Civ
Pro 2 Notes
Rule
23 sets up two different categories: the prerequisites under Rule 23(a), (1) numerosity, (2) commonality, (3) typicality, and (4) representativeness, and maintaining your class status under
Rule 23(b), (1) inconsistent adjudication classes, (2) injunction classes, or (3)
efficiency classes. If you come under
the Rule 23(b)(3) category, there are extra
requirements that are restrictive and expensive.
Communities for Equity v.
This
is a pretty good illustration of how most courts deal with Rule 23(a). This case churns through each of the categories
of the rule to see if the categories are met.
That’s what the case suggests, but the notes suggest that there is much
more of a “peek” at the merits where you decide whether you want the case to go
ahead. This is especially true with the
issues of typicality and representativeness. What’s at issue in this case? There’s a Title IX claim that the Michigan
High School Athletic Association discriminated against female athletes. The Athletic Association fails to sanction certain
girls’ sports, makes girls play non-traditional, shorter seasons, on inferior
dates, in inferior facilities, and with inadequate resources. They have a bunch of complaints.
They
try to certify a class of “all present and future female student athletes
enrolled in member high schools who participate in interscholastic athletics or
who are deterred from participating in interscholastic athletics” due to discrimination. This is typical of the way a class will be
described, which is by way of characteristics. This class is quite sweeping. It includes present and future female
students. It includes those who
participated and those who didn’t participate because of the discrimination. The class is limited to people who were
harmed by the defendants’ conduct.
The
court must decide whether this lawsuit will meet the class characteristics. This is the sort of thing we would want a
class for because it would become moot at the time an individual female student
plaintiff graduates. So we have an
organization trying to deal with the class issues on behalf of all of these
female students.
There
is no problem with numerosity here. There are lots and lots of present and future
students. There are a bunch of common
issues of law or fact. Though the
different types of complaints might apply differently to different individuals,
there must be at least one issue common to all the class members. What about typicality? No one is probably going to suffer all the
harms. That’s why they let a community
group go forward as a collective representative. But it is likely they will later add
specific, named students who suffered some of the specific harms listed. Also, some of the class members might have
competing interests. The remedy that
might be crafted might be good for some class members and not others. How do we solve the problem? You can divide the class into subclasses
under Rule 23(c)(4)(B). You could have subclasses based on people who
fall into different subcategories. How
about representativeness? You wouldn’t be part of the class if you’re
not adversely affected. That’s why you
include that language: to avoid representativeness
problems. Much care goes into how you
define the group! You can define away
all the legal problems if you’re careful.
There
is also the MHSAA. They’ll represent the
high schools’ interests directly. They
will be protecting the status quo and all of those students who are happy with
the way things are now. Wright says that
as long as there’s a representative for the status quo and one for the people
who want change, you can maintain a class action.
So
the Rule 23(a) criteria have been met.
This is a Rule 23(b)(2) class because they’re
seeking injunctive relief. Let’s say
that the girls lose on the merits. Let’s
say a new female student moves to
Heaven v.
Trust Company Bank
What’s
happening? The plaintiff leased a car
from Sun Trust and sued later saying that they didn’t comply with disclosure
requirements. Heaven sued for statutory damages
but no actual damages. She wanted to
certify a 23(b)(3) class. The trust company counterclaims, saying that individual
class members failed to pay their lease.
This is similar to Plant v. Blazer
Financial Services, Inc. in that if there are compulsory counterclaims, the
court says you must deny the class certification of the plaintiffs. Is this court bound by Plant? Yes, because the Eleventh
Circuit used to be part of the Fifth Circuit!
So the court must boot the case for failing to meet the requirement in
Rule 23(b)(3) that this class action is superior to
other ways to adjudicate the dispute.
This could go forward as a
class, but it can’t be maintained under Rule 23(b)(3). But the Eleventh Circuit adds its own caveat,
which is that they might have done it differently, but the district court didn’t
abuse its discretion in booting the whole thing.
Notice
that the bank wouldn’t really sue the individual lessees because it wouldn’t be
worthwhile to get judgments. They just
brought up this counterclaim as a defensive measure. Even if the class had gone forward, the class
plaintiffs probably would have wanted to opt-out anyway!
The
Rules now provide for interlocutory appeals for the grant and denial of class
certification under Rule 23(f). If the court
is wrong here, the plaintiffs have the right to get a look at this. The suit might continue with just the named plaintiffs
and not the class. Most states are
adopting rules like this.