Brown v. Kelly, No. 07-3356 (2d Cir. 2010)

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07-3356-cv Brown v. Kelly 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2008 4 5 6 7 (Argued: December 19, 2008 Decided: June 24, 2010) Docket No. 07-3356-cv _____________________________________________ 8 9 MICHAEL BROWN, on behalf of himself and others similarly situated, 10 Plaintiff-Appellee, 11 v 12 13 14 15 16 17 POLICE COMMISSIONER RAYMOND W. KELLY, as commissioner of the New York City Police Department (NYPD), BARRY M. BUZZETTI, Captain and Commanding Officer of NYPD 48th Precinct, JOHN & JANE DOES, police officers, CITY OF NEW YORK, MICHAEL CURLEY, COREY HARRIS, MIGUEL MUSSE, KEVIN LYNCH, JOHN BRENNAN, SHAWN RICKER, and ROBERT JOHNSON JR., District Attorney of Bronx County, 18 Defendants-Appellants.* 19 _____________________________________________ 20 Before: 21 SACK and KATZMANN, Circuit Judges.** Defendants-appellants appeal from a July 24, 2007, 22 order of the United States District Court for the Southern 23 District of New York (Shira A. Scheindlin, Judge) granting 24 plaintiff-appellee Michael Brown's motion for class * The Clerk of the Court is respectfully directed to amend the official caption to appear as set forth in this opinion. ** The Honorable Sonia Sotomayor, originally a member of the panel, was appointed to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter. See 28 U.S.C. § 46(d); IOP E(b); United States v. Desimone, 140 F.3d 457, 458-59 (2d Cir. 1998). 1 certification. We conclude that the district court erred in 2 certifying a statewide defendant class because the defendant 3 class representatives do not meet the adequacy and typicality 4 requirements of Federal Rule of Civil Procedure 23(a), and that 5 the district court also erred in certifying a statewide plaintiff 6 class because the certification of this class was contingent on 7 the bilateral certification of both a statewide plaintiff and a 8 statewide defendant class. 9 court's certification of a citywide plaintiff class pursuant to 10 Federal Rule of Civil Procedure 23(b)(3), because the citywide 11 plaintiff class does meet the requirements of Federal Rules of 12 Civil Procedure 23(a) and 23(b)(3). 13 portion of the district court's order certifying the Rule 14 23(b)(2) statewide plaintiff and defendant classes and remand to 15 the district court for further proceedings. We affirm, however, the district Accordingly, we vacate the 16 17 18 19 20 21 FAY NG (Pamela Seider Dolgow, Rachel Seligman, Linda Donahue, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants. 22 23 24 25 26 27 28 29 MATTHEW D. BRINCKERHOFF, Emery Celli Brinckerhoff & Abady LLP, New York, NY (Katherine R. Rosenfeld, Emery Celli Brinckerhoff & Abady LLP, New York, NY, J. McGregor Smyth, Jr., The Bronx Defenders, Bronx, NY, on the brief), for Plaintiff-Appellee. 2 1 2 3 4 5 6 7 MONICA WAGNER (Barbara D. Underwood, Benjamin N. Gutman, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, for Amicus Curiae State of New York, in support of Defendants-Appellants. 8 9 10 11 12 13 14 Anthony J. Servino, Steven A. Bender, for James A. Murphy III, District Attorney of Saratoga County, New York (on submission), for Amicus Curiae New York State District Attorneys Association, in support of Defendants-Appellants. 15 16 17 18 19 Dennis J. Saffran, for Lorna B. Goodman, County Attorney of Nassau County, New York (on submission), for Amicus Curiae Nassau County, in support of Defendants-Appellants. 20 21 22 23 24 25 Christopher A. Jeffreys, for Christine Malafi, County Attorney of Suffolk County, New York (on submission), for Amicus Curiae Suffolk County, in support of Defendants-Appellants. 26 27 28 29 30 31 32 33 Max Minzer, Benjamin Cardozo School of Law, New York, NY, Kenneth E. Aldous, Proskauer Rose LLP, New York, NY (on submission), for Amici Curiae Law Professors who Study Federal Civil Procedure and Class Actions, in support of PlaintiffAppellee. 34 35 36 37 38 William M. Brooks, Touro College, Central Islip, NY, for Amicus Curiae Mental Disability Law Clinic, in support of PlaintiffAppellee. 39 SACK, Circuit Judge: 3 1 Defendants-appellants appeal from a July 24, 2007, 2 order of the United States District Court for the Southern 3 District of New York (Shira A. Scheindlin, Judge) granting 4 plaintiff-appellee Michael Brown's motion (1) to certify a New 5 York City-wide plaintiff class (the "City Plaintiff Class") for 6 damages pursuant to Federal Rule of Civil Procedure 23(b)(3), 7 consisting of persons who have been or will be arrested, 8 summonsed, or prosecuted under New York Penal Law § 240.35(1), a 9 New York State statute previously declared unconstitutional by 10 this Court; (2) to certify a statewide plaintiff class (the 11 "State Plaintiff Class") for injunctive relief pursuant to 12 Federal Rule of Civil Procedure 23(b)(2), also consisting of 13 individuals against whom this statute has been or will be 14 enforced; and (3) to certify a statewide defendant class (the 15 "State Defendant Class") pursuant to Federal Rule of Civil 16 Procedure 23(b)(2), consisting of all New York State political 17 subdivisions and law enforcement and prosecutorial policy-making 18 officials with authority to arrest, charge or prosecute under 19 this statute. 20 defendant classes is not ordinarily permitted under Rule 23(b)(2) 21 and, particularly, that none of the certified classes in this 22 action meet the requirements of Rule 23. 23 24 The defendants argue both that certification of We decline to revisit our holding in Marcera v. Chinlund, 595 F.2d 1231 (2d Cir.), vacated on other grounds sub 4 1 nom. Lombard v. Marcera, 442 U.S. 915 (1979), that Rule 23(b)(2) 2 permits certification of a defendant class where a plaintiff 3 seeks "injunctive relief against a class of local public 4 officials," 595 F.2d at 1238, even though, the judgment having 5 been vacated, the decision in Marcera is not binding on us. 6 respect to whether class certification was appropriate under Rule 7 23, we conclude that the district court abused its discretion in 8 certifying the State Plaintiff and Defendant Classes under Rule 9 23(b)(2), but we affirm the district court's certification of the With 10 City Plaintiff Class pursuant to Rule 23(b)(3). Accordingly, we 11 vacate the portion of the district court's order certifying the 12 Rule 23(b)(2) State Plaintiff and Defendant Classes and remand to 13 the district court for further proceedings. BACKGROUND 14 15 Allegations 16 Plaintiff Michael Brown brings this putative class 17 action against New York City Police Commissioner Raymond W. 18 Kelly, the City of New York, the Bronx County District Attorney, 19 individual New York City police officers and supervisors, and 20 individual District Attorney's Office personnel in New York City 21 (the "City Defendants"), and a putative defendant class of 22 statewide political subdivisions and law enforcement and 23 prosecutorial personnel -- the State Defendant Class -- alleging 24 that the defendants have unlawfully continued to arrest, summons, 5 1 and prosecute individuals such as Brown pursuant to New York 2 Penal Law § 240.35(1), a statute that was declared 3 unconstitutional by this Court in 1993. 