Issues in Employment Class Action Litigation

by Stephen Bough1 and Dirk Hubbard2

Due to the complexities of employment law practice, most attorneys who do not specialize in employment law refer even individual employment cases to lawyers who do. This is especially true of employment class actions which circuit courts recognize as an excellent means to eradicate widespread or institutional-scale discrimination.3 Additional factors, such as the extraordinary volume of discovery, the costs of complex litigation, the intricacies of Federal Rule of Civil Procedure 23 and the special attention required by the federal courts, steer most lawyers away from handling an employment class action suit.4

For those practitioners who either handle or refer employment cases, several issues should be considered when evaluating and litigating a putative employment class action. This article discusses the issues in the following contexts: (I) employment law in federal courts; (II) the general requirements for a class action; (III) the type of class action; and (IV) separate trials for liability and damages.

I. Employment Law in Federal Courts

Employment law, in comparison to torts or contracts, is a relatively new area of law. The law continues to change with every United States Supreme Court session.5 Under the federal statutes, employment discrimination is prohibited by Title VII.6 Missouri prohibits employment discrimination in the workplace under the Missouri Human Rights Act (MHRA).7

The vast majority of employment cases are brought in federal courts.8 In Missouri, filing in federal court brings with it the right to a jury trial and punitive damages. If an employment discrimination case is tried in state court, the plaintiff does not have the right to a jury trial.9 Federal courts, however, hold that a jury trial is proper since the MHRA allows for money damages.10 The MHRA, like Title VII,11 allows for punitive damages.12 As long as the plaintiff states causes of action under both Title VII and the MHRA, the possibility for a jury trial and punitive damages in federal court exists.

Missouri employment lawyers almost always file a federal complaint alleging violations of both Title VII and MHRA in order to take advantage of the constitutionally protected right to a jury trial and Missouri's punitive damages.13 The Missouri Human Rights Act allows for punitive damages and state law causes of action can be pled as well. Additionally, Title VII's caps do not apply to MHRA claims.14

All employment discrimination cases involve certain inherent discovery problems. Even without a class action, employment cases often require difficult and extensive discovery. Employment data and statistical information must be gathered in a pattern and practice employment case. An area that requires judicial intervention is the scope of previous discrimination claims. Discovery of prior discrimination claims must be limited in time and geographic or business region. However, the defendant's view of a reasonable limitation is often different than the plaintiff's viewpoint on reasonableness.

Almost every employment discrimination claim involves some element of a class action.15 "[R]acial discrimination is by definition class discrimination."16 However, not every employment case should be considered for a class action.

II. General Class Action Requirements

Since the Federal Rules of Civil Procedure control all actions in federal court,17 Rule 23 governs all class actions. Federal Rule of Civil Procedure 23 sets forth the basic requirements for a class action. Rule 23(a) sets the minimums for any class and Rule 23(b) details three different types of class actions. The four requirements of Rule 23(a) are often described as (1) "numerosity," (2) "commonality," (3) "typicality, and" (4) "adequacy of representation."18 Although district courts are to make a certification determination as early as possible,19 the Supreme Court has directed district courts that all class actions, including Title VII causes of action, should be subject to a "rigorous analysis" of the Rule 23(a) prerequisites.20 Even under the rigorous Rule 23 analysis, courts frequently find that employment cases meet the requirements for class certification.

In ruling on a motion to certify, the federal trial judge must make specific findings regarding each of the four requirements of Rule 23(a). Still, the court must accept the plaintiff's factual allegations as true21 and "may not inquire into the merits of the underlying case."22 If the district court has any doubts regarding class certification, the court should err in favor of certification.23 Since a court can always decertify or alter the class, some courts have held that the requirements for certification are to be liberally construed.24

