The opinion of the court was delivered by: Sand, J.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
H. CRISTINA CHEN-OSTER, LISA PARISI, and SHANNA ORLICH, Plaintiffs, v. GOLDMAN, SACHS & CO. and THE GOLDMAN SACHS GROUP, INC., Defendants.
Defendants Goldman, Sachs & Co. and The Goldman Sachs Group, Inc. (collectively, "Goldman") object to Magistrate Judge James C. Francis's January 19, 2012, Report and Recommendation ("R&R") denying Defendants' motion to strike all class allegations as well as their motion for partial summary judgment.
For the reasons that follow, Judge Francis's R&R is affirmed in part and reversed in part.
The Court assumes familiarity with the facts of the case, which are laid out in detail in the R&R. See R&R (Dkt. No. 134) 2--8.
A district court reviewing a magistrate judge's report and recommendation "may accept, reject, or modify [it] in whole or in part." 28 U.S.C. § 636(b)(1)(C). The court reviews de novo any portions of a report and recommendation to which a party has objected; all else is reviewed for clear error. Gary Friedrich Enters., LLC v. Marvel Enters., 713 F. Supp. 2d 215, 219 (S.D.N.Y. 2010).
a. Rule 23(a)(2) Commonality Goldman moves the Court to strike Plaintiffs' class allegations on the grounds that Plaintiffs cannot, as a matter of law, satisfy Federal Rule of Civil Procedure 23(a)
(2), which requires that plaintiffs seeking class certification establish that "there are questions of law or fact common to the class." Defs.' Objections (Dkt. No. 135) 6.
In Wal-Mart Stores, Inc. v. Dukes, the United States Supreme Court ("Supreme Court") held that, in order to satisfy commonality, a plaintiff's claims "must depend on a common contention...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 of the claims in one stroke." 131 S. Ct. 2541, 2551 (2011). As Goldman construes them, Plaintiffs' class allegations are based on the "assertion that Goldman Sachs permits individual managers unbridled freedom to make employment decisions regarding their subordinates." Defs.' Objections 2. Dukes, Defendants argue, foreclosed certification based on managerial discretion of this sort because such discretion is "just the opposite of a uniform employment practice that would provide the commonality needed for a class action." Dukes, 131 S. Ct. at 2554.
This argument is unpersuasive for two reasons. First, Goldman's motion is procedurally premature; second, Dukes is distinguishable on the facts. Pls.' Resp. to Defs.' Objections (Docket No. 140) 2--9. Judge Francis denied Goldman's motion on both grounds.
1. Procedure "Motions to strike are generally looked upon with disfavor [and] a motion to strike class allegations...is even more disfavored because it requires a reviewing court to preemptively terminate the class aspects of...litigation, solely on the basis of what is alleged in the complaint and before plaintiffs are permitted to complete the discovery to which they would otherwise be entitled on questions relevant to class certification." Chenensky v. New York Life Ins. Co., No. 07 Civ. 11504, 2011 U.S. Dist. LEXIS 48199, at *3--4 (S.D.N.Y. Apr. 27, 2011) (citations and internal quotation marks omitted). See also Barghout v. Bayer Healthcare Pharms., No. 11 Civ. 1576, 2012 U.S. Dist. LEXIS ...