4 Police Dep t, 999 F.2d 699, 705-06 (2d Cir. 1993).1 5 See Loper v. N.Y. City New York Penal Law § 240.35(1) addresses loitering for 6 the purpose of begging, and provides that a person is guilty of 7 "loitering when he . . . [l]oiters, remains or wanders about in a 8 public place for the purpose of begging." 9 240.35(1). N.Y. Penal Law § In Loper, we held that section 240.35(1) violates the 10 First Amendment and therefore affirmed a district court order 11 permanently enjoining the City of New York from enforcing the 12 statute. 13 nonetheless arrested and prosecuted under section 240.35(1) in 14 2003 and that section 240.35(1) has continued to be enforced both 15 within New York City and elsewhere throughout New York State 16 after, and despite, this Court's decision in Loper. 17 asserts claims of: (1) false arrest, false imprisonment, and See 999 F.2d at 706. Brown alleges that he was 1 He therefore We note that, on June 10, 2010, during the pendency of this appeal, the Appellate Term of the New York State Supreme Court for the 9th and 10th Judicial Districts, a state intermediate appellate court, held, in conformity with our decision in Loper, that New York Penal Law § 240.35(1) is unconstitutional. See People v. Hoffstead, --- N.Y.S.2d ---, 2010 WL 2331432, at *2, 2010 N.Y. Misc. LEXIS 1572, at *3 (N.Y. Sup. App. Term June 10, 2010) ("We agree that Penal Law § 240.35(1) is unconstitutional because it violates the freedom-of-speech guarantee of the First Amendment."). This development does not, however, affect our resolution of this appeal. 6 1 malicious prosecution in violation of the Fourth and Fourteenth 2 Amendments; (2) inhibition of class members' free speech 3 activities in violation of the First and Fourteenth Amendments; 4 (3) violation of class members' due process rights under the 5 Fourteenth Amendment; and (4) violation of the Equal Protection 6 Clause of the Fourteenth Amendment. 7 injunctive relief against the State Defendant Class, including an 8 order directing the members of the State Defendant Class to cease 9 enforcement of the statute and an order mandating various The Complaint seeks 10 remedial measures including training, the establishment of an 11 arrest tracking system, disgorgement of fines, expungement of 12 convictions, vacating of warrants, and the issuance of new 13 policies. 14 Defendant Class has committed the violations of law alleged in 15 this action. 16 named City Defendants on behalf of the City Plaintiff Class. It also seeks a declaratory judgment that the State Finally, the Complaint seeks damages against the 17 Litigation History 18 On June 9, 2005, former plaintiff Eddie Wise instituted 19 this action by obtaining an order to show cause and temporary 20 restraining order against the New York City and State defendants 21 for unlawfully enforcing section 240.35(1). 22 occasions from 2002 through June 2005, uniformed police officers 23 allegedly wrongfully arrested Wise for begging peacefully on the 24 streets of the Bronx. On multiple Wise was charged with loitering in 7 1 violation of section 240.35(1) and prosecuted for this offense by 2 the Bronx County District Attorney's Office. 3 Soon thereafter, the City Defendants entered into a 4 stipulation in which they agreed to take steps aimed at 5 preventing future enforcement of the statute. 6 "so ordered" that stipulation on June 23, 2005. 7 order, the City Defendants were to notify various City law- 8 enforcement officials and employees that section 240.35(1) had 9 been declared unconstitutional, which they did. The district court Pursuant to the The order 10 further provided that the City and its employees "shall cease 11 enforcement of [section 240.35(1)]." 12 In January 2006, Wise settled his claims with the New 13 York State defendants, including the Office of Court 14 Administration ("OCA").2 15 only remaining defendants in that action. The City Defendants were left as the 16 On November 22, 2006, Wise accepted the City 17 Defendants' Offer of Judgment pursuant to Federal Rule of Civil 18 Procedure 68, subsequent to which a judgment was entered 19 dismissing all of his claims. 20 requested and received leave to amend his complaint to add Brown 21 as a plaintiff and plaintiff class representative. 22 although Wise was dismissed from the litigation as a plaintiff, Prior to this dismissal, Wise had 2 Accordingly, Pursuant to that settlement, OCA was subpoenaed to produce information contained in its electronic data system, which tracks and stores summonses issued under section 240.35(1). 8 1 the class action was permitted to continue with Brown as the lead 2 plaintiff and class representative. 3 In March 2007, Brown, now the class representative, 4 moved to hold the City Defendants in contempt for their alleged 5 failure to comply with the district court's June 2005 order to 6 cease enforcement of section 240.35(1). 7 31, 2007, the district court denied the motion, citing 8 improvements in the City's compliance subsequent to December 2006 9 and concluding that holding the City in contempt would not "have 10 the desired effect of halting the issuance of further summonses 11 by patrolling officers." 12 WL 1573957, at *5, 2007 U.S. Dist. LEXIS 39527, at *23 (S.D.N.Y. 13 May 31, 2007). 14 "notwithstanding an Order of this Court dated June 23, 2005, 15 which directed defendants once and for all to cease enforcing the 16 statute, enforcement continues to this day." 17 1573957, at *1, 2007 U.S. Dist. LEXIS 39527, at *2.3 In an order dated May Brown v. Kelly, No. 05 Civ. 5442, 2007 The district court found, however, that Id., 2007 WL 3 Recently, however, in response to a renewed motion filed by the plaintiffs during the pendency of this appeal, the district court issued an order on April 26, 2010, holding the City of New York to be in contempt of court for failing to act with reasonable diligence to eliminate enforcement of section 240.35(1) and two related loitering provisions in the Penal Code that have been ruled unconstitutional, sections 240.35(3) and 240.35(7), after being ordered by the court on June 23, 2005 and May 2, 2008 to do so. See Casale v. Kelly, --- F. Supp. 2d ---, Nos. 08 Civ. 2173, 05 Civ. 5442, 2010 WL 1685582, at *12, 2010 U.S. Dist. LEXIS 40606, at *54 (S.D.N.Y. Apr. 26, 2010). Despite the various measures undertaken by the City, 9 1 Earlier, on February 2, 2007, Brown had moved for class 2 certification and for leave to amend the Complaint. 3 have the following classes certified: (1) a Rule 23(b)(2) 4 plaintiff class consisting of all persons who have been or will 5 be arrested, charged or prosecuted for violating section 6 240.35(1) in the State of New York from October 7, 19924 onward; 7 (2) a Rule 23(b)(3) plaintiff subclass of all persons who have 8 been or will be arrested, charged or prosecuted by employees, 9 agents or representatives of New York City for violating section 10 He sought to 240.35(1) from October 7, 1992 onward; and (3) a Rule 23(b)(2) pursuant to the court's direction, to eliminate enforcement of these unconstitutional provisions, the court found that enforcement has continued to an unacceptable degree more than 18 years since section 240.35(1) was invalidated and that "the City has done little on its own initiative or with reasonable conviction and speed to end the illegal enforcement." Id., 2010 WL 1685582, at *1, 2010 U.S. Dist. LEXIS 40606, at *1-*2. Indeed, since the court's denial of the plaintiffs' previous motion for contempt in June 2007, the City has issued upwards of 110 unlawful citations under section 240.35(1). Id., 2010 WL 1685582, at *6, 2010 U.S. Dist. LEXIS 40606, at *27. After declining to impose sanctions in the past, the court found the City's continued "obstinance and uncooperativeness" to be "offensive to the rule of law" and, in light of the fact that the City "has proven itself to only act responsibly and energetically when threatened with sanctions," concluded that "the time for promises, excuses, and judicial forbearance is over." Id., 2010 WL 1685582, at *1, 2010 U.S. Dist. LEXIS 40606, at *2-*4. 