No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Transcription

1 No IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SHIRLEY RAE ELLIS, LEAH HORSTMAN, AND ELAINE SASAKI, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, v. Plaintiffs-Appellees, COSTCO WHOLESALE CORPORATION, Defendant-Appellant. On Appeal from the United States District Court for the Northern District of California, San Francisco Division, Civil Action No MHP SUPPLEMENTAL BRIEF AMICUS CURIAE OF THE EQUAL EMPLOYMENT ADVISORY COUNCIL IN SUPPORT OF DEFENDANT-APPELLANT AND IN SUPPORT OF REVERSAL Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Ste. 400 Washington, DC (202) rvann@ntll.com July 25, 2011 Attorneys for Amicus Curiae Equal Employment Advisory Council

2 CORPORATE DISCLOSURE STATEMENT Pursuant to Fed. R. App. P. Rules 26.1 and 29(c), Amicus Curiae Equal Employment Advisory Council discloses the following: 1. The Equal Employment Advisory Council has no parent corporations and no subsidiary corporations. 2. No publicly held company owns 10% or more stock in the Equal Employment Advisory Council. Respectfully submitted, July 25, 2011 s/ Rae T. Vann Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Ste. 400 Washington, DC (202) rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council

3 FEDERAL RULE 29(c)(5) STATEMENT No counsel for a party authored this brief in whole or in part; No party or counsel for a party contributed money that was intended to fund the preparation or submission of this brief; and No person other than amicus curiae, their members or their counsel contributed money that was intended to fund the preparation or submission of this brief. Respectfully submitted: s/ Rae T. Vann Rae T. Vann NORRIS, TYSSE, LAMPLEY & LAKIS, LLP 1501 M Street, N.W., Ste. 400 Washington, DC (202) rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council July 25, 2011

4 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii INTEREST OF THE AMICUS CURIAE...1 INTRODUCTION...2 SUMMARY OF ARGUMENT...4 ARGUMENT...7 I. THE CLASS CERTIFICATION DECISION BELOW IMPERMISSIBLY CONFLICTS, AND CANNOT BE RECONCILED, WITH THE U.S. SUPREME COURT S RULING IN WAL-MART v. DUKES...7 A. The District Court s Misapplication Of Blackie And Unwavering Reliance On Eisen To Justify Its No Merits Rule 23 Analysis Warrants Immediate Reversal In Light Of Dukes...9 B. Plaintiffs Cannot Establish Rule 23(a) Commonality Applying The Standards Expressed By The Supreme Court In Dukes...11 C. Dukes Confirms That Rule 23(b)(2) Class Certification Is Improper Where, As Here, Money Damages Predominate Over Injunctive Relief...13 II. FAITHFUL ADHERENCE TO THE RIGOROUS CLASS CERTIFICATION STANDARDS REAFFIRMED IN DUKES IS CRITICAL TO EFFICIENT AND EXPEDITIOUS RESOLUTION OF TITLE VII LITIGATION...15 CONCLUSION...16 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE

5 ii TABLE OF AUTHORITIES FEDERAL CASES Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975)...2, 5, 9 Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010)...2, 8, 9, 13 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)...4, 9 General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147 (1982)..4, 5, 8, 10 Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003)...2, 13 Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011).. passim FEDERAL STATUTES Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq...1, 2, 6, 7 RULES Federal Rule of Civil Procedure passim Federal Rule of Civil Procedure 23(a)... passim Federal Rule of Civil Procedure 23(b)(2)...passim ii

6 The Equal Employment Advisory Council respectfully submits this supplemental brief amicus curiae contingent upon granting of the accompanying unopposed motion for leave to file. The brief joins in the arguments and factual statements of Defendant-Appellant Costco Wholesale Corporation in support of reversal of the district court ruling below. INTEREST OF THE AMICUS CURIAE The Equal Employment Advisory Council (EEAC) is a nationwide association of employers organized in 1976 to promote sound approaches to the elimination of discriminatory employment practices. Its membership includes approximately 300 of the nation s largest private sector companies, collectively providing employment to roughly twenty million people throughout the United States. All of EEAC s member companies are employers subject to Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., as amended, and other equal employment statutes and regulations. Many of these companies do business within the Ninth Circuit. Accordingly, the issues presented in this matter are extremely important to the nationwide constituency that EEAC represents. Because of its interest in this matter, EEAC filed amicus curiae briefs supporting Defendant-Appellant Costco Wholesale Corporation s interlocutory appeal to this Court, as well as amicus curiae briefs supporting reversal before the panel and the