The first requirement under Rule 23(a) is numerosity.25 In essence, the class must be so large that the "joinder of all members is impracticable."26 The Eighth Circuit has clarified the numerosity requirement by holding that a district court should examine the number of persons in a proposed class, the nature of the action, the size of the individual claims, the inconvenience of trying individual suits, and any other factor relevant to the practicability of joinder.27 One district court has held that 35 plaintiffs were numerous.28 Another has noted that 10 plaintiffs did not meet the requirement.29 The "impracticable" requirement of Rule 23(a)(1) does not mean that the joinder of all plaintiffs is impossible. The class representative need only show that joining other class members is very difficult.30

Commonality is the second requirement that the plaintiff has the burden of proving in an employment discrimination class action.31 The rule, and case law, require only that common questions of law or fact exist. Commonality is not required on every question raised in a class action.32 In fact, the defendant's actions need not affect each class member in the same manner.33 Instead, Rule 23(a)(2) is met when the legal question "linking the class members is substantially related to the resolution of the litigation."34 The Supreme Court has held that the plaintiff must make a "specific presentation" that "the named plaintiff's claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence."35

The third prerequisite is that of typicality, requiring that the named parties' claims are typical of the class.36 Under the typicality analysis, factual variations in the individual claims will not normally preclude class certification if the claim arises from the same event or course of conduct as the class claims, and gives rise to the same legal or remedial theory.37 The Eighth Circuit Court of Appeals has held that the typicality requirement is easily met so long as the named representative has claims similar to the class members.38 However, the Supreme Court has rejected a lower court's "across-the-board" rule that an employee who suffers racial discrimination in any employment practice automatically may maintain a class action for all discriminatory employment practices.39 Although the Court agreed that "racial discrimination is by definition class discrimination," the Court also noted that one plaintiff's discrimination is not always typical of another individual's treatment.40

The final requirement, adequacy of representation, is designed to ensure that the named representative "will fairly and adequately protect the interests of the class."41 This requirement is actually a two-pronged analysis: (1) whether plaintiffs' counsel is qualified, experienced and generally able to handle the litigation; and (2) whether the named representatives' interests conflict with the class.42 The Supreme Court has described the adequacy requirement as meaning "a class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members."43

III. Type of Class Action

In addition to the Rule 23(a) requirements, an employment class action must also fit into one of the three Rule 23(b) subdivisions. The three types of class actions under Rule 23(b) are:

  1. 23(b)(1): Separate actions might adversely affect the parties;
  2. 23(b)(2): Injunctive or "declaratory relief"; and
  3. 23(b)(3): Common questions of law or fact predominate over individual questions.44
For purposes of employment law, 23(b)(1) actions are rarely brought and will not be discussed herein. Employment discrimination class actions, however, are often certified under Rule 23(b)(2) since many Title VII plaintiffs seek injunctive relief in the form of a court-ordered change in an employment practice. The 23(b)(3) class has been referred to as the poor man's class action because it was designed in part to ensure the vindication of the rights of people who would be without the individual strength to bring their opponents into court.45 Therefore, (b)(3) common question class actions also fit into the employment law causes of action. A key difference for class members is that the injunctive class action of (b)(2) is typically thought of as not allowing class members to opt-out, while Rule 23(c)(2) specifically states that the (b)(3) common question class action must allow for class members to opt-out.46

Split in the Circuits Over (b)(2) and Monetary Relief

Courts across the country are split over whether the (b)(2) injunctive relief class action or the (b)(3) common question class action is most appropriate for employment law claims. A (b)(2) class requires only a showing that the employer "has acted or refused to act on grounds generally applicable to the class," while a (b)(3) class requires a showing that these common issues "predominate."

The key distinction that some courts have made with regard to the appropriateness of certifying a (b)(2) injunctive relief class or a (b)(3) common question class is monetary relief. The origin of this debate can be found in the Advisory Committee's Notes to Rule 23. The Notes to the 1966 amendments state that (b)(2) "does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages." However, the next paragraph in the advisory notes seems to make this provision less applicable to civil rights employment cases when it observes that "[i]llustrative [of appropriate (b)(2) class actions] are various actions in the civil-rights field where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of specific enumeration."

