|Jottings By An Employer's Lawyer|
Tuesday, March 08, 2005
Haven't Read Enough About Class Actions Lately? Professor Posner Has Another Lesson
whether certification under Rule 23(b)(2) is proper when, though injunctive or declaratory relief is sought rather than damages, individual hearings may be necessary to determine causation and hence liability.The case arose as a challenge by former Allstate agents who quit, allegedly under pressure as Allstate was trying to convert from sales agents to independent contractors. The class was seeking a finding that Allstate had a policy of harassing agents to get them to quit to keep them from getting benefits they would have been entitled to under an ERISA plan if they had been fired.
If the answer is important to you, you really need the opinion, but for those looking for the quick answer, the Court ultimately dismissed the class certification which had been granted under Rule 23(b)(2), saying if class certification were proper it would be under Rule 23(b)(3). The reason - under Rule 23(b)(3) members can opt out if they choose to go it on their own, an option not available under Rule 23(b)(2). Since what was really being sought was declaratory relief about Allstate's policy, the Court found when:
the suit is for declaratory relief, the effect of the declaration on individual class members will vary with their particular circumstances, they should be given notice of the class action so that they canThat would require a Rule 23(b)(3) procedure or a bastardized version of Rule 23(b)(2) and although some courts had suggested the possibility of such a proceeding, this Court found no need to go there when such a proceeding would be "complicated and confusing—unnecessarily so, given the ready availability of the 23(b)(3) procedure."