7 2 en banc Ninth Circuit in Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (en banc), and before the U.S. Supreme Court in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). INTRODUCTION This is an interlocutory appeal of an order granting Rule 23 certification of a class of current and former employees alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., as amended. On April 16, 2008, this Court ordered the case withdrawn from submission pending en banc resolution of Dukes v. Wal-Mart Stores, Inc., No Ellis v. Costco Wholesale Corp., No (9th Cir. Apr. 16, 2008) (Order withdrawn from submission). On April 26, 2010, a divided en banc Court affirmed the district court s class certification decision in Dukes. Dukes v. Wal- Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010) (en banc). In doing so, it clarified the meaning of this Court s prior ruling in Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975) and, importantly, expressly overruled its decision in Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003), on which the district court relied heavily in certifying the class. On July 6, 2010, this matter was resubmitted to the panel, which subsequently ordered supplemental briefing on the impact, if any, of the Dukes en banc decision. Thereafter, the U.S. Supreme Court granted a writ of certiorari in 2

8 3 Dukes, 131 S. Ct. 795 (2010) (petition for cert. granted in part), whereupon this Court ordered this matter held in abeyance pending resolution of that case by the Supreme Court. On June 20, 2011, the Supreme Court ruled unanimously in Dukes that class certification was improper under Rule 23(b)(2) of the Federal Rules of Civil Procedure, because the plaintiffs demand for monetary damages was not incidental to declaratory and injunctive relief. Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). A 5-4 Court majority also held that the plaintiffs, who alleged a pattern of systemic sex discrimination in pay and promotions across various positions and by different supervisors at thousands of Wal-Mart stores, were unable to establish that the class as a whole suffered the same injury or that the injury is capable of redress on a classwide basis, and therefore could not satisfy the requirements of Rule 23(a). Pointing to the literally millions of employment decisions at issue in the case, 180 L. Ed. 2d at 391, Justice Antonin Scalia, writing for the majority, observed, Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members claims for relief will produce a common answer to the crucial question why was I disfavored. Id. Because the plaintiffs were not able to establish questions of fact or law common to the group as a whole applying that appropriately rigorous 3

9 4 standard, the majority concluded, class certification was improper as a matter of law. By Order dated June 23, 2011, this Court ordered the parties to submit supplemental briefs regarding the impact of the Supreme Court s decision in Dukes on the instant appeal. SUMMARY OF ARGUMENT The district court s class certification ruling must be reversed because it impermissibly conflicts with the U.S. Supreme Court s recent decision in Wal- Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). There, the Supreme Court held that a group of current and former employees of Wal-Mart claiming sex discrimination in pay and promotion practices could not proceed as a class under Rule 23 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 23. In arriving at that conclusion, the Supreme Court reaffirmed the principle established in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982), that trial courts are to conduct a rigorous analysis in determining whether plaintiffs evidence supports Rule 23 class certification, which sometimes will require the court to probe behind the pleadings before coming to rest on the certification question. Wal-Mart, 180 L. Ed. 2d at 390 (quoting Falcon, 457 U.S. at 160). It clarified the meaning of Falcon in light of its earlier decision in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), which some courts, including the 4

10 5 district court below, believed prohibited any merits-based review at the class certification stage. The Court said unequivocally, [t]o the extent the quoted statement goes beyond the permissibility of a merits inquiry [in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants], it is the purest dictum and is contradicted by our other cases. 180 L. Ed. 2d at 391 n.6. In granting Rule 23 class certification, the district court below concluded that in adjudicating a motion for class certification, the court accepts the allegations of the complaint as true so long as those allegations are sufficiently specific to permit an informed assessment as to whether the requirements of Rule 23 have been satisfied. Ellis v. Costco Wholesale Corp., 240 F.R.D. 627, 635 (N.D. Cal. 2007) (citing Blackie v. Barrack, 524 F.2d 891, 901 n.17 (9th Cir. 1975)). In so doing, it refused to conduct any review of the merits in determining whether the requirements of Rule 23 were met, misapplying Eisen and relying on this Court s now-rejected holding in Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975). Because the district court s rationale cannot be squared with Dukes, the ruling below must be reversed. Class certification also now is plainly improper because Plaintiffs cannot satisfy the minimum requirements of Rule 23 under the standards expressed by the Supreme Court in Dukes. As in Dukes, Plaintiffs argue that Costco s use of subjective decision-making in promotion decisions was sufficient to satisfy Rule 5

