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Plaintiffs' Motion for Class Certification and for Bifurcation in Gratz
C. Alternatively, Plaintiffs' Claims Qualify for Certification Under Rule
23(b)(3)
The requirements for certification under Rule 23(b)(3) are met because the questions of law or fact common to the members of the class predominate over many questions affecting only individual members and because the class action is superior to other available methods for fairly and efficiently adjudicating this case. The primary questions common to the class are whether defendants' discriminated on the bases of race and whether that discrimination violated the Fourteenth Amendment and 42 U.S.C. �� 1981, 1983, and 2000d, et seq.. These questions are so central to the case that they predominate over any individual issues among the members of the class. Under Rule 23(b)(3), it is sufficient that the defendant engaged in a "common course of
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conduct" against the plaintiffs' class, even if the plaintiffs were injured at different times and in different ways. 7A WRIGHT & MILLER, Federal Practice and Procedure, � 1778 ("if the defendant's activities present a 'common course of conduct' so that the issue of statutory liability is common to the class, the fact that damages or...reliance may vary for each party does not require that the class action be terminated as being beyond the scope of Rule 23(b)(3)"). Plaintiffs' complaint alleges such a course of conduct in the form of an ongoing policy of illegal racial discrimination by defendants throughout the class period.
Rule 23(b)(3) does not require that these common questions be dispositive of the entire case, and courts "generally find...predominance requirement satisfied when the issue of liability is common to the class." In re Consumers Power Company Securities Litigation, 105 F.R.D. 583, 607 (E.D. Mich. 1985). Nor do differences in individual damages prevent certification under Rule 23(b)(3). Id. ("When important liability issues are present, the existence of secondary, individual issues should no defeat class certification"); Markham v. White, 171 F.R.D. 217, 224 (N.D. Ill. 1997) (claim that training seminars for female police officers were conducted in a sexually harassing manner certified under (b)(3) despite the likelihood "that some variances will emerge among the class members' claims, most probably as to their respective damages...But that prospect does not upset the present predominance determination"). See generally 7A WRIGHT, MILLER & KANE, Federal Practice and Procedure, � 1778 (2d ed. 1986) ("[I]ssues that have been viewed as having overriding significance and therefore have been held to predominate [include] the existence of illegal discrimination"). 5 The Sixth Circuit, in Sterling v. Velsicol
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5 See also, e.g., Rossini v. Ogilvy & Mather, 798 F.2d 590, 598-99 (2d Cir. 1986); Bremiller v. Cleveland Psychiatric Ins., 898 F. Supp. 572 (N.D. Ohio 1995); Welch v. Bd. of Dir. of Wildwood Golf Club, 146 F.R.D. 131 (W.D. Pa. 1993).
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Chemical Corporation, 855 F.2d 1188 (6th Cir. 1988), made clear the appropriateness of Rule 23(b)(3) certification in cases involving common liability issues, even where individualized damages determinations number in the thousands:
...No matter how individualized the issue of damages may be, these issues may be reserved for individual treatment with the question of liability tried as a class action. Consequently, the mere fact that questions peculiar to each individual member of the class remain after the common questions of the defendant's liability have been resolved does not dictate the conclusion that a class action is impermissible.
Id. at 1197.
To justify maintenance of the action under Rule 23(b)(3), "it is enough that 'discrimination had been practiced across the board.'" Bremiller v. Cleveland Psychiatric Institute, 898 F. Supp. 572 (N.D. Ohio 1995), quoting Senter v. General Motors Corp., 532 F.2d 511, 524 (6th Cir.), cert denied, 429 U.S. 870 (1976). Here, class certification is especially appropriate because all plaintiffs' claims hinge on one dominant issue, the legality of the LSA's race-based admissions policy, and thus "[t]he claims of all members of the class can succeed only if a [constitutional or statutory] violation is found, and if no such violation is found all claims will fail," Gerstle v. Continental Airlines, 50 F.R.D. 213, 219 (D. Colo. 1970).
For the same reason--the importance of overriding issues common to the entire class-a class action procedure is superior to hundreds of individual claimants repeatedly litigating the issue of whether the LSA's admissions policy violated the law.
D. Plaintiffs' Punitive Damages Claims Qualify for Class Certification
Plaintiffs' Complaint includes a claim for punitive damages, one of the remedies available in federal civil rights cases. See, e.g., Smith v. Wade, 461 U.S. 30, 35-36 (1983); Vetters v.
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Berry, 575 F.2d 90, 96 (6th Cir. 1978); 42 U.S.C. �� 1981, 1983. Because the issues related to the award of punitive damages-defendants' class-wide conduct of race discrimination-are the same for all class members, class treatment of the punitive damages claims is appropriate.
The Sixth Circuit has previously approved the procedure for a class-wide award of punitive damages based on a single adjudication of the issue for all of the class members. In Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988), plaintiffs brought a class action against a chemical corporation for personal injuries and property damage sustained by residents who lived near the company's waste burial site in Tennessee. The district court certified a Rule 23(b)(3) class and eventually entered judgment against the chemical company, together with an award of compensatory damages to the five representative class members. The district court also made a class-wide award of punitive damages before determining compensatory damages for remaining class members. The Sixth Circuit specifically approved this procedure:
...Lastly, the district court need not defer its award of punitive damages prior to determining compensatory damages for the entire class of 128 individuals. So long as the court determines the defendant's liability and awards representative class members compensatory damages, the district court may in its discretion award punitive damages to the class as a whole at that time.
