By Thomas R. Grande
I. Introduction
Federal Rule of Civil Procedure 23(b)(2) (ì23(b)(2)î) is intended for cases where broad, class-wide injunctive or declaratory relief is necessary to redress a group-wide injury. After its adoption in 1966, legal services organizations and employment lawyers widely used 23(b)(2) throughout the 1970s and 1980s to enforce federal social welfare legislation and civil rights laws. Since the 1991 amendments to the federal civil rights laws providing for recovery of monetary damages, in addition to declaratory, injunctive, and equitable relief, several courts have restricted the use of 23(b)(2) in civil rights cases. These decisions, however, illustrate the potential to use 23(b)(2) as an innovative class action technique, which should be considered by consumer lawyers in consumer rights cases.
This article first provides an overview of the history and elements of Rule 23(b)(2), including a brief discussion of the advantages and disadvantages of using a 23(b)(2) class. It next discusses the type of relief obtainable through the use of a 23(b)(2) class and summarizes the use of 23(b)(2) classes under several consumer statutes. It then suggests several innovative strategies that consumer lawyers can use in litigating 23(b)(2) class action claims. The article concludes by presenting a case summary of the authorís innovative use of 23(b)(2) in a case seeking both declaratory and monetary relief.
II. History and Elements of Rule 23(b)(2)
As with its companion provisions of 23(b)(1) and 23(b)(3), to obtain class certification under 23(b)(2), plaintiffs must first satisfy the four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy of representation. Once the 23(a) requirements are satisfied, two elements must be met under Rule 23(b)(2): 1) the party opposing the class must have acted on grounds generally applicable to the class; and 2) final injunctive or corresponding declaratory relief must be requested.
Rule 23(b)(2) differs both substantively and procedurally from the more commonly used damages class under Rule 23(b)(3). Substantively, claims in 23(b)(2) cases are for ìfinal injunctive and declaratory relief,î while claims in 23(b)(3) may also encompass individualized monetary damages. Also, in contrast to a Rule 23(b)(3) action, which must meet the elements of predominance and superiority, 23(b)(2) requires only that the party opposing the class acts the same toward the class and that some class members seek final injunctive relief. Although rarely emphasized by litigants and the court, the omission of the elements of predominance and superiority is important because it means that class certification should be granted even where common issues do not predominate, and where the class action mechanism is not necessarily the most superior method of resolving the dispute. An omission of these two substantive requirements makes 23(b)(2) classes subject to a less stringent certification standard and illustrates a significant advantage in obtaining class certification.
Rule 23(b)(2) also has procedural advantages over 23(b)(3). For example, Rule 23(b)(3) allows for individualized monetary damages, requires best practicable notice for all class members, and allows class members the opportunity to opt-out of the case. In contrast, 23(b)(2) classes are mandatory, no personal notice is required to be given to class members, and no-opt-out right is provided.
From the defendantís perspective, a 23(b)(2) action is advantageous because the judgment binds all class members, whether or not they oppose the class action or are damaged by the defendantís wrongful conduct. Thus, the defendant can be assured that any future plaintiffs bringing the same claims will be barred by res judicata.
From the plaintiffís perspective, the absence of required notice is a significant advantage because notice can be so expensive and time-consuming as to render valid claims unworthy of pursuing. No pre-judgment notice is required at all, and post-judgment notice may be given to the class representatives only. However, as shown below, the absence of notice requirements raises a possible concern regarding the Seventh Amendment right to a jury trial.
A. Acting or Refusing to Act on Grounds Generally Applicable to the Class
Rule 23(b)(2) authorizes certification of a class action where ìthe party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate and final injunctive or corresponding declaratory relief with respect to the class as a whole. . . .î Although the party opposing the class must have acted or refused to act on grounds generally applicable to all class members, the conduct in question does not need to be directed at or damaging to each member of the class. The Advisory Committee Notes accompanying the 1966 amendment to 23(b)(2) state that ìaction or inaction is directed to a class within the meaning of this subdivision even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general application to the class.î
Thus, if there is a policy that is generally applicable to the entire class, it need not be opposed by all members of the class or even affect all members of the class. As long as the policy is applicable to all members of the class, this element is satisfied. Courts have interpreted this requirement to mean that the party opposing the class must have acted either in a consistent manner toward class members, such that the defendantís actions are part of a pattern of activity, or in such a way that there is a regulatory scheme common to all class members.
