With the growing trend of federal appellate courts enforcing district courts’ "rigorous analysis" of class certification requirements, the danger of a class action getting certified on insufficient facts has diminished. But that hardly means that plaintiffs will always provide enough facts to justify certification. Take the case of Botehlo v. Hawaii, 2010 U.S. Dist. LEXIS 16936 (D. Haw. 2010).
The plaintiffs in Botehlo were prison inmates, both pre-trial detainees and convicts. They protested the conditions of their confinement, which allegedly included sleeping on the prison floor, being denied access to toilets, and lack of personal hygiene materials. After the plaintiffs filed their complaint, both sides stipulated to an administrative process that would involve placing evidence in front of a court-appointed Special Master. When those discussions broke down, the plaintiffs filed a motion to certify a class.
While the plaintiffs submitted one affidavit from their counsel, they submitted no other evidence. And the court noticed.
Finally, apart from Mr. Seitz’s affidavit, there is no evidence for this Court to review and determine whether class certification is appropriate, particularly for the time period after August 2005. Although class certification is within the discretion of the court, the district court must still base its decision to certify on evidence.
(Emphasis added.) The court also listed out other kinds of evidence that the plaintiffs could have submitted.
[E]xamples from other district courts show the type of evidence that parties might submit in furtherance of a motion to certify class. In Von Collin v. County of Ventura, the Central District of California certified a class of inmates who had been restrained by a "pro-straint" chair. 189 F.R.D. 583, 585 (C.D. Cal. 1999). Plaintiffs submitted documentation that the chair was used approximately 377 times over a 18-month period, and provided analysis of why the chair was used, jail incident reports, inmate monitoring logs, and forensic medical records. Id. at 590-95. The analysis showed: (1) the number of inmates processed during an 18-month period; (2) the number of times inmates were subjected to the alleged confinement during that period; (3) the reasons for each use of the alleged confinement; and (4) the length and number of times each inmate was subjected to the alleged confinement. Id. at 595-96. In Cartwright v. Viking Industries, Inc., the plaintiffs sought to certify a class of residents who installed Viking Series 3000 window products. 2009 U.S. Dist. LEXIS 83286, 2009 WL 2982887 (E.D. Cal. Sept. 14, 2009) (slip opinion). The plaintiffs presented evidence of one-million window product sales during the class period coupled with expert testimony providing the number of windows in an average residence. 2009 U.S. Dist. LEXIS 83286, 2009 WL 2982887, at *5. This allowed the court to conclude that windows were installed in approximately 50,000 residential units during the class period and joinder of these parties would be impracticable. Id. And in Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc., the plaintiffs sought to certify a class of bus operator employees for alleged meal and rest period violations. 2009 U.S. Dist. LEXIS 7171, 2009 WL 249888 (S.D. Cal. Feb. 2, 2009) (slip opinion). The plaintiffs submitted 12 declarations of class members in support of their motion.
As a result, the district court in this case refused to certify the class. What can defense counsel learn from this? It’s still well worth challenging the factual basis of certification. If the plaintiffs have not provided enough facts to support certification of a class, courts are more prepared than ever to deny their request.