinson and District Judge Leslie Kobayashi (sitting by designation). Moussouris’s counsel argued the District Court erred in denying class certification, claiming that women were locked into lower pay bands than men, and therefore often were paid less than their male counterparts even where they performed at an equal or higher level. Moussouris’s counsel also argued that employees were placed into peer groups composed of employees with similar skillsets, that each peer group had two pay bands, and that women were disproportionately concentrated in the lower pay bands of each peer group.

The judges, particularly Judge Rawlinson, repeatedly queried Moussouris’s counsel to point out the specific Microsoft corporate policy that allowed women to be placed in lower pay bands than men. Judge Paez also asked Moussouris’s counsel for the specific factors that were taken into consideration when evaluating members of each peer group, and whether these evaluations were discretionary. Moussouris’s counsel replied that while there was managerial discretion in evaluating employee performance, managers were restricted by the pay bands that employees were already locked into under corporate policy when determining how much to pay them. Judge Rawlinson repeatedly stated that she was “having a disconnect” because while she didn’t “necessarily disagree that the statistics are there, [] Dukes tells us that there has to be a policy that has resulted in that disparity that we can say applies across the board to every decision that’s made.” Despite asking several times to point to the specific policy Moussouris was challenging, her counsel did not appear to convince Judge Rawlinson of any specific policy in the record.

Counsel for Microsoft argued that, rather than a corporate policy in place, all decisions were made according to a calibration process in which managers would use their discretion to assess an employee’s relative contributions. Microsoft’s counsel argued that Moussouris’s own expert noted that these calibrations were extraordinarily varied and involved extensive managerial discretion. Microsoft’s counsel also pointed out that the alleged policy at issue seemed to change over time and that the current theory espoused by Mourssouris’s counsel was first introduced to the lower court at the hearing on her Motion for Certification and that the record lacked support for what Microsoft argued was the new theory of the putative class. Moreover, Microsoft’s counsel reiterated the difficult standard Moussouris was required to overcome on appeal: a clear abuse of discretion by the District Court in applying the Rule 23 criteria, and that Judge Robart’s decision contained neither an error of law or fact and that he did not abuse his discretion.

The questioning suggested that, without pinpointing a precise companywide policy that perpetuated discrimination, overturning the denial of class certification will be difficult. As this case relied heavily on the Dukes decision, we will be watching to determine whether the 9th Circuit differentiates this case from Dukes or follows Justice Scalia’s opinion.

Illinois Continues to Increasingly Regulate AI in the Workplace

Illinois continues to adopt additional privacy and security legislation. The Prairie State is home to the Biometric Information Privacy Act, first of its kind legislation regulating the collection and possession of biometric information, and also the Personal Information Protection Act, considered one of the more expansive data breach notification laws in the nation. And now, the Illinois state legislature unanimously passed the Artificial Intelligence Video Interview Act (“the AIVI Act”), HB2557, which imposes consent, transparency and data destruction requirements on employers that implement AI technology during the job interview process. The AIVI Act, the first state law to regulate AI use in video interviews, will take effect January 1, 2020.

Given the increase in litigation surrounding similar legislation, employers will want to closely monitor this law.  Please find the rest of this article discussing this legislation in more detail on our Workplace Privacy, Data Management & Security Report here

Jackson Lewis Complex Class Action Summit – November 8th

Join Jackson Lewis P.C.’s Class Actions and Complex Litigation attorneys on November 8th for a full day CLE program where we will discuss key strategies for defending and avoiding class actions. We will also review new trends and challenges facing employers. Click here for a full list of topic descriptions.