4 In Loper, we affirmed the decision of the district court in Loper v. N.Y. City Police Dep't, 802 F. Supp. 1029, 1048 (S.D.N.Y. 1992), declaring N.Y. Penal Law § 240.35(1) unconstitutional and enjoining its enforcement. See Loper, 999 F.2d at 706. The district court's decision was entered on September 30, 1992, and the resulting injunction issued on October 7, 1992. 10 1 defendant class of "all political sub-divisions and all law 2 enforcement/prosecutorial policy-making officials in the State of 3 New York with authority to arrest, charge or prosecute a person 4 with a violation under New York Penal Law." 5 proposed amended complaint sought preliminary and permanent 6 injunctive relief against all defendant class members, 7 compensatory damages against all the named City Defendants, and 8 punitive damages against all named City Defendants except the 9 City of New York. 10 The corresponding The State and City Plaintiff Classes were to be 11 represented by Brown and six other plaintiffs who were added to 12 the proposed amended complaint. 13 all either issued summons or arrested and charged under section 14 240.35(1) in the Bronx or Manhattan. 15 was to be represented by the City of New York, New York City 16 Police Commissioner Raymond Kelly, and Bronx County District 17 Attorney Robert Johnson (the "Defendant Class Representatives"). 18 In support of certification, Brown pointed to uncontested 19 evidence that from January 2, 2007, through March 14, 2007, 20 members of the New York City Police Department issued 21 section 240.35(1) summonses at an average rate of one every other 22 day. 23 1992 there had been at least 673 criminal prosecutions by 24 district attorney s offices charging violations of These class representatives were The State Defendant Class Brown also cited OCA data reflecting the fact that since 11 1 section 240.35(1) in Rockland, Suffolk, Erie, and Nassau 2 Counties. 3 On July 24, 2007, the district court granted Brown's 4 motion in its entirety. Brown v. Kelly, 244 F.R.D. 222, 225 5 (S.D.N.Y. 2007). 6 City Plaintiff Classes met the commonality and typicality 7 requirements of Rule 23(a)5 because their injuries all "derive 8 from a unitary course of conduct by a single system": an arrest 9 and prosecution policy throughout New York State pursuant to The court found, inter alia, that the State and 10 section 240.35(1), which "chilled" their speech and facilitated 11 the unlawful enforcement of an unconstitutional statute. 12 231-32 (internal quotation marks omitted). 13 that the plaintiffs "easily satisfy the numerosity requirement" 14 of Rule 23(a), id. at 229, and that the adequacy requirement was 5 Id. at The court also found Rule 23(a) provides: (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. 12 1 met because "the named plaintiffs' motives for pursuing this 2 litigation are commensurate with those of all proposed class 3 members," id. at 234. 4 5 The district court concluded that certification of the State Plaintiff Class was warranted pursuant to Rule 23(b)(2)6 6 Rule 23(b) provides: (b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if: (1) prosecuting separate actions by or against individual class members would create a risk of: (A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or (B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests; (2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or (3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include: (A) the class members' interests in 13 1 because "law enforcement agencies throughout New York State, 2 including New York City, continued charging individuals with 3 violating section 240.35(1) after it was declared 4 unconstitutional" and "the class action device is the most 5 efficient and appropriate method for vindicating the rights of 6 individuals throughout New York who were subject to an unlawful 7 section 240.35(1) charge." 8 certification of the City Plaintiff Class pursuant to Rule 9 23(b)(3), concluding that the common liability issues were "so Id. at 237. It also approved 10 pronounced and pervasive [that] they overwhelmingly outweigh the 11 more narrow inquiries that may be required to resolve a subset" 12 of claims. 13 demographics of the proposed subclass, the class action device 14 was not only superior to alternative methods of adjudication, but 15 was the "only method of adjudication." 16 marks omitted, emphasis in original). Id. at 238. The court concluded that in light of the Id. (internal quotation The court noted that individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (D) the likely difficulties in managing a class action. 14 1 certification would permit many class members who did not possess 2 the resources to bring individual actions to vindicate their 3 rights in unison and would avoid the burden and expense of 4 duplicative lawsuits. 5 Id. at 238-39. With respect to the proposed State Defendant Class, the 6 district court concluded, inter alia, that in light of the fact 7 that section 240.35(1) has been held to be unconstitutional, the 8 "simple fact that [it] remains on the books and subject to state- 9 wide enforcement provides the requisite commonality." Id. at 10 240. The court found typicality and adequacy based on the fact 11 that all of the members of the State Defendant Class "are 12 officials of a single state and are charged with enforcing or 13 uniformly acting in accordance with a state statute, or common 14 rule or practice of state-wide application, which is alleged to 15 be unconstitutional." 16 omitted). 17 23(b)(2) was appropriate because, inter alia, incidents of 18 unlawful enforcement have occurred statewide, rendering 19 injunctive relief appropriate. 20 Id. (quotation marks and citation The court decided that certification under Rule Id. at 243. On August 3, 2007, the City Defendants filed a timely 21 petition pursuant to Rule 23(f) for leave to appeal to this Court 22 the district court's order granting the motion for class 23 certification. 24 petition. By order dated November 7, 2007, we granted the 15 DISCUSSION 1 2 I. Standard of Review 3 A district court's certification of a class under Rule 4 23 is reviewed for abuse of discretion, provided that, as here, 5 the court applied the proper legal standards. 6 Offering Sec. Litig., 471 F.3d 24, 31 32 (2d Cir. 2006) ("In re 7 IPO"). 8 district court's ultimate decision on class certification and to 9 its rulings as to the individual Rule 23 requirements. In re Initial Pub. This abuse-of-discretion standard applies both to the Id. To 10 the extent that the district court's ruling on an individual Rule 11 23 requirement is supported by a finding of fact, that finding is 12 reviewed under the "clearly erroneous" standard. 