United States v. City of New York
276 F.R.D. 22
E.D.N.Y2011Background
- Court addresses Wal-Mart's impact on liability-phase class certification and noneconomic damages; denies decertification and summary judgment on noneconomic damages; certifies two subclasses for common remedial-phase issues under Rule 23(b)(3).
- Prior First Remedial Phase Order certified noneconomic loss and injunctive-relief subclasses (black non-hire and delayed-hire victims) and appointed subclass representatives; denied certification for a single make-whole relief class but allowed targeted subclass motions for certain relief issues.
- Wal-Mart was decided after the initial two-subclass briefing, prompting briefing on its effect on pending subclass certifications and damages issues.
- Liability-phase class certified under Rule 23(b)(2) for disparate impact and pattern-or-practice disparate treatment claims; due process considerations discussed for potential monetary relief.
- Court determines that compensatory noneconomic damages cannot be classwide proof; damages require individualized proof, and noneconomic loss claim is decertified as a classwide issue.
- Non-hire and delayed-hire victim subclasses are certified under Rule 23(b)(3) for common remedial-phase issues, and Rule 23(g) appointment of subclass counsel is ordered; Injunctive Relief Subclass rep expanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Wal-Mart’s effect on liability class | Plaintiffs argue Wal-Mart precludes b(2) treatment for monetary relief yet permits liability questions via b(2) and c(4). | City argues Wal-Mart requires decertification of the liability-phase class. | Liability-phase class remains certified under b(2); Wal-Mart does not compel decertification here. |
| Commonality and predominance for remedial damages | Subclasses seek classwide damages for noneconomic losses. | Damages are individualized; classwide proof is inappropriate post-Wal-Mart. | Common questions about noneconomic losses are not suitable for classwide proof; noneconomic damages are not certified as classwide. |
| Common issues for remedial-phase relief among non-hire/delayed-hire | Common issues exist for aggregate backpay, retroactive seniority, and priority hiring; classwide relief appropriate. | Too many individualized issues to certify for b(3). | certification under Rule 23(b)(3) for non-hire and delayed-hire remedial issues is granted; classwide issues retained; noneconomic subclass decertified. |
| Rule 23(c)(4) vehicle to certify issues | Robinson permits certifying particular issues under 23(c)(4) even if whole claim fails. | Wal-Mart undercuts broad (c)(4) use by missing commonality. | Robinson remains consistent; issue certification under 23(c)(4) is appropriate for liability-related issues. |
| Appointment of subclass counsel | Levy Ratner and CCR should represent non-hire and delayed-hire subclasses. | No conflict of interest; existing counsel adequate. | Levy Ratner appointed for non-hire; CCR appointed for delayed-hire; counsel found capable and conflict-free. |
Key Cases Cited
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (monetary claims not realizable under Rule 23(b)(2); individualized monetary relief belongs in 23(b)(3))
- Robinson v. Metro-North Commuter Railroad Co., 267 F.3d 147 (2d Cir. 2001) (adapts Rule 23(b)(2) for liability phases; allows c(4) certification for certain issues; due-process concerns for non-incidental monetary relief)
- In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) (class-wide proof of common issues; use of Rule 23(c)(4) to certify particular issues)
- Brown v. Kelly, 609 F.3d 467 (2d Cir. 2010) (predominance and superiority standards under Rule 23(b); guidance on 23(b)(3))
- Amchem Products, Inc. v. Windsor, 521 U.S. 591 (U.S. 1997) (framework for Rule 23(a) and (b); predominance and superiority considerations)