11 6 23(a) s commonality requirement. Id. at 639. The Supreme Court in Dukes soundly rejected that contention, however, concluding that a practice that provides local supervisors with discretion to make pay and promotion decisions simply is not the type of uniform policy required to establish commonality under Rule 23(a). 180 L. Ed. 2d at Furthermore, Dukes confirms that certification under Rule 23(b)(2) is improper where, as here, money damages predominate over injunctive relief. There, the Supreme Court held unequivocally, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class.... [I]t does not authorize class certification when each class member would be entitled to an individualized award of monetary damages. 180 L. Ed. 2d at 396. Because Plaintiffs demand for substantial monetary relief will require individualized awards inconsistent with the classwide remedies contemplated by Rule 23(b)(2), the district court s certification of a 23(b)(2) class in this case cannot be reconciled with Dukes and therefore must be reversed. Faithful adherence to the rigorous class certification standards reaffirmed in Dukes is critical to efficient and expeditious resolution of Title VII litigation. For large employers that routinely make and implement millions of employment decisions each year, proper application of Dukes by the lower courts is crucial in order to discourage efforts to target them with the sort of broad-based class action 6

12 7 rejected in that case, as well as to avoid renewed confusion among the lower courts evaluating motions for Rule 23 class certification. ARGUMENT I. THE CLASS CERTIFICATION DECISION BELOW IMPERMISSIBLY CONFLICTS, AND CANNOT BE RECONCILED, WITH THE U.S. SUPREME COURT S RULING IN WAL-MART v. DUKES To maintain a class action alleging violations of Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. 2000e et seq., as amended, plaintiffs must satisfy all four requirements of Rule 23(a), and at least one of the requirements of Rule 23(b), of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 23. Rule 23(a) permits class certification only when: (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. Fed. R. Civ. P. 23(a). Rule 23(b)(2), in turn, allows certification only when the defendant has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed. R. Civ. P. 23(b)(2). In Wal-Mart Stores, Inc. v. Dukes, the Supreme Court considered whether a group of current and former employees could pursue their Title VII sex 7

13 8 discrimination claims as a Rule 23 class. 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). They asserted that the company s alleged subjective decision making in a corporate culture of uniformity and gender stereotyping, Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571, 613 (9th Cir. 2010), established common questions of fact that are typical of the claims or defenses of the class as a whole, thus satisfying Rule 23. Both the district court and this Court, sitting en banc, agreed, thus allowing the plaintiffs to pursue their claim as a class. The Supreme Court reversed, concluding that the plaintiffs failed to satisfy either Rule 23(b)(2) or the threshold requirements of Rule 23(a). In doing so, it reaffirmed the principle established in General Telephone Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982), that trial courts are to conduct a rigorous analysis in determining whether plaintiffs evidence supports Rule 23 class certification, which sometimes will require the court to probe behind the pleadings before coming to rest on the certification question. Wal-Mart, 180 L. Ed. 2d at 390 (quoting Falcon, 457 U.S. at 160). Frequently that rigorous analysis will entail some overlap with the merits of the plaintiff s underlying claim. That cannot be helped. Id. 8

14 9 A. The District Court s Misapplication Of Blackie And Unwavering Reliance On Eisen To Justify Its No Merits Rule 23 Analysis Warrants Immediate Reversal In Light Of Dukes While acknowledging that [t]he party seeking class certification bears the burden of establishing that the requirements of Rules 23(a) and 23(b) have been met, Ellis v. Costco Wholesale Corp., 240 F.R.D 627, 635 (N.D. Cal. 2007), the district court below nevertheless concluded, relying on an oft-quoted footnote from this Court s decision in Blackie v. Barrack, 524 F.2d 891 (9th Cir. 1975), that: [I]n adjudicating a motion for class certification, the court accepts the allegations of the complaint as true so long as those allegations are sufficiently specific to permit an informed assessment as to whether the requirements of Rule 23 have been satisfied. 240 F.R.D. at 635 (citing Blackie, 524 F.2d at 901 n.17). According to the district court, [t]he merits of the class members substantive claims are generally irrelevant to this inquiry. Id. (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974)). The en banc Ninth Circuit in Dukes rejected that approach, observing: In the less typical instances in which district courts in this circuit have been led astray, a common reason seems to have been a misreading of our statement in footnote 17 of Blackie v. Barrack F.3d at 589. It went on to conclude, a small number of district courts in this circuit have misunderstood Blackie and relied on Eisen in the way that the Second Circuit [in IPO] has cautioned against, and that we now reject.... Id. at

