Opinion
Civil Action No. 00-3242.
March 4, 2004
MEMORANDUM
Plaintiffs seek certification of a liability class under Title VI, Section 1981 and the Rehabilitation Act. ( See page 3 of plaintiffs' reply in further support of their motion for class certification). According to plaintiffs, "an overarching commonality of the proposed liability classes is that Proposition 16, as it applies to each student-athlete, arbitrarily categorizes and punishes them because of their race and/or their status as learning disabled students ( Id. p. 4, 5).
The liability classes plaintiffs request would be:
TITLE VI LIABILITY CLASS UNDER RULES 23(a) AND 23(b)(3)
All African-American student-athletes who have been or will be accepted by any Division I school, college or university; who applied or will apply for eligibility as qualifiers under NCAA Division I Bylaw 14.3 (Proposition 16); and who, after June 25, 1998, were determined under the NCAA Bylaws to be non-qualifiers or partial qualifiers, except all members of the putative class in Cureton v. NCAA.
SECTION 1981 LIABILITY CLASS UNDER RULES 23(a) AND 23(b)(3)
All African-American student-athletes who have been or will be accepted by any Division I school, college or university and who executed, or will execute, a National Letter of Intent ("NLI") that contains a provision requiring the student-athlete to meet the NCAA's requirements in NCAA Bylaw 14.3 and who, after June 25, 1998, did not meet the requirement to be a qualifier in Bylaw 14.3
REHABILITATION ACT LIABILITY CLASS UNDER RULES 23(a) AND 23(b)(3)
All dyslexic student-athletes who have been or will be recognized by the NCAA as learning disabled because of decoding and other learning disabilities or who have been or will be diagnosed with such learning disabilities; who have been, or will be, accepted by their respective Division I schools that they have chosen to attend, but who have not met or will not meet the standardized test requirement of Proposition 16 and who, after June 25, 1998, were determined to be non-qualifiers or partial qualifiers under the NCAA's Bylaws.
Specifically, the plaintiffs want this action involving the liability classes above to be maintained as a class action with respect to the following issue:
Whether Proposition 16 intentionally discriminates against African-American student-athletes and/or dyslexic student-athletes.
This certification would be pursuant to Fed.R.Civ.P. 23(c)(4)(A).
After certification as above, in brief, plaintiffs propose that notice be sent to members of this general liability class after which (Phase I), one jury, empaneled in this court, would hear the general liability class issues; namely, whether Proposition 16 intentionally discriminates against African-American student-athletes and/or dyslexic student-athletes.
The same jury would also determine whether punitive damages are warranted. If warranted, that jury would be asked to determine the relationship between an award of compensatory damages determined in Phase II (the individual causation and damage trial for each class member).
Members of the general liability class seeking an individual causation and damage determination assuming liability was found in Phase I would be heard individually in their own district by their own jury.
Defendant claims that because claims of intentional discrimination must be examined on an individual basis, plaintiffs' plan is simply based on a false premise; namely, that a liability (Phase I) trial would be a basic inquiry into whether by enacting or enforcing Proposition 16, defendant intended to discriminate against all African-Americans and/or dyslexics ( See surreply memorandum, p. 3).
Specifically, defendant argues that each plaintiff must demonstrate that the NCAA purposefully discriminated against him or her. Persons like Mr. Spivey, who applied for a waiver and was rejected, must demonstrate that the waiver rejection was the result of purposeful discrimination. This requires an individual inquiry into the facts and circumstances of the waiver rejection. Persons like Ms. Pryor, who applied for and received a partial waiver (partial qualifier status), must demonstrate that the NCAA purposefully discriminated against them by granting only partial qualifier status. Finally, class members who did not qualify, and did not apply for waivers, must be able to demonstrate that they were rejected because of their race (or dyslexia) and applying for a waiver would not have made a difference. Such individualistic discrimination determinations cannot be proven on a class wide basis.
