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By Perry Cooper
Dec. 1 — Some prominent class action attorneys, especially those who recall Brown v. Board of Education and other significant civil rights battles from the 1960s, worry about what their colleagues spend their time litigating today.
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These kinds of “stupid class actions get outsized media attention,” attorney Michelle Drake of Berger & Montague P.C. in Minneapolis told attendees of a class action conference recently. “And I can say this because I’m a plaintiffs’ lawyer.”
Frivolous cases overshadow the important work being done by class action attorneys and create a skepticism towards important cases, plaintiffs’ advocate Jocelyn Larkin said.
“Social justice cases need better press to counter negative views of class actions,” Larkin, executive director of the pro-plaintiff Impact Fund in Berkeley, Calif., said.
And civil rights class actions—which helped spark the modern version of the class action device more than 50 years ago—could increase if President-elect Donald Trump’s Department of Justice deprioritizes civil rights enforcement, attorneys told Bloomberg BNA.
Trump’s campaign rhetoric about creating a Muslim registry, building a wall with Mexico, bringing back “law and order” and limiting protesters’ rights have raised the hackles of civil rights advocates.
But any predictions on what Trump’s administration will follow through with are little better than guesses.
Bruce Adelson, who worked in the voting section at the DOJ during the Clinton-Bush transition, stressed that initially, not much changes.
As President Barack Obama said recently, the federal government is like an ocean liner: it’s big and difficult to move quickly, Adelson told Bloomberg BNA.
“I’m figuring that by the middle of next year we should start to see indications of new priorities or new directions,” he said. Adelson is the CEO of Federal Compliance Consulting LLC in Washington, which advises clients on compliance with civil rights laws.
Some say the day-to-day enforcement of bread and butter federal statutes isn’t likely to change.
Career attorneys will continue the work they’ve been doing in prior administrations, Gerald Maatman, who defends companies in employment discrimination and other civil rights actions, told Bloomberg BNA. Maatman is at partner at Seyfarth Shaw LLP in Chicago.
He said it “rare that a policymaker will reach to the heartland and diddle around” or command government attorneys to do a certain thing with respect to a lawsuit.
“Stretch-the-envelope type cases” are a different story, Maatman said. He gave the example of the current Justice Department’s active support for transgender rights. He expects a retreat on those cases, enforcing the law as written—as he sees it—rather than stretching it to establish new precedent.
Trump’s pick of conservative Sen. Jeff Sessions (R-Ala.) to head the DOJ could be an indication of the direction the department will take.
“My initial reaction [to Sessions’s nomination] is I’m not optimistic that there will be vigorous enforcement in the civil rights area,” Michael Foreman told Bloomberg BNA. Foreman directs the civil rights appellate clinic at Pennsylvania State University law school in University Park, Pa.
But he reiterated that the DOJ “doesn’t move in big steps.”
“The attorney general can set a theme, he can set a direction, but there are laws in place that need to be enforced,” he said.
Any void left open in the administration’s civil rights enforcement will be filled by the private class action bar, as it has done during past Republican administrations, Larkin, the plaintiffs' lawyer, told Bloomberg BNA.
“It’s always somewhat easier when you have the backing of the administration on enforcement, but when we don’t we’ve forged ahead,” she said.
The new administration could pick areas where it decides it isn’t interested in enforcing civil rights statutes, Foreman said. He gave the example of the Equal Employment Opportunity Commission.
“They could either trim the budget or pick leadership that is not interested in pursuing systemic types of relief,” he said. “It will fall back to the private counsel to pick up those cases that the EEOC doesn’t do.”
But that’s part of how civil rights enforcement is designed to work, Suzette Malveaux, professor of complex litigation and civil rights law at Catholic University Law School in Washington, told Bloomberg BNA. Private cases are an “important piece of the enforcement puzzle,” she said.
“For example, for Title VII employment discrimination cases, there has always been an understanding by Congress that the class action mechanism is a critical piece of that enforcement,” she said. “Federal agencies and the private bar are both key players.”
Foreman said the private bar does an “extremely effective job,” especially with wage-and-hour and employment discrimination class actions. “They’ve actually been the driving force” behind those suits.
Another important job for the civil rights bar is protecting the class action device, Larkin said. “A big part of our mission is ensuring that there aren’t procedural obstacles that are thrown up to prevent the use of class actions to ensure civil rights.”
She had hoped that restrictions on mandatory arbitration would improve conditions for plaintiffs, but those Obama administration initiatives are unlikely to survive under the new leadership. She doesn’t expect to see any changes to Fed. R. Civ. P. 23, the federal rule that governs class actions, however.
Trump will also get to appoint a new justice to the U.S. Supreme Court, which was viewed as hostile to class actions during Justice Antonin Scalia's tenure.
But Larkin stressed that while the Supreme Court matters to civil rights litigation, “the bread and butter civil rights class actions are being heard by district court judges and appellate court judges who for the most part are practical and not particularly politically driven.”
“That’s where we will be litigating most of our cases and ensuring that the values underlying the civil rights laws are preserved,” Larkin said.
Civil rights suits were a major driver behind the modern version of Rule 23, as substantially revised in 1966, Malveaux said.
The committee tasked with amending the rule was troubled by opposition to desegregation in southern states after the U.S. Supreme Court’s decision in Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954). Some judges were finding ways around the decision by, for example, limiting relief to individual students.
And some of the committee members were themselves involved in the civil rights struggle at the time, she said.
“They amended Rule 23(b)(2) with civil rights class actions in mind; that is, when an individual is seeking broad systemic injunctive relief and declaratory relief, that would apply to a swath of people as a whole, Malveaux said.
The heyday for civil rights suits was right after Rule 23 was amended, in the 1960s and 1970s. “There was a period when it was much easier to get a civil rights case certified by alleging an across-the-board violation,” she said.
In the 1980s, the U.S. Supreme Court began dialing class actions back by tightening the requirement that the class representative and class members be similarly situated.
The Civil Rights Act of 1991 created another wrinkle by allowing for compensatory and punitive damages for intentional discrimination cases under Title VII and a right to a jury trial, she said. The act led to a dispute among the federal circuit courts over the circumstances under which you could seek such damages under Rule 23(b)(2), which explicitly provides for injunctive relief, but not monetary damages.
Over time, federal class actions challenging employment discrimination have waned: In 1976, 1,174 employment discrimination class actions were filed in federal court; by 1991, only 32 employment discrimination suits were filed in federal court, she said.
The numbers rebounded a bit in the late 1990s and early 2000s: Filings leveled off around 73 to 85 filings per year, she said.
Recent Supreme Court cases have made the class certification bar harder to clear. “This has not stopped civil rights class actions. But it has discouraged some with potentially meritorious cases from bringing them altogether,” Malveaux said.
Larkin estimates that there are a couple dozen civil rights class actions being litigated around the country in a given year now, excluding wage-and-hour cases. She doesn’t expect that number to rise dramatically.
When things look dire for their cause, Larkin said she and other civil rights attorneys remind themselves, “This is what we do. This is the job we have and there’s nothing else we want to be doing.”
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