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

Classic Scholarship – The Class Action Device in Antisegregation Cases

Posted in Strategy

 This month, in our piece of classic scholarship looks at an old University of Chicago Law Review comment on how to use class action. The Class Action Device in Antisegregation Cases, 20 U. Chi. L. Rev. 577 (1953). (JSTOR link here.)

The Comment takes a plaintiffs’ view of how to use class actions to combat segregation (which it defined to mean "any policy of discriminatory treatment of a minority group"). It begins with an observation that even it called "obvious," but that sets up much of its argument argument: that "segregation is a group phenomenon."

One reason that the class action appears to be an advantageous method of securing relief for the group is that a favorable decree will in its terms apply to all members. A decree rendered in an action brought by an individual on grounds that he is being discriminated against will require the defendant to desist from such practices only where the individual is concerned. The position of the group will improve only if compliance with the decree by the defendant incidentally inures to the benefitof all members.But a decree rendered in a class action will benefit directly the group as a unit.

(Internal citation omitted.) This group benefit also gave class-action plaintiffs a rhetorical advantage over individuals who challenged segregationist policies.

Another advantage of the class action device in this type of case is that it aids the plaintiffs in showing the seriousness of the discriminatory practice complained of. Use of the device itself carries an implicit declaration that the alleged wrong is general, widespread, and a matter of state policy. Moreover, if the action were brought by an individual only on his own behalf, evidence of the group nature of the wrong might not be relevant. But in a class suit, evidence of discrimination against any and all members of the class would be admissible, enabling the plaintiff to broaden the nature of his proof and increase the difficulties of rebuttal.

In particular, the class allegations would add weight to an individual challenge. While it might be easy to dismiss an individual plaintiff as a crank, a class plaintiff began with more (implicit) gravitas.

Further, individual plaintiffs asking relief from discriminatory practices might be viewed by the court and by the community as malcontents or eccen- trics. The receptiongiven to the commencement of such an action would probably be much better if it were brought in the name of and on behalf of the entire group affected by the segregation. Class representatives would appear not so much as a few plaintiffs with a grudge, but as part of a group with a justifiable claim

And using class allegations would also help prevent what had apparently become a common problem: getting rid of a challenge to a discriminatory policy by granting relief only to that person who raised the challenge, by, say, admitting a single black to a segregated swimming pool. (This would be a prototype for the mootness arguments made today in consumer class actions.)

There is some doubt whether the same result would obtain if an action is brought for the benefit of an entire class.The Court of Appeals for Eighth Circuit has held that before a class action can be dismissed, there must be some evidence of permanent abandonment of the discriminatory policy complained of. The court in Morris v. Williams  said that one reason the action would not be dismissed on the claim of defendants’ counsel that the discriminatory salary schedule had been replaced by a non discriminatory schedule was that "there is no assurance. . . that such usage and custom may not be resumed at any time, even though presently abandoned."

What can modern class-action defendants take from this? First, this article is a good reminder that not all class actions are bad. Defense lawyers see far too many meritless class actions propped up by "justice"-oriented rhetoric. It can make them jaded. And it can be good to be reminded that sometimes a class action is an appropriate remedy for certain cases. Second, this article does a good job of showing why so many of today’s class actions seem so venal. Antisegregation activists were fighting true group problems, that could be solved with true group remedies. (Remember, these class actions took place before the 1966 Amendments. These litigants were looking for injunctive relief, not money, and not money dressed up as an injunction.) This is the difference between a modern "civil rights" class action like the Dukes case, and the actual civil-rights class actions like Morris: one was seeking actual change, the other money clothed in noble rhetoric.

Second, the history can provide some context as to why courts make some of the decisions they do today about class actions. From a defendant’s perspective, a Rule 68 offer of judgment to an individual who is hoping to leverage a truly unique bad customer experience into a class action makes eminent sense, and seems perfectly fair. Nonetheless, many courts will still reject any attempt at the tactic. At the time Morris was decided, that judgment made sense: it reflected the action of a community determined to discriminate. In the context of a modern 23(b)(3) class action for money damages, it’s harder to tell whether either party has the equities on its side.

It’s always worth looking back at the history of the class action. The cases may change, but many of the tactics stay the same, even when they’re not perfect fits for the case in which they’re employed.