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

Defer No Time – Ernst v. City of Chicago

Posted in Motions Practice

 In 2004, five women applied to be paramedics with the Chicago fire department, a demanding job with a demanding application process. While they were otherwise qualified, these five women, for whatever reason, did not pass the city’s physical ability test. After they were removed from the city’s eligibility list, they sued the city in Ernst v. City of Chicago (2012 U.S. Dist. LEXIS 1003 (N.D. Ill. Jan. 5, 2012)), alleging that the test violated Title VII.

If that were the whole story, there would be no reason for me to write about it. But in 2011, three years after they filed their original lawsuit and almost a year after fact discovery had closed, the plaintiffs sought to amend their lawsuit to turn it into a class action.

Why did they wait so long? It’s hard to say. It could be that it took a year for their lawyers to process the discovery received and notice classwide patterns (unlikely, Title VII cases that challenge policies or tests are common candidates for class-action treatment). It could be that their lawyers just hadn’t thought of it (also unlikely, since the court repeatedly praised their performance in the case). Or it could be that adding class allegations was a negotiating tactic to bring a three-year lawsuit to some kind of resolution. The court itself was flummoxed, finding nothing that could "persuasively account for the extended delay."

Whatever the reason, the City of Chicago opposed the amendment, arguing that the delay was prejudicial, in no small part because it would have to reopen discovery. The plaintiffs pooh-poohed the alleged prejudice, and argued that the City could not seek discovery of absent class members in any case. They also argued that, because they were challenging a City policy, it was already on notice that the case was a good candidate for class treatment.

The court disagreed. It observed that, given the lead plaintiff’s attorney’s exemplary conduct of the case to that point, there was no way she could have missed the possibility the case could make a class action, meaning that the delay was particularly inexcusable. It also pointed out that the defendants might well be entitled to discovery from other class members on a showing of good cause. And it observed that

it cannot be denied that the transformation of the case into a class action would raise entirely new issues of certification, notice, and the other complex issues that are a part of class actions and this after the individual claims have already moved three years closer to ultimate resolution of the case.

Then, in a conclusion that quoted both Henry VI Part I ("Defer no time, delays have dangerous ends") and Twelfth Night ("In delays there lies no plenty"), the court denied the motion to amend.

Motions to amend are usually easy for plaintiffs to win, so the fact that they lost in this case should offer a few lessons for class-action litigators. Here are a few:

  1. Long delays can in fact be prejudicial; a fact worth remembering when plaintiffs make eleventh-hour amendments.
  2. Class actions are big and complicated. Reminding the court of that fact–even during "easy" motions–almost always helps the defendant.
  3. The better you are at prosecuting (or defending) your case, the more the court will come to expect from you.
  4. If nothing else, it never hurts to brush up your Shakespeare.