15 10 In Dukes, the Supreme Court reconciled Falcon s demand for a rigorous analysis with Eisen s caution against merits-based inquiries, pointing out that in Eisen, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that... ), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. 180 L. Ed. 2d at 391. It clarified, [t]o the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted by our other cases. Id. The Supreme Court also dismissed the notion that Rule 23 expresses something akin to a pleading standard: Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. We recognized in Falcon that sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question, and that certification is proper only if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. Id. at 390 (citations omitted). The district court below ignored Falcon in its discussion of the legal standard for granting class certification, choosing instead to rely on this Court s now-disavowed, pre-falcon precedent (as well as Eisen s purest dictum ) to conclude that it must accept the allegations in Plaintiffs complaint as true as long 10

16 11 as it sets forth the basis of their claims with specificity and clarity, Ellis, 240 F.R.D at 635 a premise plainly rejected by the Supreme Court in Dukes. Because the path it took in certifying the class now is expressly foreclosed by Dukes, the district court s ruling below should be reversed and the class decertified on that ground alone. B. Plaintiffs Cannot Establish Rule 23(a) Commonality Applying The Standards Expressed By The Supreme Court In Dukes The district court s error notwithstanding, class certification nevertheless is improper because Plaintiffs cannot satisfy the threshold requirements of Rule 23(a) as interpreted by the Supreme Court in Dukes. The plaintiffs in Dukes claimed that Wal-Mart maintained company-wide practices and policies that were applied subjectively, were prone to gender stereotyping, and which resulted in unlawful sex discrimination. They sought to maintain their claims as a Rule 23 class, in support of which they offered, and the district court credited, statistical evidence of gender-based disparities, expert testimony, and anecdotal evidence consisting of statements from a relative handful of individual class members. Here, Plaintiffs similarly attempt to show that Costco s subjective practices resulted in discrimination common to the class as a whole through a combination of statistical and anecdotal evidence, as well as expert testimony. Ellis, 240 F.R.D. at 638. Their chief contention is that Costco allowed individual managers to use 11

17 12 subjective criteria in making promotion decisions, thereby providing them with the means by which to discriminate against women because of sex. See Ellis, 240 F.R.D. at Like the plaintiffs in Dukes, they argue that Costco s use of subjective decision-making in promotion decisions was sufficient to satisfy Rule 23(a) s commonality requirement. Id. at 639. The Supreme Court in Dukes soundly rejected that very assertion, however, observing that a policy that gives local supervisors discretion to make pay and promotion decisions not only is antithetical to the type of uniform policy required to establish commonality under Rule 23(a), but also is a very common and presumptively reasonable way of doing business one that we have said should itself raise no inference of discriminatory conduct. 180 L. Ed. 2d at As Justice Scalia, writing for the Court, explained: Commonality requires the plaintiff to demonstrate that the class members have suffered the same injury. This does not mean merely that they have all suffered a violation of the same provision of law. Title VII, for example, can be violated in many ways by intentional discrimination, or by hiring and promotion criteria that result in disparate impact, and by the use of these practices on the part of many different superiors in a single company. Quite obviously, the mere claim by employees of the same company that they have suffered a Title VII injury, or even a disparate impact Title VII injury, gives no cause to believe that all their claims can productively be litigated at once. Their claims must depend upon a common contention for example, the assertion of discriminatory bias on the part of the same supervisor. That common contention, moreover, must be of such a nature that it is capable of classwide resolution which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. 12