District trial courts and circuit courts of appeal have addressed the (b)(2), (b)(3) distinction in a variety of ways. Chief Judge Moran in the Northern District of Illinois wrote that

[t]he more individualized the damages are the less likely that the class should be certified under (b) (2). If a class action primarily seeks money damages, it should not be certified under (b) (2) but should, instead, be designated a Rule 23 (b) (3) action.47

Chief Judge Moran, in denying (b)(3) certification, relied on the Seventh Circuit's holding that the Rule 23(b)(3) certification is proper when the plaintiffs are primarily seeking monetary relief.48

The Third Circuit has also held that a (b)(2) class action is not appropriate when the final relief "relates exclusively or predominantly to money damages."49 Although not in an employment setting, the Tenth Circuit has upheld a district judge's refusal to certify a Rule 23(b)(2) injunctive relief class action due to money damages being the primary relief sought.50 Finally, the Fifth Circuit has recently affirmed the denial of Rule 23(b)(2) certification due to money claims predominating over injunctive relief.51

Other courts have come out on the opposite side of the debate. For example, Judge Spencer of the Eastern District of Virginia certified an employment law class action under the injunctive relief subsection of Rule 23(b)(2).52 Judge Spencer noted that if a court is faced with certification under either (b)(2) or (b)(3), "courts prefer (b)(2) certification."53 The defendant, in arguing against certification, claimed that the requested monetary relief would dominate the proceedings.54 The court then held that even though Rule 23(b)(2) only refers to injunctive relief, a request for monetary relief would not defeat (b)(2) certification. "Indeed, Rule 23(b)(2) certification is typically granted in employment discrimination cases, even where monetary damages are requested."55

On the other side of the country, Judge Illston of the Northern District of California, in Butler v. Home Depot, Inc., specifically addressed the split in the circuits in an order certifying an employment class action.

In the present case, plaintiffs' claims for damages are secondary to their primary claim for injunctive relief to prohibit gender biased employment practices. The fact that plaintiffs seek damages in addition to declaratory and injunctive relief does not preclude certification under Rule 23(b)(2). Probe v. State Teachers' Retirement System, 780 F.2d 776, 780 (9th Cir. 1986). It is "well established . . . that employment discrimination suits involving such individual-specific awards of lost back pay may be maintained as (b)(2) class actions . . . ." Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 453, citing Probe, 780 F.2d at 780.56

In another Home Depot case, Griffin v. Home Depot, Inc., this one in the Eastern District of Louisiana, the district court addressed the (b)(2) - (b)(3) distinction.57 The defendant argued that the punitive damages allowed for in the Civil Rights Act of 1991 precluded class certification under Rule 23(b)(2).58 The court specifically held that the 1991 amendments "do not preclude the possibility of a class action" in employment discrimination cases.59 Although the court did not make a specific ruling on the bifurcation of the trial, the judge approved a two-phase approach and indicated that "the issues of manageability and judicial economy do not preclude a class action here under Rule 23(b)(3)."60

The Fourth Circuit on two occasions approved of (b)(2) injunctive relief class actions where monetary relief is sought. In Robinson v. Lorillard Corp., the court held that monetary relief was appropriate in class actions under Rule 23(b)(2).61 The Fourth Circuit, in the case of In re A.H. Robins Co., Inc., attacked the split in the circuits head-on by holding that "the Advisory Committee's Note suggestion that suit for damages is 'not appropriate' for class certification has proved unworkable and is now increasingly disregarded."62 The Ninth Circuit, as well as numerous district courts within that circuit, has held that the fact that plaintiffs seek damages in addition to declaratory and injunctive relief does not preclude certification under Rule 23(b)(2).63

This disagreement in the circuits leads to several problems that are enhanced because employment class actions often cross the artificial boundaries that define the circuits. Until the Supreme Court resolves the split, practitioners and litigants are faced with continued confusion on a key class action issue.

Choosing (b)(2) injunctive relief or (b)(3) common question

As previously mentioned, one of the key distinctions between the two types of class actions is the opt-out provision. The (b)(3) common question class action specifically requires a court to allow members to opt-out of the suit.64 There is no similar mandate for (b)(2) injunctive relief class actions.

