A class representative must fairly and adequately represent absent class members, a requirement the court must monitor throughout litigation because absentees' due process rights may be affected.
A named plaintiff sued on behalf of a putative class of female salaried employees alleging sex-based pay and job-grade discrimination, and lost on her individual claim at bench trial. The district court decertified the class, and the plaintiff appealed. The question is whether decertification was an abuse of discretion. The court applies the rule that all Rule 23(a) requirements must be met, with particular weight on whether the representative fairly and adequately represents the class, because absent members may be bound by a judgment. Finding inadequate representation supported by the record, the court affirms.
At page 7 Evaluating class representative adequacy under rule 23(a)(4)24 citing casesadequacy “requirement is particularly important because the due -9- No. 1-14-3733 process rights of absentee class members may be implicated if they are bound by a final judgment in a suit where they were inadequately represented by the named plaintiff
- Borum v. Brentwood Vill., LLC, No. 2016-1723 (D.D.C. Jan. 7, 2019).published(providing for decertification because of inadequate representation by class counsel rather than 22 by class representative)
- Byer Clinic & Chiropractic, Ltd. v. Kapraun, 2016 IL App (1st) 143733, 48 N.E.3d 244.published (adequacy “requirement is particularly important because the due -9- No. 1-14-3733 process rights of absentee class members may be implicated if they are bound by a final judgment in a suit where they were inadequately r…)
- United Food & Com. Workers Union v. Chesapeake Energy Corp., 281 F.R.D. 641 (W.D. Okla. 2012).published“Once the decision to certify a class has been made, the court remains under a continuing duty to monitor the adequacy of representation to ensure that class counsel provides zealous, competent representation through the proceedings and to…
- Donald J. Roberts IRA v. Phillip H. McNeill, Sr., No. W2010-01000-COA-R9-CV, 2011 WL 662648 (Tenn. Ct. App. Feb. 23, 2011).publishedCtr., Inc., 586 F.2d 457, 462 (5th Cir. 1978); Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir. 1986); In re General Motors Corp. Engine Interchange Litig., 594 F.2d 1106 , 1124 (7th Cir.), cert. denied, 444 U.S. 870 (1979); Burns v. U.S. R.R.
- Brown v. Colegio De Abogados De Puerto Rico, 613 F.3d 44 (1st Cir. 2010).publishedColegio next argues that the class representatives do not adequately represent the interests of the class as required by Rule 23(a)(4) and points to an October 18, 2008, resolution passed at a membership meeting opposing the present law su…
- Farmers Ins. Exch. v. Benzing, 206 P.3d 812 (Colo. 2009).published Co., 54 F.3d 1207, 1212 (5th Cir.1995); Key v. Gillette Co., 782 F.2d 5, 6-7 (1st Cir.1986); Briggs v. Anderson, 796 F.2d 1009, 1017 (8th Cir.1986); Samuel v. Univ. of Pittsburgh, 538 F.2d 991 , 996 n. 5 (3d Cir.1976).
- Carrier v. Am. Bankers, 2008 DNH 031 (D.N.H. 2008).publishedGillette C o ., 782 F.2d 5, 7 (1st Cir. 1986).
- Richards v. Fleetboston Fin. Corp., 238 F.R.D. 345 (D. Conn. 2006).publishedFurthermore, as part of its continuing duty to assure adequacy of representation in a class action suit, see Key v. Gillette Co., 782 F.2d 5, 7 (1 st Cir.1986), the court may always decide to modify or decertify the class in the future, th…
- Richards v. FleetBoston Fin. Corp., 235 F.R.D. 165 (D. Conn. 2006).publishedMoreover, as part of its continuing duty to assure adequacy of representation in a class action suit, see Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986), the court may always decide to modify or decertify the class in the future.
- Craft v. Philip Morris Companies, Inc., 190 S.W.3d 368 (Mo. Ct. App. 2005).publishedUnion Planters, 142 S.W.3d at 735 . “ ‘This requirement is particularly important because the due process rights of absentee class members may be implicated if they are bound by a final judgment in a suit where they were inadequately repre…
Show 13 more citing cases
- State ex rel. Union Planters Bank, N.A. v. Kendrick, 142 S.W.3d 729 (Mo. 2004).published “This requirement is particularly important because the due process rights of absentee class members may be implicated if they are bound by a final judgment in a suit where they were inadequately represented by the named plaintiff.” Key v.…
- Geer v. Cox, 216 F.R.D. 677 (D. Kan. 2003).publishedId. (citing Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986)). .