18 13 Id. at (citation omitted). Here, the district court concluded that Plaintiffs satisfied Rule 23(a) s commonality requirement by asserting that Costco maintained a company-wide policy of subjective decision-making that perpetuated a corporate culture susceptible to gender stereotyping. Because Plaintiffs assertion, on its face, fails to establish a common contention of such a nature that it is capable of classwide resolution as required by Dukes, id. at 389, Rule 23(a) class certification plainly was improper. Therefore, the district court s ruling should be reversed and the class decertified. C. Dukes Confirms That Rule 23(b)(2) Class Certification Is Improper Where, As Here, Money Damages Predominate Over Injunctive Relief Relying on this Court s prior holding in Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003), the district court below found that Plaintiffs claim for substantial monetary damages is incidental to the injunctive relief sought and therefore certifiable as a Rule 23(b)(2) class. The en banc Ninth Circuit has since expressly disavowed Molski, however, concluding that [t]o the extent Molski required the district court to inquire only into the intent of the plaintiffs and focus primarily on determining whether reasonable plaintiffs would bring suit to obtain injunctive or declaratory relief in the absence of a possible monetary recovery, it is overruled. 603 F.3d at 617 (citation omitted). 13

19 14 Moreover, the Supreme Court in Dukes held that claims for individualized relief like those sought by Plaintiffs, including back pay, are not suitable for class treatment under Rule 23(b)(2): Our opinion in Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 121 (1994) (per curiam), expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief. 180 L. Ed. 2d at 396. The Court explained: The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certification when each class member would be entitled to an individualized award of monetary damages.that interpretation accords with the history of the Rule. Id. (citation omitted). Here, Plaintiffs are seeking substantial monetary relief in the form of lost wages, as well as compensatory and punitive damages. Individualized findings will be required not only to determine which class members were harmed, but also to assess who ultimately is entitled to relief which itself will depend on a number of factors unique to each individual s particular circumstances. 14

20 15 In addition, while an order requiring modification or elimination of an offending company policy, for instance, might serve as adequate relief for those class members still actually employed by Costco, it certainly would not remedy the harm allegedly suffered by those who since have moved on. Because the Plaintiffs claim is not suitable for the type of classwide relief to which certification under Rule 23(b)(2) is limited, the district court s ruling below cannot stand. II. FAITHFUL ADHERENCE TO THE RIGOROUS CLASS CERTIFICATION STANDARDS REAFFIRMED IN DUKES IS CRITICAL TO EFFICIENT AND EXPEDITIOUS RESOLUTION OF TITLE VII LITIGATION Dukes counsels in favor of indeed, demands a level of rigor and discipline in Rule 23 class certification determinations that was plainly absent from the district court s analysis below. For large employers that, as Justice Scalia observed in Dukes, routinely make and implement millions of employment decisions each year, including hires, promotions, transfers, disciplinary actions, terminations, and other employment actions, proper application of Dukes by the lower courts is crucial in order to discourage efforts to target them with the sort of broad-based class action rejected in that case. Departure from the clear standards articulated by the Court in Dukes also likely would lead to renewed confusion among the lower courts evaluating motions 15

21 16 for Rule 23 class certification, thus undermining uniform application of the law and profoundly disadvantaging the employers having to defend such actions. CONCLUSION Based on the foregoing, the district court ruling below should be reversed. Respectfully submitted, NORRIS, TYSSE, LAMPLEY & LAKIS, LLP By: s/ Rae T. Vann Rae T. Vann 1501 M Street, N.W. Suite 400 Washington, DC (202) rvann@ntll.com Attorneys for Amicus Curiae Equal Employment Advisory Council 16

22 Form 6. Certificate of Compliance With Type-Volume Limitation, Typeface Requirements, and Type Style Requirements 1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because: this brief contains 3,684 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Microsoft Office Word 2003, Times New Roman 14 point type. Signature: s/ Rae T. Vann Rae T. Vann Attorney for Equal Employment Advisory Council, Amicus Curiae Date: July 25, 2011

23 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on July 25, Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system. I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within three calendar days to the following non-cm/ecf participants: Roberta L. Steele David B. Ross GOLDSTEIN DEMCHAK BALLER SEYFARTH SHAW LLP BORGEN & DARDARIAN Ste Suite Ave of the Americas 300 Lakeside Dr. New York, NY Oakland, CA Gerald L. Maatman Jr. Thomas J. Wybenga Seyfarth Shaw, LLP SEYFARTH SHAW LLP Ste Lake Dr. 131 South Dearborn Street Issaquah, WA Chicago, IL Laura C. Fentonmiller Allan H. Weitzman CONSTANTINE CANNON LLP PROSKAUER ROSE LLP Suite 1000 Suite 340 West 1627 Eye Street, N.W Glades Road Washington, DC Boca Raton, FL s/ Rae T. Vann Rae T. Vann