Plaintiffs disagree stating that the issues related to whether Proposition 16 is discriminatory will be determined in Phase I separate and apart from those individual questions (Phase II) related to whether defendant is actually liable to each plaintiff for damages.
Succinctly put, ". . . as to the liability questions plaintiffs seek to certify, evidence applicable to the entire class will be offered, including but not limited to statistical evidence, admissions from the NCAA and expert testimony. The liability questions posed in those limited classes do not require individualized proof and are separate and apart from any affirmative defense the NCAA might offer to deny liability to individual class members in a later phase or in individual trials. Thus, severance is not only appropriate; it will present a superior means of adjudicating these claims. This is so because a central issue in each putative class member's respective claim is whether Proposition 16 is intentionally discriminatory. This overarching question can be answered in one proceeding before this court without passing on individual issues." ( See p. 7 of plaintiffs' response to NCAA's surreply).
The able argument of respective counsel both orally and in writing have made the decision in this case a difficult one. But I am ultimately persuaded that plaintiffs cannot show either predominance or superiority under their proposed Rule 23(c)(4)(A) certification.
Plaintiffs argue that in order to grant partial certification under Rule 23(c)(4)(A), they need only show that the Rule 23(a) requirements and the Rule 23(b)(3) predominance requirement have been met with regard to the limited issues plaintiffs seek to certify. That may be correct but the question of law which plaintiffs say predominates — whether Proposition 16 discriminates against them in the same manner and the same time — cannot be proved by a common set of facts.
I do not believe that plaintiffs can get around the argument that in order to establish liability, a plaintiff must prove by a preponderance of the evidence that as to him or her specifically, the defendant engaged in intentional discrimination. The waiver process alone which permits a student athlete to seek a waiver of Proposition 16 would involve a multitude of different factual scenarios. To be liable, a plaintiff would have to prove that his or her race or learning disability was a substantial reason for a denial of a waiver.
Aside from the predominance issue, there are other problems with plaintiffs' approach.
If general liability were found in Phase I, then a subsequent jury under Phase II would simply be instructed that the issue of intentional discrimination has already been determined. Consequently, all the subsequent jury would have to decide is if that determination has been proven with respect to the particular plaintiff in Phase II after presumably hearing defendant's affirmative defenses. One problem that would surely arise is that of overlapping evidence which raises questions as to whether class certification is superior to other methods for the fair and efficient adjudication of the controversy.
As plaintiffs admit, even if they are successful in Phase I, the defendant may still avoid liability. Thus, Phase I as proposed by plaintiffs is not a liability stage other than establishing perhaps a prima facie case of liability.
Even with that finding, as stated earlier, plaintiffs must still prove intentional discrimination as to each member of the class, and the possibility of waiver procedures as to each class member implies an individual analysis. Thus, ultimately the defendant could show that even if it intended to discriminate, the student-athlete would nevertheless not have qualified for Freshman athletics for non-discriminatory reasons. The time arguably saved on a Phase I prima facie determination does not seem worth it.
For example, plaintiffs claim certification will "preserve judicial resources", but that does not strike me as necessarily true. At best, it seems to me that it would be minimal. Moreover, I strongly disagree that certification would promote fairness. A fair trial would not be one in which an issue, relevant in many ways to what a jury empaneled in an individual case under plaintiffs' plan must find, had already been decided by another jury.
Finally, I am sensitive to the fact that Congress established class actions, in part, to vindicate the public interest through private actions. Surely, the public interest lies in giving relief to those who have been subject to intentional discrimination by the NCAA, as alleged by plaintiffs, because of their race or learning disability. But my decision obviously does not leave those aggrieved without a remedy. Simply not certifying a class as to the one issue plaintiffs seek does not really leave a potential plaintiff in a significantly worse position than he would otherwise be. He or she may proceed with a claim of this nature where counsel fees are available as well as compensable and punitive damages to the successful plaintiff. The argument that notification to the class serves to put potential plaintiffs on notice of a way to vindicate a wrong which they might not have known about is not a persuasive reason, either, to certify a class. In today's information age, people in the individual plaintiffs' position could easily inform people across the nation of their position relative to Proposition 16.
