In Stockwell v. City and County of San Francisco, 749 F.3d 1107 (9th Cir. Apr. 24, 2014), the district court denied class certification of plaintiffs' age discrimination claim under FEHA, holding that the plaintiffs had not established the existence of a common question under Rule 23(a).
The Ninth Circuit reversed, in an opinion that contains an interesting discussion of Dukes, Amgen and Ellis. An excerpt from the analysis:
We conclude that the district court erred in denying class certification because of its legal error of evaluating merits questions, rather than focusing on whether the questions presented, whether meritorious or not, were common to the members of the putative class. By doing so, the district court made an error of law and relied on improper factors, thereby abusing its discretion.
Here, the officers have identified a single, well-enunciated, uniform policy that, allegedly, generated all the disparate impact of which they complain: the SFPD's decision to make investigative assignments using the Q–50 List instead of the Q–35 List. Each member of the putative class was on the Q–35 List. Each suffered the effects of its elimination, whatever those were.
The officers produced a statistical study purportedly showing a disparate impact. The district court, and the City, critiqued that study as inadequate for—among other reasons—failing to conduct a regression analysis to take account of alternative explanations, unrelated to age, for any statistical imbalance. But whatever the failings of the class's statistical analysis, they affect every class member's claims uniformly, just as the materiality issue in Amgen affected every class member uniformly. Each member of the putative class suffered the effects of eliminating the Q–35 List. If those effects amount to a disparate impact on account of age, it will be so for all class members or for none; their claims rise and fall together.
Id. at 1114-15 (footnote omitted). The panel remanded with directions to the district court to assess whether the other requirements of Rule 23 were satisfied.