13 To the extent such a ruling involves an issue of law, we review 14 it de novo. Id. at 40-41. Id. at 41. 15 II. Standards for Class Certification 16 Class certification is governed by Rule 23 of the 17 Federal Rules of Civil Procedure. To be certified, a putative 18 class must first meet all four prerequisites set forth in Rule 19 23(a): numerosity, commonality, typicality, and adequacy. 20 Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 21 546 F.3d 196, 201 02 (2d Cir. 2008) ("Teamsters"). 22 numerosity requirement provides that the class must be "so 23 numerous that joinder of all members is impracticable." 24 Civ. P. 23(a)(1). The Fed. R. The commonality requirement is met if there is 16 1 a common question of law or fact shared by the class. Fed. R. 2 Civ. P. 23(a)(2); see also Marisol A. v. Giuliani, 126 F.3d 372, 3 376 (2d Cir. 1997). 4 defenses of the class representatives be typical of the claims or 5 defenses of the class members. 6 This requirement "is satisfied when each class member's claim 7 arises from the same course of events, and each class member 8 makes similar legal arguments to prove the defendant's 9 liability." Typicality requires that the claims or See Fed. R. Civ. P. 23(a)(3). Marisol A., 126 F.3d at 376 (internal quotation 10 marks omitted). 11 often "tend to merge into one another, so that similar 12 considerations animate analysis" of both. 13 requirement is that "the representative parties will fairly and 14 adequately protect the interests of the class." 15 23(a)(4). 16 The commonality and typicality requirements Id. The adequacy Fed. R. Civ. P. Not only must each of the requirements set forth in 17 Rule 23(a) be met, but certification of the class must also be 18 deemed appropriate under one of the three subdivisions of Rule 19 23(b). 20 Plaintiff and Defendant Classes under Rule 23(b)(2), and to the 21 City Plaintiff Class under Rule 23(b)(3). 22 The district court granted certification to the State Under Rule 23(b)(2), class certification is appropriate 23 if "the party opposing the class has acted or refused to act on 24 grounds that apply generally to the class, so that final 17 1 injunctive relief or corresponding declaratory relief is 2 appropriate respecting the class as a whole." 3 23(b)(2). 4 Fed. R. Civ. P. Under Rule 23(b)(3), class certification is appropriate 5 if "the questions of law or fact common to class members 6 predominate over any questions affecting only individual members, 7 and . . . a class litigation is superior to other available 8 methods for fairly and efficiently adjudicating the controversy." 9 Fed. R. Civ. P. 23(b)(3). "As a general matter, the Rule 10 23(b)(3) predominance inquiry tests whether proposed classes are 11 sufficiently cohesive to warrant adjudication by representation." 12 In re Nassau County Strip Search Cases, 461 F.3d 219, 225 (2d 13 Cir. 2006) (internal quotation marks omitted). 14 15 The matters pertinent to these findings include: 16 17 18 (A) the class members' interests in individually controlling the prosecution or defense of separate actions; 19 20 21 (B) the extent and nature of any litigation concerning the controversy already begun by or against class members; 22 23 24 (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and 25 26 (D) the likely difficulties in managing a class action. 27 28 29 Fed. R. Civ. P. 23(b)(3). In evaluating a motion for class certification, the district court is required to make a "definitive assessment of 18 1 Rule 23 requirements, notwithstanding their overlap with merits 2 issues," and must resolve material factual disputes relevant to 3 each Rule 23 requirement. 4 23 requirements must be established by at least a preponderance 5 of the evidence. In re IPO, 471 F.3d at 41. The Rule Teamsters, 546 F.3d at 202. 6 7 III. 8 The City Defendants argue at the threshold that the 9 Applicability of Rule 23(b)(2) to a Defendant Class district court erred in certifying a statewide defendant class 10 because Rule 23(b)(2) does not authorize defendant classes. 11 panel of this Court resolved that question in Marcera v. 12 Chinlund, 595 F.2d 1231 (2d Cir.), vacated on other grounds sub 13 nom. Lombard v. Marcera, 442 U.S. 915 (1979). 14 Washington, 390 U.S. 333 (1968) (per curiam), we concluded that 15 Rule 23(b)(2) is "an appropriate vehicle for injunctive relief 16 against a class of local public officials." 17 1238. 18 us that a three-judge panel of this Court should not revisit 19 Marcera's holding. 20 A Relying on Lee v. Marcera, 595 F.2d at The City Defendants conceded during oral argument before We agree. Because the Supreme Court vacated our decision in 21 Marcera, it is not technically binding on us. 22 Donaldson, 422 U.S. 563, 577 n.12 (1975) ("Of necessity our 23 decision vacating the judgment of the Court of Appeals deprives 24 that court's opinion of precedential effect, leaving this Court's 25 opinion and judgment as the sole law of the case."); Russman v. 19 See O Connor v. 1 Bd. of Educ. of the Enlarged City Sch. Dist. of the City of 2 Watervliet, 260 F.3d 114, 122 n.2 (2d Cir. 2001) (noting in dicta 3 that "[w]hen imposed by the Supreme Court, vacatur eliminates an 4 appellate precedent that would otherwise control decision on a 5 contested question throughout the circuit"); Durning v. Citibank, 6 N.A., 950 F.2d 1419, 1424 n.2 (9th Cir. 1991) ("A decision may be 7 reversed on other grounds, but a decision that has been vacated 8 has no precedential authority whatsoever.") (emphasis in 9 original). 10 We nonetheless treat Marcera as persuasive authority. Marcera addressed a difficult question of statutory 11 interpretation. Under Rule 23(b)(2), "[a] class action may be 12 maintained if Rule 23(a) is satisfied and if . . . the party 13 opposing the class has acted or refused to act on grounds that 14 apply generally to the class, so that final injunctive relief or 15 corresponding declaratory relief is appropriate respecting the 16 class as a whole." 17 The circuits are divided as to whether and under what 18 circumstances this provision permits the certification of a Fed. R. Civ. P. 23(b)(2) (emphasis added).7 7 Although this case was filed in 2005, this text reflects the December 2007 amendments to Rule 23(b)(2), which were intended to be stylistic only. See Fed. R. Civ. P. 23(b)(3) adv. comm. n. to 2007 amend. 20 1 defendant class.8 2 the matter. The Supreme Court has not offered guidance on 3 The question whether defendant classes can be certified 4 under Rule 23(b)(2), and if so under what circumstances, does not 5 admit of an easy answer. 