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

Cohesiveness and Commonality – MD v Perry

Posted in Certification

 In the wake of Wal-Mart Stores, Inc. v. Dukes, plaintiffs and trial courts are still trying to determine exactly how to apply the clarified commonality standard of Rule 23(a)(2), and the standard for injunctive relief under Rule 23(b)(2). The good news for defendants, as demonstrated in the new case M.D. v. Perry, 2012 U.S. App. LEXIS 6061 (5th Cir. Mar. 23, 2012), the appellate courts are largely following the Supreme Court’s lead in Dukes. (My apologies: Google Scholar doesn’t have the opinion yet, and the Fifth Circuit website appears to be having difficulties.)

The plaintiffs challenged the state’s long-term foster care program, known as the Permanent Managing Conservatorship ("PMC"). They alleged that Texas’s mismanagement of the PMC had created a variety of problems for the 12,000 children under its care. They sought injunctive relief under Rule 23(b)(2).

The lower court acknowledged that different children would have been treated differently by the system, but certified the class anyway. It identified the "common question" uniting the class as the legality of the foster-child regime as administered in Texas. It reasoned that the Fifth Circuit had held that the commonality standard was not a demanding one, and that the plaintiffs’ proposed common questions could apply to all class members, even if they yielded different answers for different class members.

The Fifth Circuit disagreed. First, it pointed out that that Dukes has changed its standard for commonality.

Thus, the commonality test is no longer met when the proposed class merely establishes that "there is ‘at least one issue whose resolution will affect all or a significant number of the putative class members.’" Forbush, 994 F.2d at 1106 (emphasis added) (citation omitted). Rather, Rule 23(a)(2) requires that all of the class member’s claims depend on a common issue of law or fact whose resolution "will resolve an issue that is central to the validity of each one of the [class member's] claims in one stroke."

(Emphasis in original.) And then it pointed out that, in this case, the alleged "common issues" had been pitched at too general a level to yield any common answers that would actually advance the litigation.

Accordingly, given the "amorphousness" of the proposed class’s proffered common issues of fact and law, the district court should be particularly precise when explaining how the resolution of those claims "will resolve an issue that is central to the validity of each of the [individual class member's claims] in one stroke." Wal-Mart, 131 S. Ct. at 2551. The district court’s present certification order failed to do so; thus, we conclude that it failed to perform the "rigorous analysis" that is required in order to find that the proposed class satisfied Rule 23(a)(2)’s commonality requirement.

(Emphasis added.)  But the Fifth Circuit did not stop there. After pointing out that a request for injunctive relief must be "specific," it also held that, because the plaintiffs had asked–indirectly–for individualized injunctive relief, that it was clear that the class lacked the cohesiveness to justify certification under Rule 23(b)(2).

"A proposed class cannot avoid Rule 23(b)(2)’s prohibition on claims for individualized relief by petitioning the district court to order the defendant to craft individualized "injunctive-type" relief for certain class members. See Jamie S., 668 F.3d at 499 (holding that proposed injunctive relief did not satisfy Rule 23(b)(2) when the district court’s order "would merely initiate a process through which highly individualized determinations of liability and remedy are made; this kind of relief would be class-wide in name only, and it would certainly not be final"). Accordingly, we find that the requested individual relief implicitly establishes that at least some of the proposed class’s underlying claims allege individual injuries that are not uniform across the class; thus, as currently pleaded, the proposed class lacks cohesiveness to proceed as a 23(b)(2) class.

(Emphasis added.)  The Fifth Circuit remanded the case for further consideration. (It reasoned that the plaintiffs might be able to allege a more limited class that could justify certification.)

The applications of this opinion to defense work are clear. First, like the Seventh Circuit in Jamie S., the Fifth Circuit has affirmed that a plaintiff may not simply plead around Rule 23(a)(2) by keeping her claims amorphous. And second, the Fifth Circuit has also affirmed the "cohesiveness" standard implicit in Rule 23(b)(2), and shown its importance in a world with a more rigorously-enforced commonality standard.