By not allowing a class member to opt-out of the suit, a potential problem results. From the defense viewpoint, employees who are happily employed and have not been discriminated against could be forced to sue the defendant. The class representative, however, would argue that the injunctive relief protects all class members from future discrimination. Additionally, injunctive relief has the same effect on an employee regardless of whether they stay in the class. Furthermore, plaintiffs would argue that the employer is in a superior position of power and could possibly intimidate employees into opting-out to save their jobs. The opt-out problem should be considered by plaintiffs' counsel prior to filing a class action lawsuit.

Other considerations for plaintiffs' counsel when evaluating which of the two types of employment class actions to pursue are the additional requirements of a (b)(3) common question class action. First, the plaintiff must show that common questions of law and fact predominate over individual issues, as opposed to merely existing. In addition, the plaintiff must prove that a class action is the superior method for resolving the claims.65 Rule 23(b)(3) sets out the following four additional factors to consider when determining if a class action is superior to other methods:

  1. The interest of individual members in controlling the litigation;
  2. The extent of any currently pending litigation;
  3. The "desirability or undesirability of concentrating the litigation" in a single forum; and
  4. The difficulties in managing a class action.66
For plaintiffs, Rule 23(b)(3)'s requirement of predominance and superiority make the Rule 23(b)(2) injunctive relief class action more attractive. Rule 23(b)(2) simply requires that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." The Third Circuit had held that "this requirement is almost automatically satisfied in actions primarily seeking injunctive relief . . . . What is important is that the relief sought by the named plaintiffs should benefit the entire class."67

Given the problems with opt-outs and the additional requirements of Rule 23(b)(3) common question certification, many class actions are brought under Rule 23(b)(2) injunctive relief.

Possible Solutions

Missouri is different from most states in that the Missouri Human Rights Act does not allow for a jury trial, but it does allow for punitive damages. With the availability of punitive damages, the monetary relief issue comes up in every employment class action. As such, the (b)(2) injunctive relief-(b)(3) common question debate leaves federal courts in Missouri squarely in the middle of the split in the circuits.68

One possible solution could be to certify the class under both subdivisions. The Court of Appeals for the District of Columbia did just that in Eubanks v. Billington.69 The court ordered the certification under both (b)(2) and (b)(3) - - the hybrid approach.70 By certifying both a (b)(2) class for injunctive relief and a (b)(3) class for monetary relief, plaintiffs are afforded the protection of being able to pursue damage claims. Judge Nanette K. Laughrey of the United States District Court for the Western District of Missouri recently approved such a procedure in Turner v. Torotel, Incorporated.71 In Turner, Judge Laughrey certified a Rule 23(b)(2) class action for a bifurcated trial on liability and punitive damages in Phase I and individual damages in Phase II. A subsequent order went on to state that if the plaintiffs were successful during Phase I, the court would revisit the Rule 23(b)(3) certification issue. Judge Carol E. Jackson from the Eastern District of Missouri certified a 23(b)(2) class action only for liability and injunctive relief.72

Obviously, the opt-out issue weighs heavy on the minds of all parties and the judge in certification proceedings. One potential resolution to the problem is to allow (b)(2) injunctive relief class action members to opt-out of the (b)(3) common question portion of the hybrid certification. Although Rule 23 does not specifically allow for this action, the rule also does not specifically prohibit it either. The solution has been met with approval in some circuits.73 Another possible answer toyed with by some circuits is to allow for a Rule 23(b)(2) opt-out.74

Regardless of how the Missouri federal courts resolve the difficult issues of how to certify employment law class actions, the split in the circuits will eventually require Supreme Court resolution. Rule 23 may be in need of revision in order to address the many problems courts have encountered. Add to the equation the numerous efforts to amend the Missouri Human Rights Act to allow for a right to a jury trial, and class action employment law in Missouri is in a state of flux.

