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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

Classic Cases – Culver v. City of Milwaukee

Posted in Certification

 Culver v. City of Milwaukee dealt with allegations of race discrimination–specifically, a white man who claimed he had been denied a job application at the Milwaukee police department because it was not accepting white males the year he applied. The trial court certified his proposed class (which consisted both of white men who had allegedly been denied applications and white men who might have been passed over because of changes in exam scoring to favor minorities). A year later, Culver got a different job, with which he was content, thus mooting his claim. Five years after that, a different trial judge decertified the class because Culver was not an adequate class representative. Culver appealed.

Judge Posner began his opinion by noting that

The class action is an awkward device, requiring careful judicial supervision, because the fate of the class members is to a considerable extent in the hands of a single plaintiff (or handful of plaintiffs, when, as is not the case here, there is more than one class representative) whom the other members of the class may not know and who may not be able or willing to be an adequate fiduciary of their interests. Often the class representative has a merely nominal stake (Culver has no stake), and the real plaintiff in interest is then the lawyer for the class, who may have interests that diverge from those of the class members. The lawyer for the class is not hired by the members of the class and his fee will be determined by the court rather than by contract with paying clients. The cases have remarked the danger that the lawyer will sell out the class in exchange for the defendant’s tacit agreement not to challenge the lawyer’s fee request.

He then stated that Rule 23

tries to minimize the potential abuses of the class action device in two principal ways, first by insisting that the class be reasonably homogeneous, and second by insisting that the class representative be shown to be an adequate representative of the class.

In this case, the largest problem was that the two classes Culver sought to certify were mutually exclusive. White men who had received no job application at all would offer very different proof than those who had sat for an entrance exam, and then had their test scores changed after the fact. Oddly, Culver’s counsel, rather than finding a representative of the second proposed class, insisted that both classes be represented by the same person. (This might have been, as Posner noted, because "no member of the class has any interest beyond that of a curious onlooker in pursuing this litigation.")

At this point, Posner became extremely candid:

For purposes of determining whether the class representative is an adequate representative of the members of the class, the performance of the class lawyer is inseparable from that of the class rep- resentative. This is so because even when the class representative has some stake (unlike Culver), it is usually very small in relation to the stakes of the class as a whole, magnifying the role of the class lawyer and making him (or in this case her) realistically a principal. Indeed the principal. When we said earlier in this opinion that “Culver has done nothing to move the case forward except to file a flurry of frivolous motions” and remarked “the lack of energy with which he [Culver] has performed his function of class representative” and that the courts and Congress had refused as yet to rule that “the requirement that a class action, like any other suit, have a plaintiff is to be dropped and the class lawyer recognized as the true plaintiff,” realists reading this opinion no doubt sniggered. All Culver’s moves in this suit were almost certainly the lawyer’s. Realistically, functionally, practically, she is the class representative, not he.

(Italicized emphasis in original.)  The Culver opinion has proven long-lived precisely because of this candor. In addition to providing a typically lucid explanation of why the adequacy requirement is so important (a fact that is often overlooked in the rush to certify classes or approve settlements), Judge Posner also explained, in simple terms, how class actions really operate. He unmasks the fiction that the named plaintiff is in any way in charge of a class-action lawsuit as just that–a fiction. A number of scholars, judges, and legal reformers have continually wondered what can be done to solve the so-called "agency problem" in class actions. In many ways, the Culver opinion reinforces that there is a simple, easily-enacted solution: enforce the adequacy requirement. If the named plaintiff is truly an adequate representative of the class, then we should not have to worry about whether or not he can stand up to his lawyer when her interests diverge from the class’s.