Class Action Countermeasures
Injunctive relief classes and the necessity requirement
A common question new students of Rule 23(b)(2) ask is why it exists at all. After all, if an injunction truly offers indivisible relief, why would one seek to bring it on behalf of a class? Wouldn't the individual pursuing the injunction get relief for the class if she wins just by bringing the lawsuit in the first place?
There is an answer to this question, and it is one that has its roots in the desegregation era. When blacks seeking desegregation orders sued for injunctions, they did so on behalf of a class to avoid the problem of racist school districts granting admission one at a time to the plaintiffs who sought the orders. At that point, there was a clear need for the class action device to ensure the real relief the plaintiffs sought (desegregation) could be accomplished.
As it turns out, the question of when a class action is necessary to effect injunctive relief has remained, and so a number of courts have imposed a "necessity" requirement (much like the "cohesiveness" requirement) on Rule 23(b)(2).
The most recent example of the "necessity" requirement came last week, in the case
M.R. v. Bd. of School Comm'ners of Mobile Cty., No. 11-0245-WS-C, 2012 U.S. Dist. LEXIS 154500 (S.D. Ala. Oct. 29, 2012).
M.R. involved ten student plaintiffs, who all alleged that they had been "long-term suspended" (suspended for more than two consecutive weeks) from their public schools without notice or a hearing, which they argued was a clear violation of their due process rights. Their lawsuit challenged Mobile County's suspension policy on behalf of all students of the school system. They sought no monetary relief.
The school system (after unsuccessfully challenging the lawsuit on standing grounds), opposed certification on the grounds that it was not necessary:
"The Board's point, quite simply, is that it would be superfluous to certify a class here because, if plaintiffs prevail on the merits, their requested injunctive declaratory and injunctive relief would have precisely the same scope and effect regardless of whether a class is certified or not."
(Emphasis added.) Rather than dismiss the argument as chutzpah, the court did its research, and noted that
considerable authority demonstrates that, whether it is deemed a formal "requirement" or not, the necessity of the class mechanism to afford complete relief is a proper consideration in the Rule 23(b)(2) analysis. … In the typical case, the district court weighs the benefits (if any) of class certification under Rule 23(b)(2) against the inherent burdens associated with transforming ordinary litigation into a class action. Where the members of the proposed class would benefit from the relief sought by the individual plaintiffs even if no class were certified, those courts often find that the burdens outweigh the benefits and that class certification is properly denied as inappropriate.
While the court observed that the Eleventh Circuit had not yet ruled on this question, it pointed out that
the clear majority rule is that "need" is a proper consideration (even if not technically a "requirement" for class certification), and that class certification may be properly denied where a class is unnecessary to obtain the full measure of relief sought, such that it is not appropriate to bog down the litigation with the expense, delay, complexity and burden of class certification when there is no corresponding benefit to implementation of the resulting judgment.
(Emphases added.) Since the only "need" the plaintiffs identified was additional discovery about the circumstances of other class members (which, the court noted, would only be necessary if the class was not in fact cohesive), the court refused to certify the class.
So what can we take from this case? First, despite the lack of any tests in the text, Rule 23(b)(2) certification does require the plaintiffs to meet at least three requirements: indivisible relief, cohesiveness, and necessity. Second, this case reiterates an important trend: courts are paying more attention to when the cost and complexity of a class action are actually required in a case. For defendants who find themselves opposing frivolous or ill-thought-out class actions, that's a welcome development.