- Teresa Barney v. Holzer Clinic, Ltd., 110 F.3d 1207 (6th Cir. 1997).published See Fed.R.Civ.P. 23(c)(3) Advisory Committee Notes (1966 Amendment) ("The court ... in framing the judgment in any suit brought as a class action, must decide what its extent or coverage shall be, and if the matter is carefully considered,…
- Zapata v. IBP, Inc., 167 F.R.D. 147 (D. Kan. 1996).published Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986).
- Edgington v. R.G. Dickinson & Co., 139 F.R.D. 183 (D. Kan. 1991).publishedKey v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986).
- Skeet v. Sears, Roebuck & Co., 137 F.R.D. 347 (D. Kan. 1991).publishedRule 23(a)(4) requires that the named representative have common interests with the unnamed class members, Bishop v. Committee on Professional Ethics, Etc., 686 F.2d 1278 , 1289 (8th Cir.1982), and that the named plaintiff’s counsel be qua…
- Arney v. Finney, 766 F. Supp. 934 (D. Kan. 1991).publishedKey v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986).
- Fetterman v. Univ. of Connecticut, 559 A.2d 246 (Conn. Super. Ct. 1988).publishedEd. 2d 453 (1977), failure promptly to move for class certification “bears strongly on the adequacy of representation that those class members might expect to receive.” Fair and adequate representation “is particularly important because th…
- In re Pharm. Indus. Average Wholesale Price Litig., 588 F.3d 24 (1st Cir. 2009).publishedSee Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir. 1986).
- Howe v. Townsend, 588 F.3d 24 (1st Cir. 2009).publishedSee Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986).
- Weinman v. Fid. Capital Appreciation Fund (In re Integra Realty Resources, Inc.), 262 F.3d 1089 (10th Cir. 2001).publishedSee, e.g., Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir.1986); In re Fine Paper Antitrust Litig., 617 F.2d 22, 27 (3d Cir.1980).
- Smith v. Armstrong, 968 F. Supp. 50 (D. Conn. 1997).published(the requirement of Rule 23(a)(4) “is particularly important because the due process rights of absentee class members may be implicated if they are bound by a final judgment in a suit where they were inadequately represe…)
- In re Integra Realty Resources, Inc. Integra - a Hotel & Restaurant Co. BHC of Denver, Inc., Debtors. Jeffrey A. Weinman, as Tr. for the Integra Unsecured Creditors' Trust v. Fid. Capital Appreciation Fund, - Ad Hoc Prot. Comm. for Show Biz Stockholders Rodney J. Axtell, Individually & as Custodian for Jonathan Axtell Mary E. Axtell Eunice H. Beck Robert R. Beck Richard H. Beck Eleanor S. Beck Michael Benenson Kerri Beneson, as Trs. Julius B. Binder, as Tr. Binders' Big Men's Store, Inc. James Bogeazis Joseph M. Cocquoyt Maurice Gardler David Gardner Martin Greenberg Leon Gredahl Robert J. Harris Michael J. Hayes Edward Herzig Rodney William Kennow Richard O. Jacobson Fern Lazar Murray Lazar Kathryn L. Ludgren Joseph Mastrangelo Charles H. Morin Herbert Nadler Rochelle Nadler Frank Nichol Barbara Nichol Robert v. Palan, Individually & as Custodian for David Barry Charles Potter Racquel-Div. of Binder's Big Men's Store Gladys Ryan Donald J. Resnick Rachnall Schlafstein Sydelle Schechter John T. Sheehy Carl Schechter Seidman & Seidman, Pc Profit Sharing Trust James R. Shapiro Leon D. Sheldahl Irving Sirota E. Thomas Spengler Hjalmar J. Sundin, as Tr. Frederick K. Watson, Jr. Ben Wong, Jr. Benjamin B. Wong Grace C. Wong Vance E. Vorhees Lawrence Zucker, & Any & All Additional Parties Who Either Have Joined or Will Join the Said Comm., - Jeffrey A. Weinman, as Tr. for the Integra Unsecured Creditors' Trust v. Fid. Capital Appreciation Fund, - Ad Hoc Prot. Comm. for Show Biz Stockholders Rodney J. Axtell, Individually & as Custodian for Jonathan Axtell Mary E. Axtell Kamal Barsoum Eunice H. Beck Robert R. Beck Richard H. Beck Eleanor S. Beck Michael Benenson Kerri Beneson, as Trs. Julius B. Binder, as Tr. Binders' Big Men's Store, Inc. James Bogeazis Joseph M. Cocquoyt Darrell H. Cooper Robert Domine Maurice Gardler David Gardner Martin Greenberg Leon Gredahl Perry Green Robert J. Harris Michael J. Hayes Edward Herzig Rodney William Kennow Fern Lazar Murray Lazar Kathryn L. Ludgren Joseph Mastrangelo Charles H. Morin Herbert Nadler Rochelle Nadler Frank Nichol Barbara Nichol Nicole Neiman Robert v. Palan, Individually & as Custodian for David Barry Charles Potter Racquel-Div. of Binder's Big Men's Store Gladys Ryan Donald J. Resnick Elsie v. Rosamen Serita Server Rachnall Schlafstein Sydelle Schechter John T. Sheehy Carl Schechter Seidman & Seidman, Pc Profit Sharing Trust James R. Shapiro Leon D. Sheldahl Irving Sirota Hjalmar J. Sundin, as Tr. Frederick K. Watson, Jr. Ben Wong, Jr. Benjamin B. Wong Grace C. Wong Vance E. Vorhees Jerome Younger Marcella Youner Lawrence Zucker, - Jeffrey A. Weinman, as Tr. for the Integra Unsecured Creditors' Trust v. Fid. Capital Appreciation Fund, - Ad Hoc Prot. Comm. for Show Biz Stockholders Eugene Shine & Edward C. Cafmeyer, - Jeffrey A. Weinman, as Tr. for the Integra Unsecured Creditors' Trust v. John E. Anderson Jane Anderson, - Jeffrey A. Weinman, as Tr. for the Integra Unsecured Creditors' Trust v. Vanguard Grp., Inc., - Fid. Capital Appreciation Fund, Intervenor. Jeffrey A. Weinman, as Tr. for the Integra Unsecured Creditors' Trust v. Russell Hawley Gerald Buckman Robert Frankiewicz Bernard Neuman, Custodian for Jordan Abba Neuman Utma Il Jordan Neuman Jonathan Neuman James S. Saunoris Sandra R. Saunoris James S. Saunoris & Wayne Hummer & Co., Custodian Fbo James S. Saunoris Ira Plan Keith J. Peetz Louis Bory Grace Charles, Fbo Grace Charles Ira Michael J. Connelly Ronald Manzi Bernard Packer, Fbo Bernard Packer Ira & Tr.(s) Thereof Joseph Regan Kenneth J. Greenberg Sherrie Greenberg Edwin Blair Plyler Ellen Plyler John J. Wilk, - Harriet Yang & Automated Elec. Corp., Fid. Capital Appreciation Fund, Intervenor. Jeffrey A. Weinman, as Tr. for the Integra Unsecured Creditors' Trust v. Raleigh Emery Catherine Emery Arnold Cutkomp Joellen Cutkomp, Also Known as Ellen Cutkomp Michael Bergantino Michael Bergantino, Tr. Fbo Michael Bergantino Ira Peggie Bergantino Melvin Churovich Ruth E. Churovich G. James Zyskowski Marilyn J. Zyskowski Marilyn J. Zyskowski, Custodian Fbo Julie Anne Zyskowski Ugma Mn, No. 1089 (10th Cir. Dec. 21, 1983).publishedSee, e.g., Key v. Gillette Co., 782 F.2d 5, 7 (1st Cir. 1986); In re Fine Paper Antitrust Litig., 617 F.2d 22, 27 (3d Cir. 1980). 71 Fidelity's purported conflicts did not render it inadequate to represent the class either at the beginning…
At page 6 Assessing adequacy of class representative's representation7 citing casesfinding that the requirements of Rule 23(a) are mandatory
- Garcia v. Tyson Foods, Inc., 890 F. Supp. 2d 1273 (D. Kan. 2012).publishedSee Briggs v. Anderson, 796 F.2d 1009, 1017-19 (8th Cir.1986); Key v. Gillette Co., 782 F.2d 5, 6-7 (1st Cir.1986).