IV. Separate Trials

The trial of employment class action lawsuits is occasionally divided into two phases: Phase 1, regarding liability along with class-wide damages and injunctive relief; and Phase 2, regarding individual damages.75 The concept makes perfect sense because it allows the jury to hear liability and common issues first. If there is no liability, there would be no need for the jury to consider evidence regarding individual damage issues. The leading treatise on class actions, Newberg on Class Actions, agrees that bifurcation is the preferred method for handling employment class actions.76

The bifurcation of employment class action trials has met with acceptance in Missouri. For example, Judge Laughrey ordered a bifurcated proceeding, although the case settled prior to trial. Her analysis thoroughly addresses the burden of proof in the first phase of a bifurcated trial.

In the liability phase of the proceedings, the plaintiff has to ultimately "prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." International Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977). He has the burden of showing, by a preponderance of the evidence, that a pattern or practice of differential treatment is the company's "standard operating procedure -- the regular rather than the unusual practice." Id. A plaintiff usually seeks to satisfy such burden by producing statistical evidence demonstrating disparities in treatment between individuals within the protected class from similarly situated individuals outside the protected class. Such statistical evidence is usually supplemented with evidence and testimony relating to individual incidents of discrimination. Craik [v. Minnesota State Univ. Bd.], 731 F.2d [465], 470 [(8th Cir. 1984)]. The burden then shifts to the defendant to attempt to show that the plaintiff's "proof is either inaccurate or insignificant." Id. (quoting Teamsters, 431 U.S. at 360). . . . If the defendant is successful in meeting its burden, the burden shifts back to plaintiff to persuade the trier of fact that the defendant's evidence is inaccurate, or otherwise "unworthy of credence." Coates v. Johnson & Johnson, 756 F.2d 524, 542-45 (7th Cir. 1985).77

Judge Jackson in the Eastern District of Missouri has adopted a similar position. The court in Morgan v. UPS certified a Rule 23(b)(2) bifurcated class action in which the issues of injunctive relief and liability were separated from the damages phase.78 Judge Jackson noted that the court would reconsider the certification of damages as a Rule 23(b)(3) class action.79

As demonstrated by Judge Laughrey's and Judge Jackson's orders, the bifurcated trial works extremely well with the hybrid class action (a 23(b)(2) injunctive class action and a 23(b)(3) common question class action). The court can certify a 23(b)(2) injunctive class action for the first portion of the bifurcated trial. If liability against the defendant is determined by the jury, the court can revisit the 23(b)(3) common question class action for individual monetary damages for the second phase of the trial.

A concern among both plaintiff and defense lawyers is that separate juries could be deciding essentially the same issues. This issue can be resolved by the judge making the 23(b)(3) certification immediately following the jury finding in Phase 1. The immediate certification and trial of Phase 2 eliminates any Seventh Amendment-separate juries issue.

V. Conclusion

Employment class action remains one of the most complex, confusing and changing areas of federal practice. Recent experience, however, demonstrates that the class action device remains an effective tool to remedy discrimination. As the field continues to grow and change, practitioners in the employment class action field must grow and change as well.

© 2000, Stephen R. Bough and Dirk Hubbard

Endnotes

1 Mr. Bough is an associate at Shamberg, Johnson & Bergman, Chartered, in Overland Park, Kansas. Prior to joining the firm, he was a law clerk to Judge Scott O. Wright, United States District Judge in the Western District of Missouri. His practice is focused on products liability, medical malpractice and class action litigation. He is licensed in Missouri and Kansas. 2 Mr. Hubbard is a shareholder at Klamann & Hubbard, P.A., of Overland Park, Kansas. The firm's practice is devoted to handling complex litigation, including employment, insurance, environmental, consumer and securities class actions. The firm also handles asbestos litigation.

3 Jenkins v. United Gas Corp., 400 F.2d 28, 34 & n. 14 (5th Cir. 1968).

4 These factors are especially applicable to plaintiff's firms. Furthermore, the experience and adequacy of plaintiffs' counsel are called into question as an element under Federal Rule of Civil Procedure 23(a)(4).