The above Advisory Committee Note highlights another advantage of 23(b)(2). The key inquiry to be made is whether the defendantís conduct would affect all persons similarly situated, such that the defendantís acts apply generally to the whole class. While the normal inquiry regarding a 23(b)(3) class focuses on the effect of the wrongful conduct on each individual class member, the inquiry in a 23(b)(2) class is just the opposite. Under 23(b)(2), it is the conduct of the defendant ñ not the effect of the conduct on the plaintiff ñ that is at issue. A courtís inquiry focuses on the defendantís conduct; individualized facts regarding the plaintiffs are not relevant to whether or not the defendant acted on grounds that are generally applicable to the class.
Because the rule specifies that the party opposing the class must have ìactedî or ìrefused to act,î the plain language of the rule seems to contemplate that the wrongful action has already taken place. However, the Advisory Committee Notes make clear that ìthreatenedî action may also provide a basis for relief. Thus, the injunctive remedy under 23(b)(2) may be used both for past actions or inactions, which plaintiffs seek to stop or mandate, as well as for future actions or inactions, which plaintiffs ask to be stopped or mandated in the future.
B. Final Injunctive Relief
The second basic requirement of class certification under 23(b)(2) is that ìfinal relief of an injunctive nature or a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a wholeî must be appropriate. The plain language of 23(b)(2) makes clear that it is only appropriately used for final injunctive relief, and thus, temporary restraining orders and preliminary injunctions do not qualify.
Injunctive relief may encompass a broad range of conduct that plaintiffs are trying to restrain or mandate. For example, if a governmental entity or private corporation fails ìto perform a legal duty,î such wrongful action is subject to redress under 23(b)(2).
Rule 23(b)(2) class actions were designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a numerous and amorphous class of persons against whom a common policy of discrimination was directed. Nonetheless, the Advisory Committee Notes specify that no limits exist as to the type of actions that may be enjoined under 23(b)(2). The Notes provide examples of proper 23(b)(2) injunctive cases, such as price discrimination by wholesalers against a class of retailers and antitrust violations by patent holders.
Although 23(b)(2) refers to requests for injunctive and declaratory relief, ì[o]nce the conduct of the defendant makes such injunctive or declaratory relief appropriate, the full panoply of the courtís equitable powers is introduced. Thus, the type of injunctive relief to which 23(b)(2) applies becomes extremely broad-based if the term ìinjunctionî is interpreted to mean ìequitable,î as the commentators suggest. Interpreting ìinjunctionî to mean ìequitableî opens up the full array of potential equitable claims, including claims for equitable accounting, disgorgement, restitution, constructive trust, equitable estoppel, and rescission. This reading of 23(b)(2) makes it an extremely valuable and flexible tool, depending on the type of claims being asserted.
For example, the backpay relief for employment discrimination classes under Title VII is generally characterized as equitable restitution rather than legal damages. A claim for damages, of course, may only be pursued under Rule 23(b)(3); a claim for restitution, although having the same effect, is appropriately litigated under 23(b)(2). This doctrine has been firmly embraced by most circuits and has been cited with approval by the United States Supreme Court.
Similarly, 23(b)(2) equitable remedies have been held applicable in securities actions and welfare rights cases. More recently, the Eastern District of Pennsylvania affirmed the equitable remedy of rescission under the Truth in Lending Act in a 23(b)(2) class. Significantly, nothing in 23(b)(2) restricts consumer lawyers from asserting broader equitable remedies, such as equitable accountings, unjust enrichment, or disgorgement. Indeed, the United States Supreme Court, in ruling on what constitutes money damages, as opposed to equitable relief where money is awarded, commented favorably on disgorgement as an equitable remedy in Title VII cases. The Court focused on the broad discretionary power of the trial court to grant equitable remedies.
C. Corresponding Declaratory Relief
The allowance under 23(b)(2) for claims involving ìfinal injunctive relief or corresponding declaratory reliefî raises the question of what type of declaratory relief is allowed to be pursued under its provisions. The Advisory Committee defined ìcorresponding declaratory reliefî as referring to a remedy that, ìas a practical matter. . .affords injunctive relief or serves as a basis for later injunctive relief. This standard has been interpreted to mean that the declaration should correspond to an injunction. While a close nexus exists between injunctive and declaratory relief and while parties seeking a declaration of their rights commonly also seek an injunction, Rule 23(b)(2) does not require both forms of relief to be sought. Thus, class certification may be requested and granted in cases where only declaratory relief is sought.