6 textual argument that Rule 23(b)(2) does not countenance On the one hand, there is a strong 8 The Seventh Circuit has concluded that Rule 23(b)(2) does not permit the certification of defendant classes. See Henson v. E. Lincoln Twp., 814 F.2d 410, 415-17 (7th Cir. 1987). The Fourth Circuit is of the view that while defendant classes are generally impermissible under Rule 23(b)(2), an exception exists, in relevant part, when there is a challenge to "a statewide [governmental] rule or practice so that relief is available if the rule or practice is invalid." Bazemore v. Friday, 751 F.2d 662, 669 70 (4th Cir. 1984) (interpreting Paxman v. Campbell, 612 F.2d 848 (4th Cir. 1980) (en banc), which had held that "[t]o proceed under 23(b)(2) against a class of defendants . . . would create the anomalous situation in which the plaintiffs' own actions or inactions could make injunctive relief against the defendants appropriate," id. at 854, to turn on the fact that it was "uncontradicted [in Paxman that] there was no statewide policy in force, centrally directed or otherwise"), aff'd in part, vacated in part on other grounds, 478 U.S. 385 (1986). The Fifth Circuit has upheld the certification of a defendant class in a mass tort action under Rule 23(b)(2), although it noted in doing so that the parties had not challenged the propriety of such certification on appeal. In re Asbestos Litig., 90 F.3d 963, 991 n.20 (5th Cir. 1996), vacated on other grounds sub nom. Flanagan v. Ahearn, 521 U.S. 1114 (1997) (Mem.). Other circuits have held that the certification of defendant classes is ordinarily not permitted under Rule 23(b)(2), but have explicitly declined to rule on whether Rule 23(b)(2) applies to suits for injunctive relief against a class of local pubic officials. See Tilley v. TJX Cos., Inc., 345 F.3d 34, 39 40 (1st Cir. 2003); Thompson v. Bd. of Educ. of Romeo Cmty. Schs., 709 F.2d 1200, 1203-04 (6th Cir. 1983); cf. Akron Ctr. for Reprod. Health v. Rosen, 110 F.R.D. 576, 583 (N.D. Ohio 1986) (interpreting Thompson to endorse certification, under Rule 23(b)(2), of a defendant class of officials who were required to enforce an allegedly unconstitutional statute). 21 1 defendant classes because in a defendant class action, the party 2 opposing the class -- the plaintiffs -- would not be the party 3 who has allegedly "acted or refused to act on grounds that apply 4 generally to the class." 5 that the illustrative examples of Rule 23(b)(2) actions in the 6 Advisory Committee Notes to Rule 23 include no cases involving 7 defendant classes. 8 decisions. 9 This argument is buttressed by the fact See Fed. R. Civ. P. 23 adv. comm. n. of On the other hand, as a commentator has pointed out, 10 Rule 23(b)(2) can be read consistently with the certification of 11 a bilateral (plaintiff and defendant) class,9 permitting 12 certification when "the party [defendant or defendant class] 13 opposing the [plaintiff] class has acted or refused to act on 14 grounds that apply generally to the [plaintiff] class, so that 15 final injunctive relief or corresponding declaratory relief is 16 appropriate respecting the class as a whole." 17 Actions § 4:66 (4th ed. 2009). 18 Rule 23's general authorization of defendant classes, see Fed. R. 19 Civ. P. 23(a) (stating that "[o]ne or more members of a class may 20 sue or be sued as representative parties on behalf of all 21 members" (emphasis added)), and from Rule 23(b)(2)'s use of the 22 phrase, "the party opposing the class," rather than language 2 Newberg on Class This interpretation follows from 9 We use the term "bilateral class" throughout this opinion to refer to the certification of both a plaintiff and a defendant class. 22 1 explicitly limiting this provision to plaintiff classes. 2 gains support from cases interpreting Rule 23 prior to the 1966 3 amendments that created Rule 23(b)(2) in its current form.10 4 It also In Lee, moreover, which we relied upon in Marcera, the 5 Supreme Court affirmed a district court's certification of a 6 bilateral class under the pre-1966 Rule 23, see 390 U.S. at 333, 7 which, if considered for certification today, would most easily 8 fit under Rule 23(b)(2): 9 acted or refused to act on grounds that apply generally to the "[T]he party opposing the class has 10 class, so that final injunctive relief or corresponding 11 declaratory relief is appropriate respecting the class as a 12 whole." 13 court opinion in Lee, the defendant class consisted of all county 14 sheriffs and city and town wardens and jailers in the state of 15 Alabama, and the action sought to enjoin the state's policy of 16 segregating prisoners by race. 17 327, 328-29 (M.D. Ala. 1966). 18 Notes to the 1966 amendments do not indicate an intention for the 19 post-1966 rule to limit the types of classes that were held 20 permissible under the pre-1966 rule, Lee provides support for Fed. R. Civ. P. 23(b)(2). As described in the district Washington v. Lee, 263 F. Supp. Because the Advisory Committee 10 We also note that "the party opposing the class" could refer to the party opposing class certification, rather than the party opposing the class in the litigation. Under this reading, class certification is permissible when the party opposing class certification -- the defendants -- has acted or refused to act on grounds that apply generally to the defendant class. 23 1 interpreting Rule 23(b)(2) to permit the certification of 2 defendant classes, at least in a bilateral class action seeking 3 injunctive relief against a class of local public officials.11 4 Thus, we perceive strong arguments on both sides of the 5 issue, particularly in the context of a bilateral class action 6 challenging a governmental practice or policy. 7 the question by concluding that "although a literal reading of 8 [Rule 23(b)(2)] might indicate otherwise, . . . it is now settled 9 that 23(b)(2) is an appropriate vehicle for injunctive relief Marcera resolved 10 against a class of local public officials." 11 (citing, inter alia, Lee, 390 U.S. 333). 12 analysis was limited, we conclude that it reflects a reasonable 13 interpretation of Rule 23(b)(2). 14 lower courts in this Circuit for some thirty years. 11 595 F.2d at 1238 Although Marcera's Marcera has been relied upon by See, e.g., The City Defendants argue that Lee is inapposite because it involved the certification of a "spurious class" under thenRule 23(a)(3), which applied to actions seeking common relief but did not bind absent class members. See Fed. R. Civ. P. 23 adv. comm. n. to 1966 amend. We are not persuaded. Although the class was certified under then-Rule 23(a)(3), the relief granted did, in fact, serve to bind absent class members. See Washington v. Lee, 263 F. Supp. at 333 34 (ordering defendant class members to completely desegregate the town and city jails and furnish reports to the Commissioner of the Board of Corrections). And the Advisory Committee Notes to the 1966 amendments found that courts had not consistently followed the former Rule 23(a)'s distinctions, categorizing classes as spurious when "it would seem fitting for the judgments to extend to the class." Fed. R. Civ. P. 23 adv. comm. n. to 1966 amend. (citing, e.g., Knapp v. Bankers Sec. Corp., 17 F.R.D. 245 (E.D. Pa. 1954), aff'd, 230 F.2d 717 (3d Cir. 1956); Giesecke v. Denver Tramway Corp., 81 F. Supp. 957 (D. Del. 1949); York v. Guaranty Trust Co., 143 F.2d 503 (2d Cir. 1944), rev'd on other grounds, 326 U.S. 99 (1945)). 24 1 Mental Disability Law Clinic v. Hogan, No. 06 Civ. 6320, 2008 WL 2 4104460, at *23, 2008 U.S. Dist. LEXIS 70684, at *67-*68 3 (E.D.N.Y. Aug. 29, 2008); Monaco v. Stone, 187 F.R.D. 50, 64 4 (E.D.N.Y. 1999); DeAllaume v. Perales, 110 F.R.D. 299, 304 5 (S.D.N.Y. 1986); see also Marcera v. Chinlund, 91 F.R.D. 579, 6 583 84 (W.D.N.Y. 1981) (certifying a defendant class on remand 7 after the Supreme Court vacated this Court s judgment in 8 Marcera); cf. Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 9 473, 483 (2d Cir. 1995) (citing Marcera for the proposition that 10 the Rule 23(a) requirements apply equally to plaintiff and 11 defendant classes). 