8:30 — 9:00 a.m.                Registration and Breakfast

9:00 a.m. — 12:15 p.m.     Program

12:15 — 1:15 p.m.              Lunch

1:15 — 4:40 p.m.                Program

4:40 — 5:45 p.m.                Cocktail Reception


  • TCPA, and BIPA, and CCPA, and Breaches Oh My! The Onslaught of Class Actions Designed to Protect Privacy
  • Website Accessibility Lawsuits: How to Protect Yourself from Serial Claims
  • #EqualPay: The Media is Drumming Up Business for the Plaintiffs’ Bar — Are You Ready?
  • Your “Second Chair” at Trial and it’s Always Right! Leveraging Data and Analytics to Defend Class and Collective Claims
  • Going on the Offensive: Strategic Use of e-Discovery in Class and Collective Actions
  • Wage and Hour Class and Collective Actions: What’s Old, What’s New and What’s Next
  • Will the Plaintiffs’ Bar Ever Give Up? Arbitration Agreements and Class Action Waivers after Epic Systems
  • Rules Are Made to be…Followed? Ethical Challenges in Class Litigation

Jackson Lewis reserves the right to limit attendance or deny registration at its discretion.

For information about the firm’s financial hardship policy, please email

Contact Us for More Information

Please contact Brooke Cassens at

Class Action Trends Report Summer 2019

Our quarterly report discusses new developments in class action litigation and offers strategic guidance and tactical tips on how to defend such claims. This issue covers the following topics:

  • Data privacy: The newest class action threat
  • California Consumer Privacy Act
  • The GDPR is the model
  • State consumer privacy and security laws likely to proliferate

Click here to download the most recent issue.

Eleventh Circuit Ruling May Impact TCPA Class Actions

Last week, the Eleventh Circuit ruled that a single unsolicited text message doesn’t meet the harm requirement necessary to proceed with a Telephone Consumer Protection Act (TCPA) claim.   The Eleventh Circuit ruling, Salcedo v. Hanna, reverses a decision by a lower court allowing the plaintiff to move forward with a TCPA claim on grounds that he received an unsolicited text message from his former attorney.

Please find the rest of this article on our Workplace Privacy, Data Management & Security Report here.

COBRA Notices Potentially Subject to Class Action Litigation if Not Complete

Recently in Florida, three separate class action lawsuits alleged that the employer’s Consolidated Omnibus Reconciliation Act (COBRA) notice did not comply with the Department of Labor regulation.

COBRA, an amendment to the Employee Retirement Income Security Act (“ERISA”), applies to employers with at least 20 employees on more than 50 percent of its typical business days in the previous calendar year who provide a group health plan.  COBRA requires the plan administrator to provide certain notices to plan participants, both upon initial enrollment in the plan and upon a qualifying event, such as a termination of employment or divorce, if that event results in the loss of health plan coverage or an increase in the premiums being charged to the individual.

In the most recent case, the spouse of a former employee of a technology company alleged that the COBRA notice they received failed to identify a termination date for the health care coverage, location of where payments should be sent, and name of the plan administrator.  In the suit, she sought to certify a class of the company’s Group Benefits Plan participants and requested statutory penalties of $110 to each participant or beneficiary per day that the company allegedly failed to comply with the notice requirements.

While this case and another case in Florida have settled, a third case with similar allegations remains pending.

The good news is that compliance with the COBRA notice requirements is straightforward.  The Department of Labor has available a model notice that employers should review for assistance in drafting their own notices.  Given the uptick in litigation surrounding these notices, strict compliance with the model notice is encouraged.

Georgia Supreme Court May Weigh in on Standing in Data Breach Litigation

The Georgia Supreme Court may weigh in on the hot issue plaguing data breach class action litigation across the nation, must a data breach victim suffer actual financial loss to recover damages, or is the threat of future harm enough? On August 20, the Georgia Supreme Court heard arguments in a class action suit stemming from a data breach in September 2017 at Athens Orthopedic, exposing 200,000 of its current and former patients’ personal information including names, addresses, social security numbers, dates of birth and telephone numbers. Upon discovery of the breach, Athens Orthopedic advised patients to place fraud alerts on their credit accounts and seek other advice.

Please find the rest of this article on our Workplace Privacy, Data Management & Security Report here.