Although many courts, including the United States Supreme Court, have stated that either injunctive or declaratory relief may be obtained under Rule 23(b)(2), the type of declaratory relief available under 23(b)(2) appropriately turns on the effect of the judicial directive. If the requested relief is a declaration that a statute is unconstitutional or that a business practice is unfair or deceptive, the resulting judicial declaratory directive would have the effect of ìenjoiningî either the enforcement of the statute or the commitment of the offending practice. In such an instance, the effect of the judicial directive is injunctive in nature and therefore, plainly contemplated by Rule 23(b)(2). On the other hand, if the declaration simply lays the basis for a damage award rather than injunctive relief, certification of declaratory relief under Rule 23(b)(2) is not appropriate.
In evaluating how to properly assert a claim for declaratory relief, both federal and state declaratory relief statutes must be reviewed. The Federal Declaratory Judgment Act is the basis for a relatively small number of cases seeking class certification. The Court of Appeals for the Fifth Circuit, one of the few circuit courts to consider the issue, ruled that the substantive statutes underlying a claim for declaratory relief must satisfy the 23(b)(2) criteria in order to qualify as a class under the Declaratory Judgment Act.
An avenue that also should be fully explored, however, is the state declaratory judgment statutes, which may be much broader and more liberal than the corresponding Federal Declaratory Judgment Act. For example, Hawaii law on declaratory judgments is applicable whenever a non-exclusive statutory remedy is given. In an environmental case that the author argued before the Hawaii Supreme Court, the court was asked to construe a provision in the Hawaii Coastal Zone Management statute, which provided that ì[n]othing in this section shall restrict any right that any person may have to assert any other claim or bring any other action. The Hawaii Supreme Court ruled that:
Hawaii Revised Statute [(ìHRSî) section] 205A-6 therefore clearly allowed [the plaintiffs] to bring a generic declaratory action under [HRS section] 632-1 without the need to proceed under [HRS section] 205A-6. Additionally, because [the plaintiffs] petitioned for declaratory relief under [HRS section] 632-1, the sixty-day time limit contained in sec. 205A-6(d) was inapplicable. Accordingly, the circuit court had jurisdiction over [the plaintiffsí HRS section] 632-1 petition for declaratory relief in the instant case.
The significance of this ruling is that the court allowed a separate cause of action that could be asserted beyond the statutory limitations period contained in the Coastal Zone Management statute. Similar opportunities exist under the broad declaratory relief that may be granted under state declaratory judgment acts.
III. Relief Available Under Rule 23(b)(2)
A. Injunctive and Declaratory Relief
Cases involving governmental constitutional challenges, statutory schemes, as well as private actions directed at a protected class have traditionally been the types of actions brought under 23(b)(2). One advantage of bringing a claim under 23(b)(2) is that once liability has been determined, the court has the power to immediately enjoin a defendantís unlawful practices.
Additionally, a grant of injunctive or declaratory relief is beneficial for plaintiffís counsel. The grant of injunctive relief may assist counsel in obtaining attorneyís fees because it provides a strong basis for permitting all requested attorneyís fees.
B. Monetary Damages
The Advisory Committee Notes make clear that damages are recoverable under Rule 23(b)(2), but such relief must neither be ìexclusiveî nor ìpredominate.î Specifically, the Committee states:
This subdivision is intended to reach situations where a party has taken action or refused to take action with respect to a class, and final relief of an injunctive nature or of a corresponding declaratory nature, settling the legality of the behavior with respect to the class as a whole is appropriate. . . .The subdivision does not extend to cases in which the appropriate final relief relates exclusively or predominately to money damages.
As mentioned above, the early use of Rule 23(b)(2) consisted primarily of civil rights cases. Monetary damages were limited to elements of damage that were restitutionary and therefore, equitable in nature, such as back pay. Because of this, monetary damages could be obtained in 23(b)(2) cases.
The guidance as to what constitutes ìfinal relief relat[ing]. . . predominately to money damagesî is conflicting. Some courts follow the language of the Advisory Committee Notes, stating that so long as monetary relief is not the exclusive or predominant remedy sought, a 23(b)(2) class seeking money damages is appropriate. Other courts permit the award of class-wide monetary relief by holding that such relief is ancillary to the primary prayer for injunctive relief. This issue is of particular interest in court rulings on medical monitoring relief, with courts issuing conflicting rulings on whether medical monitoring is equitable or legal in nature.