855 F.2d at 1217. 6
In this case, a finding by the Court that defendants' admissions policies or practices violate plaintiffs' constitutional rights means that plaintiffs and others similarly situated are entitled to an award of at least nominal damages, see, e.g., Carey v. Piphus, 435 U.S. 247, 266 (1978), which may support an award of punitive damages in an appropriate case, see, e.g., Beauford v. Sisters of
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6 The Sixth Circuit held that the district court's determination of #7.5 million in punitive damages was based, in part, on improper substantive grounds and remanded for recomputation. 855 F.2d at 1217.
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Mercy-Province of Detroit, Inc., 816 F.2d 1104, 1108 (6th Cir. 1987), cert. denied, 484 U.S. 913 (1987). Because punitive damages are awarded to punish the defendant for its wrongful conduct, it would be proper to make a one-time, class-wide award of punitive damages without the necessity of determining the amount of actual compensatory damages to which any individual class member may be entitled.
A class action certified under Rule 23(b)(2) may include claims for monetary relief where, as here, the action is predominantly one for declaratory and injunctive relief. See, e.g., Robertson v. National Basketball Ass'n., 556 F.2d 682, 685 (2nd Cir. 1977); In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703, 710-11 (E.D. Mich. 1985); Edmondson V. Simon, 86 F.R.D. 375, 383 (N.D. Ill 1980); Day v. NLO, 851 F. Supp. 869, 886-87 (S.D. Ohio 1994); 1 NEWBERG � 4.14; WRIGHT & MILLER � 1775. Consequently, the punitive damages class in this case may be certified under any of Rules 23(b)(1), 23(b)(2), or 23(b)(3). 7 See also, e.g., In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718, 728 (E.D.N.Y. 1983) (certifying Rule 23(b)(1) punitive damages class in claims arising from exposure to Agent Orange), mandamus denied sub nom In re Diamond Shamrock Chemicals Co., 725 F.2d 858 (2nd Cir. 1984), cert denied, 465 U.S. 1067 (1984); Day v. NLO, 851 F. Supp. 869, 887 (S.D. Ohio 1994) (certifying Rule 23(b)(2) punitive damages class in claims arising out of exposure to radiation).
II. BIFURCATION OF LIABILITY AND DAMAGES TRIALS IS
APPROPRIATE
Plaintiffs have also moved, pursuant to Federal Rule of Civil Procedure 42(b), for an order bifurcating the liability and damages phases of the case following certification of the class. The
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7 The Court may also reserve for later determination the issue of which subpart os Rule 23(b) is most appropriate for class certification of the punitive damages portion of the case. See, e.g., Morgan v. United Parcel Service, 169 F.R.D. 349 (E.D. Mo. 1996); Presseisen v. Swarthmore College, 71 F.R.D. 34, 47 (E.D. Pa. 1976); 1 NEWBERG �� 4.14, 4.17.
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first phase of the trial would consider liability issues common to the Class--whether defendants' admissions policies and practices violate the equal protection guarantees of the Constitution and federal civil rights statutes; and whether defendants should be enjoined from use of those policies and practices in the future. The second phase would be a jury trial determination of the amount of compensatory damages to be awarded to plaintiffs. See, e.g., Smith v. University of Washington Law School, No. 97-335Z, 1998 WL 199286 (W.D. Wash. April 22, 1998) (bifurcation of liability and damages and trials).
Rule 23(c)(4) states specifically that "[w]hen appropriate...an action may be brought or maintained as a class action with respect to particular issues." Bifurcation is a commonly used case management technique in cases where there are both common class issues and individualized issues, such as for damages. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 343 n.24 (1977); Bailey v. Great Lakes Canning, Inc., 908 F.2d 38, 39 (6th Cir. 1990); EEOC v. Monarch Machine Tool Co., 737 F.2d 1444, 1449 (6th Cir. 1980); Little Caesar Enterprises, Inc. v. Smith, 172 F.R.D. 236, 245 n. 4(E.D. Mich. 1997) (where there are differences in damages between class members, "the question of damages can be severed from that of liability and tried on an individual basis") (quoting 7B WRIGHT & MILLER � 1792); 8 McCoy v. Salem Mortgage Co., 74 F.R.D. 8, 13 (E.D. Mich. 1976). This case, with the large number of class members who have suffered common harm in the violation of their constitutional rights, but who may have varying claims for compensatory damages, presents the paradigm for bifurcation.
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8 Such a bifurcated procedure is also compatible with plaintiffs' request, pursuant to Rule 38, for a jury trial as to damages only. Liability issues can be determined in a bench trial before this Court, followed by jury trial determinations on the amount of any class-wide punitive damages and for individual damages.
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CONCLUSION
For all the foregoing reasons, Plaintiffs respectfully request the Court to grant the motion for class certification pursuant to Rule 23(b)(1) & (2), or, alternatively, under Rule 23(b)(3); to deny defendants' motion on class certification; and to grant plaintiffs' motion bifurcating liability and damages trials.
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