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Obtaining and Challenging Class Certification in Employment
Discrimination Pattern and Practice Cases |
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| April 1998 |
| A district court's decision regarding whether or not to certify a class is a watershed event in an employment discrimination class action. If the class is certified, the employer must take the case seriously. If class certification is denied, the employer will be able to resolve the case by settling with the individual plaintiff or plaintiffs, likely without having to institute any meaningful changes in its employment practices, although the employer will have no protection against the possibility that other plaintiffs may file similar suits. |
| District court judges have tremendous discretion when deciding whether or not to certify a case as a class action. As things stand now, there is no interlocutory review of class certification decisions. See Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978).2 As a result, unless a court of appeals takes the unusual step of reviewing a class certification decision on a writ,3 the parties will have to proceed through trial and final judgment before there can be review of a class certification decision. Class certification is thus often the major turning point in employment class action litigation. |
| A. Legal Standards for Class Certification |
| As with other federal class actions, Federal Rule of Civil Procedure 23 provides the legal standard for class certification in employment discrimination class actions. As an initial matter, plaintiffs must establish that the four prerequisites of Rule 23(a) are satisfied: (1) that the class is so numerous that joinder of all class members is impracticable; (2) that there are common questions of law and fact; (3) that the representative parties' claims and defenses are typical of the class claims and defenses; and (4) that the representative parties will fairly and adequately protect the class' interest. Fed. R. Civ. P. 23(a). The party moving for class certification bears the burden of showing that the Rule 23(a) requirements are satisfied. General Telephone Company of the Southwest v. Falcon, 457 U.S. 147, 156 (1982). |
| In addition to demonstrating that the Rule 23(a) requirements are met, the plaintiffs must also establish that the suit satisfies one or more of the standards of Rule 23(b): (1) that there is a risk of substantial prejudice from separate actions; (2) that declaratory or injunctive relief benefitting the class as a whole would be appropriate; or (3) that common questions of law or fact predominate and the class is superior to other available methods of adjudication. Fed. R. Civ. 23(b). Traditionally, employment discrimination class actions have been certified under Rule 23(b)(2). See, e.g., Probe v. State Teachers' Retirement System, 780 F.2d 776, 780 (9th Cir.), cert. denied, 476 U.S. 1170 (1986); Barefield v. Chevron, 48 F.E.P. Cases (BNA) 907, 1988 U.S. Dist. LEXIS 15816 (N.D. Cal. 1988); Shores v. Publix Super Markets, Inc., 69 E.P.D. Cases (CCH) 44,477, 1996 U.S. Dist. LEXIS 3381 (M.D. Fla. 1996). |
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| Notes |
| 1 Jonathan D. Selbin is a partner with Lieff Cabraser Heimann & Bernstein, LLP of San Francisco, California. |
| 2 The Federal Rules Committee currently is considering a proposal that would make class certification decisions subject to interlocutory appeal. |
| 3 See, e.g., Jackson v. Motel 6, 130 F.3d 999 (11th Cir. 1997). |
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LIEFF
CABRASER HEIMANN & BERNSTEIN, LLP
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| Notice: Lieff
Cabraser attorneys provide legal advice and practice law for clients in
federal district courts throughout the United States and in state courts
where we are licensed to practice. In states in which our lawyers are not
licensed to practice, we have affiliations with local attorneys who serve
as co-counsel with our firm. Please read our disclaimer. |
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Copyright © 2008 Lieff Cabraser Heimann & Bernstein,
LLP
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