Prior to 1991, civil rights actions provided for 23(b)(2) class certification so long as the monetary relief was not the exclusive or predominant relief sought. Judges often divided the trial of these cases into two stages ñ liability and equitable or damages relief. Civil rights attorneys and their clients gained enormous practical benefits under Rule 23(b)(2). They avoided both the stricter certification requirements of predominance and superiority under 23(b)(3) and the potentially costly notification requirements.
Since the 1991 Civil Rights Act amendments, which allowed for compensatory emotional distress and punitive damages under Title VII, however, some courts have ruled that unless the damages flow directly from the injunction, Rule 23(b)(2) is not available. Instead, plaintiffs must meet the burdensome requirements of predominance and superiority under 23(b)(3), as well as comply with the mandatory notice requirements.
C. Circuit Court Decisions on Whether Monetary Damages Predominate
The Fifth Circuit has imposed the most stringent restriction on obtaining monetary damages under a 23(b)(2) class based upon the 1991 Civil Rights amendments. While the Fifth Circuit decision grew out of the expanse of statutory remedies, its decision has implications in other potential (b)(2) litigation.
In Allison v. Citgo Petroleum Corp., the Fifth Circuit ruled that money damages were not appropriately awarded under 23(b)(2) unless such damages are ìincidental to the requested injunctive or declaratory relief. In such a situation, the damages should be similar in nature to a group remedy and able to be calculated on an objective basis that requires no further hearing or inquiry into the circumstances of each individual class memberís situation. In 1999, the Court of Appeals for the Seventh Circuit issued a similar decision and adopted the Fifth Circuitís reasoning.
Most recently, however, the Court of Appeals for the Second Circuit rejected the Fifth and Seventh Circuitsí analysis by holding that the more appropriate test is an ad-hoc balancing test that focuses on whether the injunctive or declaratory relief predominates. One requirement under the Second Circuitís test is that the injunctive or declaratory relief sought must be both reasonably necessary and appropriate if the plaintiffs were to succeed based on the merits of the case.
Although both the Seventh and Second Circuits reached different results as to which standards should apply to determine whether money damages predominate, both courts outlined several creative means by which 23(b)(2) may be used in place of, or in conjunction with, a 23(b)(3) damages class. Several of these alternatives are outlined in the following section.
IV. Innovative Uses of Rule 23(b)(2)
As discussed above, courts have identified several innovative strategies for using 23(b)(2) that afford significant opportunities for creative consumer lawyers. These creative strategies are as follows: 1) 23(b)(2) certification with court-ordered notice and opt-out requirements; 2) hybrid, also called split or divided, certification; 3) sequential certification; and 4) partial certification. These options make the availability of 23(b)(2) attractive in numerous factual and legal circumstances. Such situations include consumer actions under federal Truth in Lending Act (ìTILAî), Fair Debt Recovery and Collection Act (ìFDRCAî) and consumer actions under state unfair and deceptive trade practices (ìUDAPî) statutes. Consumer lawyers use these and similar statutes to enjoin wrongful conduct, as well as compensate consumers who have suffered pecuniary injury. Using strategies which initially focus on stopping the wrongful conduct through injunctive or declaratory relief may achieve significant results early in the litigation and may set the stage for a later monetary damages claim.
A. 23(b)(2) Certification with Court-Ordered Notice and Opt- Out
One option that may be considered in a 23(b)(2) class is providing for notice and opt-out for the class, while still seeking certification under 23(b)(2). Courts have held that it is within the district courtís discretion to order pre-judgment notice and an opportunity to opt-out in 23(b)(2) cases. This approach has the advantage of seeking certification under the less stringent 23(b)(2) standards, while preserving a class memberís due process or Seventh Amendment right to a jury trial in cases involving monetary damages. Providing notice and offering an opt-out preserves an individualís right to jury trial and right to proceed individually. While the propriety of providing notice and opt-out in a Rule 23(b)(2) class is unsettled and not yet ruled upon by the Supreme Court, obtaining certification under the 23(b)(2) standards may be a beneficial option that should be carefully considered by plaintiffsí counsel.