In reaching the decision in this case, I focused only on the narrow class certification issue which was the subject of oral argument; namely, could this action be brought or maintained under 23(c)(4)(A) as a class action with respect to the particular issue of intentional discrimination.
A case from this court, In re: Orthopedic Bone Screw Products Liability Litigation, 1995 U.S. Dist. Lexis 22042 (E.D.Pa. 1995) acknowledges that although 23(c)(4)(A) "affords the court a bit of flexibility on the predominance requirement, it does not effect Rule 23(b)(3)'s superiority requirements." In Orthopedic Bone Screw, the court pointed out that plaintiffs could not avoid individual showings of causation by merely asserting that products of the defendants generally cause injury. Causation issues would have to be tried individually. Certification "would prove unmanageable and would not serve any of the judicial efficiency and economy concerns that underpin Rule 23."
Somewhat in contrast, In re: School Asbestos Litigation, 789 F.2d 996, (3d Cir. 1986) cited by plaintiffs, does state the proposition that once the mandates of Rule 23(a) are satisfied, certification may be upheld when common issues predominate over individual ones and the class method of adjudication is superior to existing alternatives. Specifically, plaintiffs point out this language from School Asbestos:
There may be cases in which class resolution of one issue or a small group of them will so advance the litigation that they may fairly be said to predominate. Resolution of common issues need not guarantee a conclusive finding of liability, nor is it a disqualification that damages must be assessed on an individual basis. Id. at 1010.
It must be pointed out, however, that the School Asbestos case came before the court after the District Court had granted a (b)(3) certification. The court said in closing, "We acknowledge that our reluctance to vacate the (b)(3) certification is influenced by the highly unusual nature of asbestos litigation. The district court has demonstrated a willingness to attempt to cope with an unprecedented situation in a somewhat novel fashion and we do not wish to foreclose an approach that might offer some possibility of improvement over the methods employed to date." Id. at 1011.
The litigation involved in this case is not comparable to the asbestos litigation.
The NCAA citing to Fifth Circuit cases, Castano v. American Tobacco Co., 84 F.3d 734 (5th Cir. 1996) and Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998) argues that severing liability from damages could run afoul of the Seventh Amendment.
Plaintiffs argue that the Seventh Amendment prohibition is not against having two juries review the same evidence but rather having two juries decide the same essential issues. This may be correct in the abstract but where issues of liability and damages are interwoven as, it seems to me, they clearly are in this case, trial of both issues of liability and damages by the same jury is preferable. Plaintiffs have cited a comprehensive opinion in Simon, et al. v. Phillip Morris Incorporated, et al., 200 F.R.D. 21, 2001 U.S. Dist. Lexis 1114 (E.D.N.Y. 2001) which supports their view of the Seventh Amendment issue. Interestingly, the court in Simon cites Allison for the statement that if the district court were to certify a class action, care must be taken to accommodate the parties' right to a jury trial. "Under the circumstances of a particular case, this task may be difficult, but it is by no means impossible in every instance where proper safeguards are used." Allison at 432 (dissenting opinion).
Other district courts have opined in cases similar to the case before this court. In Benner, et al. v. Becton Dickinson Co., et al., 214 F.R.D. 157, 2003 U.S. Dist. Lexis 4872 (S.D.N.Y. 2003), plaintiffs sought a verdict that the products involved shared one common defect; namely, the complete lack of safety technology to neutralize or sheathe a contaminated needle. The court did not grant a Rule 23(c)(4) common issue certification for two reasons: (1) the issue certification would not materially advance a disposition of the litigation as a whole; and (2) individual issues would still predominate over common ones. The plaintiffs' proposed adjudication plan in Benner was more complicated than the one plaintiffs propose in this case but much the same reasoning applies. The plan in this case would result in a large number of individual trials and all of the individual issues would still predominate over the single issue on which plaintiffs seek certification.
