## Facts

- The EEOC sued Bemis Company, Inc. under Title VII alleging racial harassment of five named Black employees and other Black employees, seeking compensatory and punitive damages and other relief.
- Bemis answered that the EEOC could not proceed on behalf of a group without satisfying Federal Rule of Civil Procedure 23’s class-certification requirements.
- The EEOC moved to strike that defense, citing Supreme Court precedent that EEOC group enforcement suits are not governed by Rule 23.
- The district court granted the motion to strike Bemis’s Rule 23 defense.
- Bemis petitioned for discretionary interlocutory review under Rule 23(f).

## Issues

1. Whether Rule 23(f) permits appellate review when the district court did not formally grant or deny class certification but struck a Rule 23-based defense.
2. Whether an EEOC Title VII enforcement action seeking relief for a group of employees must comply with Rule 23 class-certification requirements.

## Decision

- The court exercised jurisdiction under Rule 23(f) because the order striking the Rule 23 defense was the functional equivalent of a decision denying application of Rule 23 to the case.
- The court denied Bemis’s petition on the merits, holding that Rule 23 does not apply to EEOC enforcement actions brought on behalf of a group of employees.
- The court rejected Bemis’s attempts to distinguish Supreme Court precedent based on the type of discrimination claim (harassment), the absence of a company-wide pattern-or-practice allegation, and the request for compensatory and punitive damages.

## Legal Principles

- Rule 23(f) jurisdiction turns on the substance of the district court’s order; an order that functionally grants or denies class-action treatment is eligible for discretionary interlocutory review.
- EEOC enforcement suits under Title VII seeking relief for a group of employees are not subject to Rule 23’s certification requirements.
- The EEOC acts as a public law-enforcement agency vindicating statutory interests; it is not the equivalent of a private class representative and class counsel, making Rule 23’s private class-action framework inapplicable.

## Conclusion

The Seventh Circuit held that Rule 23(f) can reach orders that effectively decide whether Rule 23 governs a case, and it reaffirmed that EEOC Title VII enforcement actions on behalf of groups proceed without Rule 23 certification, even when the EEOC seeks compensatory and punitive damages for harassment.


In re Bemis Co., 279 F.3d 419 (7th Cir. 2002)