B. Hybrid Certification
A second approach is hybrid certification, which means that a class is certified for liability purposes as a 23(b)(2) class, while a separate certification is pursued under 23(b)(3) for damages. Hybrid certification has the advantage of deferring notice and opt-out until a finding of liability has been made. Shifting the costs of notification to the defendant may be possible at that stage, since liability has been established. Thus, many suits may be feasible that plaintiffsí attorneys would have found too cost-prohibitive to bring under 23(b)(3) otherwise. Another advantage is that injunctive and declaratory relief may be available under 23(b)(2) in order to stop the defendantís challenged practices immediately, before the issue of damages is determined. In practice, to pursue hybrid class certification, plaintiffsí attorneys should file a separate motion to bifurcate the 23(b)(2) claims from the 23(b)(3) claims, while simultaneously filing a motion for class certification.
C. Sequential Certification
Sequential certification refers to two related actions being brought in the same lawsuit. This usually occurs by the certification of 23(b)(3) claims at the conclusion of the liability issues under 23(b)(2). This approach may be applicable where the prospects for certification of a 23(b)(3) class are remote or where 23(b)(3) class certification would be impossible. For example, a 23(b)(2) action could be brought on behalf of a class of prisoners who are wrongfully detained after either acquittal or dismissal of the charges. A challenge to the governmental policy of detention is appropriately pursued under the 23(b)(2) remedy for all those who have been or will be detained. After the policy has been enjoined, a separate action under 23(b)(3) may be brought to obtain monetary relief for those wrongfully retained after acquittal. This action may be in the same lawsuit or in a separate action. The initial motion for class certification should describe this sequential certification strategy for the court.
D. Partial Certification
An option closely related to hybrid certification is partial certification to determine a particular issue. Courts have the power to certify classes for particular issues under Rule 23(c)(4)(a), which provides that ìan action may be brought or maintained as a class action with respect to particular issues.î This approach has been validated by the Second Circuit, in its ruling that a trial court erred in failing to certify a 23(b)(2) class for determining the issue of whether a defendantís conduct constituted a practice or pattern of activity for the purposes of an employment discrimination statute. The primary difference in that case is that the pattern or practice claim required the jury to resolve a disputed factual issue. This issue formed the basis for subsequent injunctive relief, thus preserving the right to trial by jury. The focus on the defendantsí conduct under a 23(b)(2) certification and the use of certification for resolution of a particular issue allows greater flexibility in litigating the claim and potentially may be easier for the court to initially resolve a dispositive issue in the case.
V. Case Example: Kalima v. State of Hawaii
Kalima v. State of Hawaii is a sequential class action filed on behalf of 2,700 Native Hawaiians who alleged a breach of trust by the State of Hawaii in its administration of a land program. Although the factual and legal claims in Kalima v. State of Hawaii are unique, this case illustrates one way in which Rule 23(b)(2) may be used in an innovative manner.
The case was appropriate for the prosecution of two separate but interrelated class actions. The first claim was brought under 23(b)(2) and was certified on behalf of all Native Hawaiians who filed a claim with an administrative panel and suffered a breach of trust violation. The second and subsequent claims were brought under 23(b)(3) for Native Hawaiian claimants who waited an unreasonable amount of time to be awarded a homestead.
A. Background
Native Hawaiians, kanaka maíoli, are the only Native American group not recognized by the federal government as an indigenous native group. As a result, Native Hawaiians have no independent government and no independent land base. Instead, in 1921, Congress established a Hawaiian Home Lands Trust, designed to rehabilitate Native Hawaiians by giving them residential and farm lots owned by the government, but leased to the natives. When Hawaii became a state in 1959, the State of Hawaii assumed the responsibility of the trust.
Native Hawaiians were unable to obtain redress for the stateís breaches of the trust until 1991, when the state waived its sovereign immunity and granted Native Hawaiians the right to seek monetary damages through jury trials. Before a lawsuit could be filed, however, the claimants had to file their claims with a claims panel, which then rendered non-binding advisory opinions to the claimants.
Over 2,700 Native Hawaiians submitted claims to the panel, more than half of which involved those who waited an unreasonably long period of time to be awarded their homestead. By the time the claims panel sunsetted in 2000, it had processed only two of the 2,721 claims, and thus, only those two were eligible to sue directly in court. The State of Hawaii took the position that because the claims panel had not processed the remaining claims, the preconditions to file suit were not fulfilled, and therefore, the stateís waiver of sovereignty immunity was rescinded.