12 We have no need to revisit, or to ask the Court to 13 revisit en banc, Marcera's holding here. 14 ultimately conclude that the State Defendant Class was, in any 15 event, improperly certified here, we need not decide the vitality 16 of Marcera in order to resolve this appeal. 17 these observations nonetheless because, were we of a contrary 18 view as to the governing law regarding defendant class 19 certification, we might well have decided this appeal on that 20 basis, in light of the vigor with which the issue of Marcera's 21 continued viability was contested before us, and because it may 22 be of some assistance to district courts that continue to rely 23 upon its holding. 25 Inasmuch as we We have offered 1 2 IV. Abuse of Discretion in Certifying Rule 23(b)(2) Defendant Class 3 Turning now to the merits of the district court's 4 decision to certify a Rule 23(b)(2) State Defendant Class in the 5 instant case, we conclude that certification was inappropriate 6 because the Defendant Class Representatives do not meet the 7 adequacy requirement of Rule 23(a) and there is insufficient 8 evidence that they meet the typicality requirement. 9 A. Adequacy 10 In order for a class representative to meet the 11 adequacy requirement of Rule 23(a), "the class members must not 12 have interests that are antagonistic to one another." 13 Joint E. & S. Dist. Asbestos Litig., 78 F.3d 764, 778 (2d Cir. 14 1996) (internal quotation marks omitted). 15 Representatives inadequately fill the role of class 16 representatives because (1) the action involves a host of legal 17 and factual issues unique to them that are likely to distract 18 from their representation of the class, and (2) they possess 19 weaker incentives to defend against the injunctive relief sought 20 by the plaintiffs than do the remaining members of the State 21 Defendant Class. 22 In re The Defendant Class First, unlike the remainder of the State Defendant 23 Class, the Defendant Class Representatives -- all of whom are 24 affiliated with New York City and among the named City 26 1 Defendants -- are subject to claims for damages, including in 2 some cases punitive damages, as well as injunctive relief. 3 claims raise many issues that may well be central to their 4 defense strategy, including whether New York City is liable for 5 damages under Monell v. Dep't of Social Services, 436 U.S. 658 6 (1978), based on its alleged custom, policy and practice of 7 unlawful enforcement of section 240.35(1); whether any city 8 officials have qualified or absolute immunity or face possible 9 liability for punitive damages; and whether New York City is Such 10 collaterally estopped from contesting liability in light of its 11 admissions as to instances of wrongful enforcement of section 12 240.35(1) in prior proceedings. 13 remainder of the State Defendant Class do not share an interest, 14 risk dominating the class representatives' attention during 15 litigation such that it will not be the case that by "defend[ing] 16 [their] own interests [they] will also be protecting the 17 interests of the class." 18 cf. Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 19 52, 59 (2d Cir. 2000) ("'While it is settled that the mere 20 existence of individualized factual questions with respect to the 21 class representative's claim will not bar class certification, 22 class certification is inappropriate where a putative class 23 representative is subject to unique defenses which threaten to 24 become the focus of the litigation.'" (quoting Gary Plastic These issues, in which the Consol. Rail Corp., 47 F.3d at 483 84; 27 1 Packaging Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 2 903 F.2d 176, 180 (2d Cir. 1990)). 3 Second, because New York City is already subject to 4 existing court orders with respect to its continued enforcement 5 of section 240.35(1), and has indeed recently been judged to be 6 in contempt of court for violating them,12 it would have little 7 incentive to oppose or defend against injunctive relief that went 8 no further than the injunctions presently in place. 9 interests are thus in tension with those of the remaining class Its 10 members, against whom there are, to the best of our knowledge, no 11 existing court orders. 12 Class Representatives are not adequate representatives of the 13 State Defendant Class. 14 B. Typicality 15 We therefore conclude that the Defendant We also conclude that there is insufficient evidence 16 that the Defendant Class Representatives' defenses are typical of 17 those at the disposal of other members of the State Defendant 18 Class. 19 receive enough evidence, by affidavits, documents, or testimony, 20 to be satisfied that each Rule 23 requirement has been met."). 21 The district court found that the typicality requirement was 22 satisfied because the members of the State Defendant Class are 12 See In re IPO, 471 F.3d at 41 ("[T]he district judge must See, supra, note 2. 28 1 all "charged with enforcing or uniformly acting in accordance 2 with a state statute, or common rule or practice of state-wide 3 application, which is alleged to be unconstitutional." 4 Kelly, 244 F.R.D. at 240 (internal quotation marks omitted). 5 the circumstances of this case, where we declared the statute at 6 issue unconstitutional many years ago and where the plaintiffs 7 seek relief that would require positive action by the State 8 Defendant Class, the facts before the district court were 9 insufficient to support a finding of typicality. 10 Brown v. In Prosecutors and law enforcement agencies throughout New 11 York State have discretion over whether to enforce applicable 12 statutes. 13 (describing the scope of prosecutorial discretion). 14 uncontested that arrests and prosecutions under section 240.35(1) 15 continued in New York City after Loper, persisting even after the 16 district court's 2005 order directing the City Defendants to 17 cease and desist enforcement. 18 1573957, at *1 *2, 2007 U.S. Dist. LEXIS 39527, at *1-*2; see 19 also Casale v. Kelly, --- F. Supp. 2d ---, Nos. 08 Civ. 2173, 05 20 Civ. 5442, 2010 WL 1685582, at *6, 2010 U.S. Dist. LEXIS 40606, 21 at *27 (S.D.N.Y. Apr. 26, 2010). 22 evidence before the district court of which we are aware that the 23 other State Defendant Class members had enforced the statute 24 post-Loper in substantial numbers or in any consistent manner. See People v. Zimmer, 51 N.Y.2d 390, 394 (1980) Here, it is See Brown v. Kelly, 2007 WL 29 By contrast, there was no 1 The only evidence relied upon by the district court in this 2 regard was OCA data that since 1992 there had been at least 673 3 criminal prosecutions by district attorney's offices charging 4 violations of section 240.35(1) in Rockland, Suffolk, Erie, and 5 Nassau Counties. 6 county, however, nor did it address the practices in the more 7 than fifty other counties included in the State Defendant Class. 