- Farmers Ins. Exch. v. Benzing, 206 P.3d 812 (Colo. 2009).published Co., 54 F.3d 1207, 1212 (5th Cir.1995); Key v. Gillette Co., 782 F.2d 5, 6-7 (1st Cir.1986); Briggs v. Anderson, 796 F.2d 1009, 1017 (8th Cir.1986); Samuel v. Univ. of Pittsburgh, 538 F.2d 991 , 996 n. 5 (3d Cir.1976).
- Benzing v. Farmers Ins. Exch., 179 P.3d 103 (Colo. Ct. App. 2008).published See Birmingham Steel Corp. v. Tennessee Valley Auth., 353 F.3d 1331, 1335 (11th Cir.2003); Paton v. New Mexico Highlands Univ., 275 F.3d 1274, 1278 (10th Cir. 2002); Pederson v. Louisiana State Univ., 213 F.3d 858 , 866 (5th Cir.2000); Low…
- Daenzer v. Wayland Ford, Inc., 210 F.R.D. 202 (W.D. Mich. 2002).published(finding that the requirements of Rule 23(a) are mandatory)
- Rand v. Cullinet Software, Inc., 847 F. Supp. 200 (D. Mass. 1994).publishedKey v. Gillette, 782 F.2d 5, 6 (1st Cir.1986).
- Thomasson v. GC Servs. Ltd. P'ship, 275 F.R.D. 309 (S.D. Cal. 2011).publishedSee Key v. Gillette Co., 782 F.2d 5, 6 (1st Cir.1986). b.
- Mayfield v. Meese, 704 F. Supp. 254 (D.D.C. 1988).publishedSee Key v. Gillette Co., 782 F.2d 5, 6-7 (1st Cir.1986); National Ass’n of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 346 (D.C.Cir.1976), ce rt. denied, 431 U.S. 954 , 97 S.Ct. 2674 , 53 L.Ed.2d 270 (1977).
Other citing cases
- Amazon.com Inc v. Peng, No. 2:23-cv-00607 (W.D. Wash. Nov. 8, 2024).
- Puget Sound Elec. Workers Healthcare Trust v. Pac. Ship Repair & Fabrication Inc, No. 2:23-cv-00046 (W.D. Wash. May 11, 2023).
- Nw. Administrators Inc v. KCD Trucking Inc, No. 2:22-cv-00856 (W.D. Wash. Sept. 20, 2022).
- Locals 302 & 612 of the Int'l Union of Operating Engineers Constr. Indus. Health & Sec. Fund v. 509 Excavating LLC, No. 2:19-cv-01738 (W.D. Wash. Aug. 31, 2022).
- Bradley v. Bradley, No. 2:22-cv-01435 (D. Ariz. Mar. 20, 2023).
- (PS) Martin v. Mez, No. 2:20-cv-00855 (E.D. Cal. Oct. 26, 2021).
- Labombard v. Textron Auto., No. 99-1907 (1st Cir. Mar. 31, 2000).unpublished
- Robin v. Doctors Officenters Corp., 123 F.R.D. 579 (N.D. Ill. 1988).published
v.
GILLETTE COMPANY, Defendant, Appellee
The issue in this appeal is whether the district court abused its discretion in revoking the class certification, 104 F.R.D. 139 (D.C.Mass.), after the court had ruled against the plaintiff on her individual claim.
Barbara J. Key filed this sex discrimination in employment action on behalf of herself and all women who held any exempt position (salaried, nonhourly employees) at any of the Massachusetts facilities of The Gillette Company during the years 1968 through 1975, inclusive. It was alleged that Gillette regularly paid women less than comparably qualified men and relegated women to the lower paying job grades.