In In re: Methyl Tertiary Butyl Ether (MTBE) Products Liability Litigation, 209 F.R.D. 323, 2002 U.S. Dist. Lexis 12846 (S.D.N.Y. 2002), the court raised a concern which is a bona fide one in this case as well. The court said, "to the extent that a trial on general liability would be effective in proving liability, this court shares the `concern with forcing the defendants to stake their companies on the outcome of a single jury trial, or be forced by fear of risk of bankruptcy to settle even if they have no legal liability.'" Rhone-Poulnec 51 F.3d at 1299. Moreover, the odds in a classwide trial on general liability would be stacked against the defendants. A class trial on liability without any reference to [for example] the limitations defense runs the real risk of a composite case being stronger than any plaintiff's individual action would be. O'Conner, 197 F.R.D. at 415.
While I have no basis to know whether a fear of bankruptcy would force the NCAA to settle, I do believe that the composite case on liability would necessarily be stronger than a plaintiff's individual action.
Finally, I have considered the decision in In re: Tetracycline, 107 F.R.D. 719, 1985 U.S. Dist. Lexis 15392 (W.D. Missouri 1995) cited by plaintiffs. This case supports plaintiffs' argument on the Rule 23(c)(4)(A) to a certain extent. Referring to that rule, the court said:
The latter Rule, added by the 1966 Amendments to the Federal Rules, provides a district court with "ample powers `to treat common things in common and to distinguish the distinguishable.'" 3B Moore's Federal Practice, § 23.65 at 23-473; quoting from Jenkins v. United Gas Corp., 400 F.2d 28, 35 (5th Cir. 1968). The underlying philosophy of Rule 23(c)(4)(A), according to Professors Wright and Miller, . . . is that the advantages and economies of adjudicating issues that are common to the entire class on a representative basis should be secured even though other issues in the case may have to be litigated separately by each class member. Accordingly, even if only one common issue can be identified as appropriate for class action treatment, that is enough to justify the application of the provision as long as the other Rule 23 requirements have been met.
7A Wright Miller, Federal Practice and Procedure: § 1790 at 187.
The court goes on to say:
If the plaintiffs were required to satisfy the Rule 23(a) prerequisites with respect to all the issues in the case, there would be no need or place for the partial class certification envisioned by the drafters of Rule 23(c)(4)(A). Reference to the general rules of construction indicates that any interpretation that makes a federal rule superfluous is to be avoided. Gangemi v. Moor, 268 F. Supp. 19, 21-22 (D.Del. 1967). Consequently, I decline to adopt a contention that would require all the issues in this action to be examined in determining whether the common issues should proceed to trial on a class basis under Rule 23(c)(4)(A).
This is essentially the view referred to in Orthopedic Bone Screw, supra, referring to the court's flexibility on the predominance requirement.
But even after that analysis in In re: Tetracycline, the court concluded:
In a sense, plaintiffs would have the question of global liability to be the predominant one in this litigation. They seek a blanket determination that DES causes injury to a female in utero, and believe that this common issue predominates over any question affecting only individual class members. The telling inquiry is what would such a determination do to advance the cause of the class members as a group?
It is this court's view that a mere finding that DES causes injury in utero would do substantially nothing to advance the common cause of class members. In light of the varied degrees of use, exposure and harm in each plaintiff's case, a determination in principle would serve no useful purpose in resolving the individual claims made in this action. . . .
. . . . Although common questions need not be dispositive of the entire class action, . . . their resolution should at least provide a definite signal of the beginning of the end. This is not the type of litigation, however, that lends itself to establishing a global result that a product causes harm with the details merely to be tidied up thereafter. The importance of the `details' in each individual claim would clearly outweigh the single determination that DES causes injury.
While product liability differ from civil rights actions such as this case, the principles involved in determining the propriety of a class action are similar.
An order follows.