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SECTION In the United States Court of Appeals For the Seventh Circuit No. GEORGE MCREYNOLDS, et al., on behalf of themselves and all others similarly situated, SECTION PlaintiffSECTION s-Appellants, v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., SECTION DefendantSECTION -Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C W. Gettleman, Judge. ARGUED JANUARY 13, FEBRUARY 24, 2012 Before POSNER, WOOD, and HAMILTON, Circuit Judges. POSNER, Circuit Judge. The plaintiffs have filed a class action suit that charges Merrill Lynch with racial discrimination in employment in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The plaintiffs ask that a class be certified for two purposes deciding a common issue, Fed. R. Civ. P. 2 No. the defendant has engaged and is engaging in practices that have a disparate impact (that is, a discriminatory effect, though it need not be intentional) on the members of the class, in violation of federal antidiscrimination law; and providing injunctive relief. Fed. R. Civ. P. They also want damages. But while they asked the district court to certify the class for purposes of seeking compensatory and punitive damages, see Rule at argument the plaintiffs’ lawyer said she wasn’t asking—not yet anyway—for such certification, though her opening brief had suggested that if we found that the district court had erred in refusing to certify for class treatment the disparate impact issue and injunctive relief, we should order the court to “consider on remand the extent to which damages issues also could benefit from class treatment, consistent with Allen v. International Truck & Engine Corp., 358 F.3d 469 (7th Cir. We defer that question to the end of our opinion. But we note here that without proof of intentional discrimination, which is not an element of a disparate impact claim, the plaintiffs cannot obtain damages, whether compensatory or punitive, but only equitable relief (which might however include backpay, and thus have a monetary dimension). 42 U.S.C. § Kolstad v. American Dental Association, 527 U.S. 526, 534 Section is explicit that damages cannot be awarded in respect of “an employment practice that is unlawful because of its disparate impact.” The district court denied certification, and the plaintiffs asked this court for leave to appeal the denial. A motions panel granted leave, but the defendant argues No. 3 that the panel erred—that the appeal is untimely. We begin with that question. Rule 23(f) of the civil rules permits appeals from orders granting or denying class certification despite the general policy (though one with many exceptions) against allowing interlocutory appeals in the federal court system. A denial of class certification often dooms the suit—the class members’ claims may be too slight to justify the expense of individual suits. Conversely, because of the astronomical damages potential of many class action suits, a grant of certification may place enormous pressure on the defendant to settle even if the suit has little merit. See, e.g., CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 723 (7th Cir. 2011). And because class actions are cumbersome and protracted, an early appellate decision on whether a suit can be maintained as a class action can speed the way to termination of the litigation by abandonment, summary judgment, or settlement. E.g., Blair v. Equifax Check Services, Inc., 181 F.3d 832, 834-35 (7th Cir. 1999); Newton v. Merrill Lynch, 259 F.3d 154, 162-65 (3d Cir. 2001). But Rule 23(f) requires that leave to appeal be sought from the court of appeals within 14 days of the entry of the order granting or denying certification. The district court denied the plaintiffs’ initial motion for class certification in August 2010. In July 2011 the plaintiffs filed an amended motion for class certification, which the district judge denied in September, and within 14 days 

Summary: 


Financial advisors who sued their employer, Merrill Lynch & Co., Inc., for race and gender discrimination in compensation did not state a plausible claim, so their complaint was dismissed pursuant to Title VII Section which allows employers to compensate employees differently on the basis of seniority, merit, or quality or quantity of production. The differences in compensation are only unlawful when they result from an intention to discriminate because of race, color, religion, sex or national origin.