8 We therefore conclude that the district court was not free to 9 decide, based on the limited information before it, that This data did not set forth violations by 10 enforcement or the risk of enforcement of this unconstitutional 11 statute was a statewide phenomenon.13 12 The lack of a statewide practice of enforcement would 13 be fatal to a finding of typicality under the circumstances of 14 this case. 15 are whether enforcement has persisted and what the scope of 16 injunctive relief, if any, should be.14 The central issues facing the State Defendant Class Because it is 13 Indeed, amicus briefs submitted to this Court on appeal indicate that some class defendants dispute that they have consistently enforced the statute after Loper. For example, Nassau County asserts that according to its data, it has utilized the statute on only three occasions in the past ten years, involving a total of six arrests. Its most recent instance of enforcement was in October 2001, and the reference to section 240.35(1) in that instance appears to have been a typographical error. New York State alleges that its State police officers have made only twenty arrests pursuant to section 240.35(1) between 1992 and March 2007. 14 The City Defendants argue that the state class defendants might have a defense that they are not bound by Loper's holding that section 240.35(1) is unconstitutional, which applied 30 1 uncontested that New York City continued regular enforcement of 2 section 240.35(1) even in the face of court orders, its possible 3 defenses to the injunctive relief sought by Brown are more 4 limited than the defenses that other defendants might have. 5 Indeed, the scope of injunctive relief appropriate against State 6 Class Defendants who have not enforced the statute, or who have 7 done so only rarely, would likely be different from the scope of 8 appropriate injunctive relief that could reasonably be imposed 9 against the City Defendants. 10 Under these circumstances, the Defendant Class Representatives' defenses are not typical.15 11 The district court responded to these typicality 12 concerns by requiring that state law-enforcement agencies be put 13 on notice of the class action, and stating that if any wished to directly against the City. Although New York State courts may not be bound by Loper's holding, see Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J. concurring), the district court is and state actors likely are. And in any event, the opinion issued during the pendency of this appeal by the New York Supreme Court Appellate Term in People v. Hoffstead, --- N.Y.S.2d ---, 2010 WL 2331432, 2010 N.Y. Misc. LEXIS 1572 (N.Y. Sup. App. Term June 10, 2010), now apparently binds the state defendants. 15 Although the district court observed that "[i]f there are counties in New York State that have never unlawfully enforced section 240.35(1), any remedies imposed on these defendants will do them no harm," Brown v. Kelly, 244 F.R.D. at 241, we find this reasoning unpersuasive. First, the injunctive relief sought by the plaintiffs includes affirmative obligations, thereby imposing burdens on the State Defendant Class. Second, an injunction places the defendants under the contempt power of the court, exposing them to risk of sanction for future violations of the statute. See, e.g., Casale, --- F. Supp. 2d ---, 2010 WL 1685582, 2010 U.S. Dist. LEXIS 40606. 31 1 oppose a permanent injunction on individualized grounds, they may 2 do so. 3 be inadequate. 4 respect to the central issues before the district court. 5 matter before us is therefore unlike instances in which we have 6 permitted class certification with notice when "the presumption 7 of class cohesion falters" in only a "portion[] of the 8 proceedings." 9 F.3d 147, 166 (2d Cir. 2001). See Brown v. Kelly, 244 F.R.D. at 241. We think this to The State Defendant Class lacks typicality with The Robinson v. Metro-North Commuter R.R. Co., 267 To allow notice to class members 10 to overcome the absence of a Rule 23(a) prerequisite in this case 11 would be to undermine Rule 23's deliberate balance between 12 facilitating class actions and protecting the interests of absent 13 class members. 14 For the reasons set forth above with respect to the 15 adequacy and typicality requirements of Rule 23(a), we conclude 16 that the district court abused its discretion in certifying the 17 State Defendant Class. 18 district court's order.16 19 20 V. We therefore vacate that portion of the Abuse of Discretion in Certifying Rule 23(b)(2) Statewide Plaintiff Class 16 At oral argument, Brown suggested that he was seeking only an order directing the defendant class to cease enforcement of section 240.35(1). This characterization differs from the relief described in the Amended Complaint and discussed by the district court, and we do not now speculate on how limiting the form of relief might affect the district court's class certification analysis on remand. 32 1 Turning to the district court's certification of a 2 State Plaintiff Class, we conclude that because Brown sought 3 certification of such a class only as part of a bilateral action 4 seeking equitable relief against a statewide class of defendants, 5 our rejection of the State Defendant Class is fatal to the 6 certification of the counterpart State Plaintiff Class. 7 Having rejected the certification of a State Defendant 8 Class, we can certify a State Plaintiff Class only if the named 9 defendants, all of whom are associated with New York City, have 10 acted or refused to act on grounds that apply generally to the 11 State Plaintiff Class, rendering injunctive relief appropriate 12 with respect to that class as a whole. 13 23(b)(2). 14 plaintiffs who have been or will be arrested, charged, or 15 prosecuted anywhere in New York State, this proposed class seems 16 clearly to include members who are not at risk of injury by the 17 City Defendants. 18 Defendants is not appropriate with respect to the statewide class 19 as a whole, and certification under Rule 23(b)(2) is improper. 20 Indeed, both Brown and the district court recognized that the 21 equitable relief sought in this action was possible only with the 22 certification of both a statewide plaintiff and defendant class. 23 See Brown v. Kelly, 244 F.R.D. at 237 (certifying a plaintiff 24 class under Rule 23(b)(2) because "[b]ringing non-City parties See Fed. R. Civ. P. Because the State Plaintiff Class is defined as Accordingly, injunctive relief against the City 33 1 into this litigation via bilateral (b)(2) class certification is 2 the only way to achieve uniformity of equitable relief for past 3 enforcement, and to effectively prevent any future enforcement 4 across the state."). 5 In light of our ruling that the State Defendant Class 6 is an inappropriate defendant class, we conclude that 7 certification of the State Plaintiff Class under Rule 23(b)(2) is 8 also inappropriate. 9 10 VI. Certification of Rule 23(b)(3) City Plaintiff Class 11 The City Defendants also challenge the district court's 12 certification of a City Plaintiff Class pursuant to Rule 13 23(b)(3). 14 discretion in certifying the City Plaintiff Class.17 15 We conclude that the district court did not abuse its The City Defendants argue that the City Plaintiff Class 16 does not meet Rule 23(b)(3)'s requirement that "the questions of 17 law or fact common to the class members predominate over any 17 Because the City Defendants' arguments focus on whether the class is maintainable under Rule 23(b)(3), we do not separately discuss the requirements of Rule 23(a). To the extent that the City Defendants contend that Brown failed to establish commonality and typicality under Rule 23(a) because individualized questions will arise, we address these arguments infra in the context of the predominance requirement of Rule 23(b)(3). See In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 n.6 (2d Cir. 2001), overruled on other grounds by In re IPO, 471 F.3d 24 (2d Cir. 2006), and superseded by statute on other grounds as stated in Attenborough v. Const. and Gen. Bldg. Laborers' Local 79, 238 F.R.D. 82, 100 (S.D.N.Y. 2006). 