5 See Burlington Industries, Inc., v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).

6 42 U.S.C. §§ 2000e, et seq. (1994). Employment discrimination is also prohibited under the Americans with Disabilities Act ("ADA")(42 U.S.C. §§ 12101, et seq. (1994)) and the Age Discrimination in Employment Act ("ADEA")(29 U.S.C. §§ 621-634 (1994)).

7 Sections 213.055 and 213.070, RSMo Supp. 1998.

8 Even if the case was filed in state court, defendants typically remove the case to federal court.

9 E.E.O.C. v. HBE Corp., 135 F.3d 543, 551 (8th Cir. 1998).

10 Gipson v. KAS Snacktime Co., 83 F.3d 225, 230 (8th Cir. 1996).

11 42 U.S.C. § 1981a(b)(1)(2) (adding punitive damages under The Civil Rights Act of 1991).

12 Burnett v. Griffith, 769 S.W.2d 780, 787 (Mo. banc 1989).

13 In 1998, the Missouri legislature failed to pass an amendment to the Missouri Human Rights Act that would have allowed for the right to a jury trial. The 1999 session has once again been faced with the issue of whether Missouri Human Rights claimants should enjoy the jury trial right on their claims.

14 Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568 (8th Cir. 1997).

15 General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).

16 Id.

17 Hanna v. Plumer, 380 U.S. 460, 473-74 (1965).

18 Griffin v. Home Depot, Inc., 168 F.R.D. 187 (E.D. La. 1996).

19 Many local rules require plaintiffs to file their motion for certification shortly after the action commences.

20 General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161 (1982).

21 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974).

22 Griffin v. Home Depot, Inc., 168 F.R.D. 187, 189 (E.D. La. 1996) (citing Heartland Communications, Inc. v. Sprint Corp., 161 F.R.D. 111 (D. Kan. 1995)).

23 Eisenberg v. Gagnon, 766 F.2d 770, 785 (3d Cir. 1985).

24 In re A. H. Robins Co., Inc., 880 F.2d 709, 740 (4th Cir. 1989).

25 Fed. R. Civ. Pro. 23(a)(1).

26 Amchem Prods. v. Windsor, 521 U.S. 591 (1997).

27 Paxton v. Union Nat'l Bank, 688 F.2d 552, 559 (8th Cir. 1982).

28 Markman v. White, 171 F.R.D. 217, 221 (N.D. Ill. 1997)(the found persuasive that the class members resided in different states).

29 Association for the Preservation of Freedom of Choice, Inc. v. Wadmond, 215 F. Supp. 648 (S.D. N.Y. 1963).

30 7A Charles Alan Wright et al., Federal Practice and Procedure: § 1762 (2d ed. 1986).

31 Fed. R. Civ. Pro. 23(a)(2).

32 Deboer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995).

33 Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal. 1994)(citation omitted).

34 American Fin. Sys., Inc. v. Harlow, 65 F.R.D. 94, 107 (D. Md. 1974).

35 General Tel. Co. of Southwest, 457 U.S. at 157-58 n. 13 (1982).

36 Amchem Prods., 521 U.S. 591 (1997).

37 Donaldson v. The Pillsbury Co., 554 F.2d 825, 831 (8th Cir. 1977).

38 Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996).

39 General Tel. Co. of Southwest, 457 U.S. at 157 (1982).

40 Id.

41 Fed. R. Civ. Pro. 23(a)(4).

42 Weiss v. York Hosp., 745 F.2d 786, 811 (3rd Cir. 1984).

43 Amchem Prods., 521 U.S. 591.

44 Fed. R. Civ. Pro. 23(b)(1) - (3).

45 Amchem Prods., 521 U.S. 591.

46 Fed. R. Civ. Pro. 23(c)(2)(A) ("the court will exclude the member from the class if the member so requests by a specified date.").

