The Seventh Circuit Court of Appeals has ruled that, consistent with Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), a class in which monetary as well as declaratory or injunctive relief is sought may be certified under Federal Rule of Civil Procedure 23(b)(2) as long as the monetary relief is incidental. Johnson v. Meriter Health Servs. Employee Retirement Plan, No. 12-2216 (7th Cir., decided December 4, 2012). The issue arose in a case involving a challenge to an employer’s pension plan under the Employee Retirement Income Security Act.
According to the court, “all that the class is seeking, which is to say all that the subclasses are seeking, at least initially, is a reformation of the Meriter pension plan—a declaration of the rights that the plan confers and an injunction ordering Meriter to conform the text of the plan to the declaration. If once that is done the award of monetary relief will just be a matter of laying each class member’s pensionrelated employment records alongside the text of the reformed plan and computing the employee’s entitlement by subtracting the benefit already credited  to him from the benefit to which the reformed plan document entitles him, the monetary relief will truly be merely ‘incidental’ to the declaratory and (if necessary) injunctive relief (necessary only if Meriter ignores the declaration).”
The court notes that the Ninth Circuit has expressed doubt that “Wal-Mart left intact the authority to provide purely incidental monetary relief in a (b)(2) class action, as we think it did.”