01-8038 In Re Bemis Company, Inc.,

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That is the holding of General Telephone and of course we have no authority to overrule decisions of the Supreme Court. The distinctions that Bemis urges are threadbare: General Telephone did not involve harassment, the EEOC here is not alleging an intentional company-wide pattern or practice of discrimination, and it is seeking compensatory and punitive damages rather than merely injunctive relief and back pay as in General Telephone (which was decided before common-law-type damages could be awarded in Title VII suits). We do not begin to see what these differences have to do with the reasoning of General Telephone. The main reason the Supreme Court thought Rule 23 inapplicable to EEOC class actions was that the EEOC is not an exact or even close counterpart to the class representative (and class lawyer) in a Rule 23 class action. The EEOC’s primary role is that of a law enforcement agency and it is merely a detail that it pays over any monetary relief obtained to the victims of the defendant’s violation rather than pocketing the money itself and putting them to the bother of suing separately. Having to persuade the district court that the class was numerous and homogeneous and that the EEOC’s interest was aligned with that of the class members, the sort of things that compliance with Rule 23 would entail, would interfere with the Commission’s exercise of its prosecutorial discretion.”

Petition denied.

Petition to Appeal from the United States District Court for the Southern District of Indiana, Tinder, J., Posner, J.