Civ Pro 2 Notes 9/30/04


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. Michigan High School Athletic Assn.


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 Michigan later and sues independently.  They would be precluded from suing because the lawsuit bound all future students!  How can that be?  That student had no notice!  The law says that the student’s interests were already adequately represented by the parties in the lawsuit.  The future student is treated like a party, even without notice.


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.


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