B. Sequential Certification
Although a majority of the 2,721 claims were similarly based on natives being forced to wait an unreasonably long period of time for their homestead, forty percent of the claims were individual claims for construction deficiencies, failure to comply with infrastructure requirements, and other similar individualized claims. In order to proceed as a class on behalf of all claimants, plaintiffsí counsel devised a dual certification model. The complaint was filed with two separate claims on behalf of two separate classes. The first claim sought certification of a 23(b)(2) class for declaratory relief, which requested the courtís declaration that the State could not object to lawsuits filed by the claimants on the basis that the claims panel failed to complete its work. The relief sought was final injunctive relief. The court was being asked to rule, through a declaration, that all claimants had the right to sue. The second claim sought monetary damages on behalf of a 23(b)(3) class.
The court found the existence of the 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation and also found that the requirements necessary for a 23(b)(2) class were met. The court held that the State had ìacted. . .on grounds generally applicable to the classî by disputing and refusing to recognize the right of all but two of the claimants to pursue a lawsuit for damages. The plaintiffs simultaneously moved for summary judgment on their claim that they had the right to sue for money damages in a trial court based on the Hawaii Declaratory Judgment Act. The court agreed, granting the plaintiffsí motion.
C. Advantages of Sequential Certification
The primary advantage of sequential certification in this case was the ability to obtain broad equitable relief, the right to sue, on a class-wide basis for breach of trust claims, which in some cases were highly individualized. Approximately forty percent of the claimants asserted breaches of trust which likely could not be proven on a class-wide basis. These individuals and families asserted construction claims, infrastructure claims, and other real and personal property claims unique and unsuitable for class treatment. However, the one claim that they did have in common, both among themselves and with the second group of claimants who waited an unreasonable length of time to be awarded a homestead, was the right to sue. Once having secured the right to sue through the 23(b)(2) class, these claims could be litigated individually.
The second group of claimants, which comprised about sixty percent of the class, waited an unreasonable length of time to be awarded a homestead. This group had both common liability and damage claims, which are being pursued on a class-wide basis under Rule 23(b)(3). Thus, the case secured a much broader injunctive impact by its division into two separate types of claims, which were litigated separately. Sequential certification also took advantage of the easier 23(b)(2) standard for certification, which granted equitable relief to a broader class of persons than those who had injuries appropriate for class-wide treatment.
VI. Conclusion
Congress enacted Rule 23(b)(2) to establish a procedure to resolve actions involving primarily either injunctive, declaratory, or both types of relief for a large class. As such, the rule is a natural instrument of choice for challenges in the arenas of pattern or practice employment discrimination, system-wide problems in welfare and benefits cases, fair debt practices, constitutionality of statutes or programs, and many others. Even monetary relief may be sought under 23(b)(2) if it is equitable in nature or incidental to the requested injunctive or declaratory relief.
Rule 23(b)(2) affords consumer lawyers many advantages in class actions suits. First, because of the nature of 23(b)(2), the procedural requirements are much less stringent than those of 23(b)(3), namely because of the lack of notice and opt-out requirements. By avoiding the costly notice requirements, consumer lawyers are able to bring claims that would have been either too risky or cost-prohibitive under 23(b)(3). Second, Rule 23(b)(2) affords consumer lawyers the opportunity to obtain significant class-wide relief without having to meet the more stringent requirements of predominance and superiority. Third, proceeding under 23(b)(2) allows the court to order injunctive relief immediately upon a finding of liability, thereby instantly stopping a defendantís unlawful practice. Finally, because the analysis under 23(b)(2) requires the court to focus on the defendantís conduct, the facts of the plaintiffsí individualized cases are minimized, which may be helpful in fair debt, prisoner, and other cases where the plaintiffs may not be perceived as ìinnocent.î
The 1991 Title VII amendments allowing monetary damages in civil rights cases had the practical result of removing many Title VII cases from the pure 23(b)(2) analysis. In order to cope with this change in law, courts have begun devising innovative uses of 23(b)(2), from which consumer lawyers and consumers alike can greatly benefit. Such innovative uses include 23(b)(2) certification with court-ordered notice and opt-out, 23(b)(2) and (b)(3) hybrid certification, partial certification under 23(b)(2), and sequential certification. Using these creative case structures, consumer lawyers can make the most of the less stringent requirements of 23(b)(2) for determining liability, even in cases where individualized monetary damages are sought. These strategies allow consumer lawyers to bring class litigation that they may not have the resources to bring under a pure 23(b)(3) action.