A question of taste: touchstones for determining the certifiability of classwide claims for declaratory and injunctive relief under Rule 23 of the Federal Rules of Civil Procedure.

Author:Gordon, Randy D.
  1. Introduction II. An Overview of Class Action Procedure III. The Scope of Rule 23(b) Class Actions A. Are There More Appropriate or Efficient Ways to Litigate the Claims Alleged? 1. Should the Case Be a Derivative Action? 2. Is a Class Action Necessary? B. Is the Subject Matter of the Case Appropriate for Litigation at All? C. Is a Mandatory Class Appropriate on the Facts Alleged? 1. Is the Defendant's Conduct "Generally Applicable" to the Class? 2. There Are Conflicts Among the Class and, Therefore, It Fails for Lack of Cohesiveness 3. Is the Principal Dispute "Political"? 4. Is Injunctive or Declaratory Relief Appropriate? 5. Do Class Conflicts Preclude Certification? IV. Conclusion and Recommendations I. INTRODUCTION

    Almost since the birth of modern class action procedure in 1966, the device has attracted champions, who laud it as "one of the most socially useful remedies in history," and critics, who pillory it as "legalized blackmail." (1) As with most concepts that elicit such pointed disagreement, the truth lies somewhere in the middle. (2) At its best, a class action facilitates the vindication of small claims that otherwise would go unredressed merely because of their small size in relation to litigation costs. (3) But this move toward convenience and economy comes at a price: "the ability to aggregate large numbers of litigants tends to shift the focus from the client to the lawyer, from actual damages to attorneys' fees, and from actual litigation to settlement." (4) Perhaps nowhere is this tension more evident than in the discussions and decisions surrounding Rule 23(b)(2) of the Federal Rules of Civil Procedure, which provides for class actions seeking declaratory or injunctive relief. (5) This Article examines Rule 23(b)(2) class actions and the conflicts that arise when the relief sought is a matter of taste or belief--i.e., a matter that cannot be resolved with reference to neutral and objective criteria. (6) Along the way, we will consider the impact that the United States Supreme Court's most recent class-action decision, Wal-Mart Stores, Inc. v. Dukes (7) is likely to have on practice under Rule 23(b)(2). (8)


    Class actions gain their legitimacy from principles of judicial economy and efficiency. (9) These principles animate Rule 23, but--as with all abstract statements of purpose--disagreements abound over their application in concrete instances. (10) Nonetheless, Rule 23 is loaded with standards that provide at least some guidance. (11) Specifically, a court may not certify a class unless it finds that the prerequisites set out in Federal Rule of Civil Procedure 23(a) and at least one subsection of Rule 23(b) have been met. (12) The requirements of Rule 23(a) are commonly referred to as numerosity, commonality, typicality, and adequacy. (13) Rule 23(a) provides in pertinent part:

    * "the class [be] so numerous that joinder of all members is impracticable...." (14) Practicality of joinder depends on the size of the class, ease of identifying its members and determining their addresses, facility of making service on them if joined, and their geographic dispersion. (15) To satisfy Rule 23(a)(1), joinder of all parties need only be impractical, not impossible. (16)

    * "there [be] questions of law or fact common to the class." (17) Commonality is satisfied when at least one issue's resolution "will affect all or a significant number of the putative class members." (18) "For this reason, the threshold of 'commonality' is not high." (19)

    * "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class ...." (20) Although the inquiry into typicality is case-specific, its test often has more bite than that used to assess commonality. (21) The typicality requirement cannot be satisfied unless a plaintiff's claims arise out of the same event or course of conduct as the class members' claims and are based on the same legal theories. (22) At a minimum, then, proposed representatives must belong to the class and share the same interest and injury as the class members. (23)

    * "the representative parties will fairly and adequately protect the interests of the class." (24) Adequacy requires an inquiry into the zeal and competence of the representative's counsel and into the class representative's "willingness and ability" to actively participate in the litigation to ensure the interests of the absentee class members. (25) This entails two inquiries, one focused on the named plaintiff, one on counsel:

    * The primary issue in determining whether a named class representative is adequate is "whether any antagonism exists between the interests of the named plaintiffs and those of the remainder of the class." (26) The typicality and adequacy analyses for class certification overlap in this area. (27) Specifically, to the extent that the named plaintiff satisfies the typicality requirement by demonstrating that his claims are the same as those of the putative class, he takes some steps towards establishing a lack of conflict between himself and the putative class. (28) But, as we will see below, the analysis does not end here. (29)

    * The named plaintiff must also show that he has employed counsel able to prosecute the action vigorously to a successful conclusion. (30) Additionally, the plaintiff s counsel must have no conflicts with the interests of the class and must have the resources to devote to prosecution of the class action, so that the due process rights of the class members are protected. (31)

    Rule 23(b) provides in pertinent part:

    (B) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

    (1) prosecuting separate actions by or against individual class members would create a risk of

    (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

    (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

    (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

    (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy

    This Article focuses on the second of these three options: viz., class actions primarily seeking injunctive or declaratory relief and, even more tightly, on those actions in which the efficacy and desirability of the requested relief is a matter of debate amongst members of the putative class. (33)


    The textual simplicity of Rule 23(b)(2) belies its underlying complexity. Historically Rule 23(b)(2) was "designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a numerous and often unascertainable or amorphous class of persons...." (34) A paradigmatic case of this type might turn, for example, on a claim that a public facility unlawfully discriminated on the basis of race. (35) In such a case, it would likely be impossible to identify everyone who had actually suffered past injury, and the true aim of the suit would be to ensure future non-discriminatory access to the facility via injunctive or declaratory relief. (36) The language of the Rule is not, however, limited to claims of this sort, and much of the case law may be seen as (often conflicting) efforts to stake its bounds. (37)

    According to a leading commentator, two forces have contributed to (b)(2)'s popularity and expansion. (38) First, the possibility of (often substantial) attorney's fees awards has encouraged counsel to "act as private attorneys general in advancing important public policy." (39) Second, many courts enlarged the conceptual scope of (b)(2) classes by allowing classes to seek monetary relief that is "ancillary" to the claimed injunctive or declaratory relief. (40) For these and perhaps other reasons, (b)(2) class actions are now the most commonly brought. (41) But this expansion in scope has come at an associated theoretical cost: namely, that there are very few (if any) bright-line rules to guide courts and litigants as they assess the certifiability of many contested class actions. This Article examines this problem and develops a few standard tools for separating certifiable sheep from uncertifiable goats.

    As a threshold matter, we must pause to consider the United States Supreme Court's most recent pronouncements on the subject. (42) In Wal-Mart Stores, Inc. v. Dukes, the Court was called upon to consider whether a class action can be so large that it smothers typical notions of justice and due process of law. (43) Specifically, the case took up the question whether hundreds of thousands of female Wal-Mart employees could pursue a class-action discrimination suit. (44) As it stood after certification by the district court (and affirmance by the Ninth Circuit), the case was, according to the Supreme Court, "one of the most expansive class actions ever." (45) At the outset, the Court emphasized the unwieldy nature of the class by drawing attention to Wal-Mart' s different store types, scores of national and regional divisions, thousands of stores, and over one million employees spread over many job classifications. (46) As a technical matter of procedure, the Court examined the record facts and the theories of recovery advanced within the framework of Rule 23(a) and (b)(2). (47)

    The Court made two broad pronouncements...

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