The issue of certification has been forcefully argued since the early stages of this litigation and has been a constant source of controversy. When the class was originally certified in 1979, notice was sent to all potential members of the class, inviting them to intervene if they so desired. None responded to this notice. Following a bench trial, the court dismissed plaintiff’s individual claim and decertified the class. Plaintiff only appealed from the judgment of the district court with respect to the issue of decertifiation. The case was remanded in 1983 to allow the district court to decide that issue after hearing argument on the possibility that the statute of limitations had run on the claims of other members of the class and on appellant’s representation that others in the class would have come forward to participate in the litigation, if so requested, once they learned that she had lost. The parties were given time to file memoranda on these matters. On remand, the district court rejected these arguments stating that the limitations period was tolled during the time that the class action was pending and that class-wide notices elicited no response whatsoever from any putative class member. The district court also observed that Key’s inability to support her individual claim of discrimination was by no means the sole basis for its prior decision to decertify.
On this second appeal, appellant does not challenge the court’s disposition of the two matters which prompted a remand. Instead, she has renewed her general objection to the decertification ruling as being erroneous and seeks a detailed review of the merits of the case arguing that the district court acted on an erroneous premise when it applied Rule 23 criteria. The applicable standard of review is whether[*7] the district court abused its discretion in decertifying the class. We find there was no abuse of discretion. See DeGrace v. Rumsfeld, 614 F.2d 796, 809, n. 12 (1st Cir.1980); Lamphere v. Brown University, 553 F.2d 714, 720 (1st Cir.1977).
As both parties recognize, all four requirements of Rule 23(a) must be met in order for certification of a class to be proper. Katz v. Carte Blanche Corporation, 496 F.2d 747, 756 (3rd Cir.), cert. denied, 419 U.S. 885, 95 S.Ct. 152, 42 L.Ed.2d 125 (1974). One of the most important of these requirements is that the representative party fairly and adequately represent the interests of the class. Rule 23(a)(4). This requirement is particularly important because the due process rights of absentee class members may be implicated if they are bound by a final judgment in a suit where they were inadequately represented by the named plaintiff. Dierks v. Thompson, 414 F.2d 453, 456 (1st Cir.1969); see also Scott v. University of Delaware, 601 F.2d 76, 85 (3rd Cir.), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 189 (1979); National Ass’n of Regional Medical Programs, Inc. v. Mathews, 551 F.2d 340, 346 (D.C.Cir.), cert. denied, 431 U.S. 954, 97 S.Ct. 2674, 53 L.Ed.2d 270 (1977); Helfand v. Cenco, Inc., 80 F.R.D. 1, 7 (N.D.I11.1977). An essential ingredient of this requirement is that the class representative’s attorneys be qualified to vigorously and adequately prosecute the interests of the class. Wetzel v. Liberty Mutual Insurance Co., 508 F.2d 239, 247 (3rd Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975) . The court has an ongoing duty to make sure that this requirement is complied with at all stages of the litigation. In re General Motors Corp. Engine Interchange Litigation, 594 F.2d 1106, 1124 (7th Cir.), cert. denied, Oswald v. General Motors Corp., 444 U.S. 870, 100 S.Ct. 146, 62 L.Ed.2d 95 (1979); Grigsby v. North Miss. Medical Center, Inc., 586 F.2d 457, 462 (5th Cir.1978). In the present case, the district court found that the weak presentation of the individual discrimination claim, the serious deficiencies in the methodology of the principal expert, the failure of appellant’s attorney to present the expert’s testimony in a manner that could be understood by the court and his general lackluster performance during trial all reflected appellant’s inability to “fairly and adequately protect the interests of her class.” Whether or not the court “operated under [an] erroneous legal premise[],” DeGrace, 614 F.2d at 809, n. 12, in applying Rule 23(a)(2)’s commonality of interest requirement, there was sufficient basis in the record to decertify because the requirement of fair and adequate representation of rule 23(a)(4) was not met. Cf. Wrighten v. Metropolitan Hospitals, Inc., 726 F.2d 1346, 1352 (9th Cir.1984) (no abuse in discretion in not certifying class based on doubts as to competency of counsel). The district court’s decertification ruling was really intended to protect absentee class members from the possible adverse res judicata effects of the case and to preserve for them the opportunity of presenting a better prepared case in the future. Its ruling was not an abuse of discretion and is, therefore,
Affirmed.