47 Gorence v. Eagle Food Centers, Inc., 1994 U.S. Dist. LEXIS 11438 (N.D. Ill. 1994).

48 Simer v. Rios, 661 F.2d 655, 673 n. 31 (7th Cir. 1981).

49 In re School Asbestos Litigation, 789 F.2d 996, 1008 (3rd Cir. 1986).

50 Boughton v. Cotter Corp., 65 F.3d 823, 827 (10th Cir. 1995).

51 Allison v. CITGO Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).

52 McKnight v. Circuit City Stores, Inc., 1996 U.S. Dist. LEXIS 11616 (E.D. Va. 1996).

53 Id.

54 Id. at *7.

55 Id.

56 Butler v. Home Depot, Inc., 1996 WL 421436 at *5 (N.D. Cal. 1996).

57 Griffin v. Home Depot, Inc., 168 F.R.D. 187 (E.D. La. 1996).

58 Id. at 190.

59 Id.

60 Id. at 191.

61 444 F.2d 791, 801 (4th Cir. 1971).

62 880 F.2d 709, 740 (4th Cir. 1989).

63 Butler v. Home Depot, Inc., 1996 WL 421436 at *5 (N.D. Cal. 1996) (citing to Probe v. State Teachers Retirement System, 780 F.2d 776, 780 (9th Cir. 1986); Arnold v. United Artists Theatre Circuit, Inc. 866 F. Supp. 433 (N.D. Cal. 1994)).

64 Fed. R. Civ. Pro. 23(c)(2).

65 Fed. R. Civ. Pro. 23(b)(3).

66 Fed. R. Civ. Pro. 23(b)(3)(A) - (D).

67 Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 58-59 (3rd Cir. 1994).

68 Employment class actions are frequently filed and certified in United States District Courts in Missouri. For example, Judge Scott O. Wright in the Western District of Missouri recently certified a race discrimination case. In Allen v. Thorn Americas, Inc., the parties had reached a tentative settlement agreement and the defendant consented to the Rule 23(b)(3) "common question" certification. 97-1159-CV-W-SOW (W.D. Mo. 1998). In the Eastern District of Missouri, Judge Jackson has certified a bifurcated 23(b)(2) "injunctive relief" race discrimination class action. Morgan v. United Parcel Service of America, Inc., 169 F.R.D. 349 (E.D. Mo. 1996). Judge Nanette Laughrey in the Western District of Missouri has certified a Rule 23(b)(2) "injunctive relief" class action. Turner v. Torotel, Inc., 96-0646-CV-W-5 (W.D. Mo. 1997).

69 110 F.3d 87 (D.C. Cir. 1997).

70 Id. at 96.

71 96-0646-CV-W-5 (W.D. Mo. 1997).

72 Morgan v. United Parcel Service of America, Inc., 169 F.R.D. 349, 358 (E.D. Mo. 1996).

73 Eubanks v. Billington, 110 F.3d 87, 94 (D.C. Cir. 1997) ("Rule 23 is sufficiently flexible to afford district courts discretion to grant opt-out rights in (b) (1) and (b) (2) class actions."); Holmes v. Continental Can Co., 706 F.2d 1144, 1152 (11th Cir. 1983); County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1302 (2d Cir. 1990); Williams v. Burlington Northern, Inc., 832 F.2d 100, 103 (7th Cir. 1987); Penson v. Terminal Transport Co., Inc., 634 F.2d 989, 994 (5th Cir. 1981).

74 Holmes v. Continental Can Co., 706 F.2d 1144, 1153-54 (11th Cir. 1983).

75 Butler v. Home Depot, Inc., 1996 WL 421436 (N.D. Cal. 1996).

76 Arnold v. United Artists Theatre Circuit, Inc., 866 F. Supp. 433 (N.D. Cal. 1994) (citing to 5 H. Newberg, Class Actions § 24.123, at 24-414-426 (3d ed. 1992)).

77 Turner v. Torotel, Inc., 96-0646-CV-W-5 (W.D. Mo. 1997).

78 Morgan, 169 F.R.D. at 358.

79 Id.


JOURNAL OF THE MISSOURI BAR

Volume 56 - No.1 - January-February 2000