34 1 questions affecting only individual members." We have said that 2 "[t]he predominance requirement is met if the plaintiff can 3 establish that the issues in the class action that are subject to 4 generalized proof, and thus applicable to the class as a 5 whole, . . . predominate over those issues that are subject only 6 to individualized proof." 7 Edwards & Sons, Inc., 502 F.3d 91, 107 08 (2d Cir. 2007) 8 (internal quotation marks omitted, ellipsis in original). 9 23(b)(3) "encompasses those cases in which a class action would Cordes & Co. Fin. Servs., Inc. v. A.G. Rule 10 achieve economies of time, effort, and expense, and promote 11 uniformity of decision as to persons similarly situated, without 12 sacrificing procedural fairness or bringing about other 13 undesirable results." 14 1966 amend. 15 different class members differently[, this] does not compel a 16 finding that individual issues predominate over common ones." 17 re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 138 (2d 18 Cir. 2001) (internal quotation marks omitted), overruled on other 19 grounds by In re IPO, 471 F.3d 24 (2d Cir. 2006), and superseded 20 by statute on other grounds as stated in Attenborough v. Const. 21 and Gen. Bldg. Laborers' Local 79, 238 F.R.D. 82, 100 (S.D.N.Y. 22 2006). 23 binds class members together, variations in the sources and 24 application of a defense will not automatically foreclose class Fed. R. Civ. P. 23(b)(3) adv. comm. n. to Although "a defense may arise and may affect "As long as a sufficient constellation of common issues In 35 1 certification under Rule 23(b)(3)." 2 marks omitted and alterations incorporated). 3 Id. (internal quotation The City Defendants argue that Rule 23(b)(3) 4 certification is inappropriate because the claims at issue in 5 this case require individualized inquiries to establish 6 liability. 7 required to make individualized inquiries with respect to some of 8 the plaintiffs and some of the claims. 9 that it was within the district court's discretion to find that 10 11 We acknowledge that the district court will be We conclude, however, common issues predominated. First, there are several common questions of law and 12 fact that are shared by all of the plaintiffs and are central to 13 the damages action against the City Defendants. 14 to include: (1) whether New York City has a policy of enforcing 15 section 240.35(1), or whether the City failed to train officers 16 and prosecutors that this statute was unconstitutional; (2) 17 whether the individual defendants are entitled to qualified 18 immunity; (3) whether defendant Kelly had knowledge of the 19 unlawful acts of his subordinates; (4) whether the individual 20 defendants are liable for punitive damages; (5) whether the City 21 Defendants are estopped from arguing that they did not violate a 22 plaintiff s First Amendment rights when they arrested, summonsed, 23 or prosecuted him under section 240.35(1) because the plaintiff 24 was not actually engaged in begging; and (6) whether plaintiffs 36 They are likely 1 who were not engaged in begging but who were nonetheless 2 arrested, summonsed, or prosecuted under section 240.35(1) have a 3 colorable claim under the First Amendment because the enforcement 4 of section 240.35(1) deterred their speech. 5 are likely to be central to all of the plaintiffs' cases and 6 could be dispositive to the resolution of some claims, the 7 district court did not abuse its discretion in certifying the 8 City Plaintiff Class. 9 MDL No. 381, 818 F.2d 145, 165 67 (2d Cir. 1987) (concluding that Because these issues See In re Agent Orange Prod. Liab. Litig. 10 class certification of a plaintiff class in a mass tort action 11 was justified under Rule 23(b)(3) because of the "centrality of 12 the [defendants'] military contractor defense," despite "few, if 13 any, [other] common questions of law" and the need for "highly 14 individualistic" inquiries into causation). 15 Second, the City Plaintiff Class members' claims all 16 arise from the same core allegation: that the City Defendants 17 have continued to enforce section 240.35(1) despite our holding 18 that doing so violates the First Amendment. 19 where plaintiffs were "allegedly aggrieved by a single policy of 20 the defendants," and there is "strong commonality of the 21 violation and the harm," this "is precisely the type of situation 22 for which the class action device is suited." 23 280 F.3d at 146; see also In re Nassau County Strip Search Cases, 24 461 F.3d at 227 (noting that "because the predominance analysis 37 As we have noted, In re Visa Check, 1 tests whether the class is a sufficiently cohesive unit, all 2 factual or legal issues that are common to the class inform the 3 analysis" (internal quotation marks and citation omitted)). 4 The City Defendants argue that the claims in the 5 Complaint -- particularly those for false arrest -- require 6 individualized factual inquiries. 7 they point out that probable cause is an absolute defense, and 8 that it is determined by the existence of probable cause for any 9 crime at the time of the arrest. See Jaegly v. Couch, 439 F.3d 10 149, 152, 153-54 (2d Cir. 2006). The City Defendants could thus 11 defend an individual plaintiff's false arrest claim by arguing 12 that there was a legitimate reason for it beyond the loitering 13 charge. 14 With respect to false arrest, Although we recognize that the City Defendants may 15 raise a probable cause defense outside the loitering charge to 16 some of the plaintiffs' claims, the fact that some defendants may 17 have a probable cause defense in some cases does not render 18 certification inappropriate in light of the common central issues 19 in this action.18 20 predominate, not that the action include only common questions. Rule 23(b)(3) requires that common questions 18 Further, as Brown points out, the City Defendants' probable cause defense itself raises common legal questions, including whether the issuance of a summons always constitutes a single charge. 38 1 Nor do we agree with the City Defendants that the 2 district court misapplied In re Nassau County Strip Search Cases, 3 461 F.3d 219. 4 in concluding that common issues did not predominate in a case 5 challenging a blanket strip-search policy. 6 plaintiffs may have been searched based on reasonable suspicion, 7 thereby creating a defense to liability with respect to those 8 plaintiffs, we concluded that "[i]n light of the pervasive 9 character of the common liability issues and the admittedly de There, we decided that a district court had erred Although some 10 minimis nature of individualized liability issues, . . . the 11 District Court erred by holding that individual liability issues 12 predominated over common ones." 13 Id. at 230. The City Defendants argue that the district court 14 erroneously relied upon In re Nassau County Strip Search Cases 15 despite the fact that the individualized inquiries that will be 16 required in this case are not de minimis. 17 district court's opinion to suggest that the City Defendants' 18 probable cause defense affected only a de minimis portion of the 19 plaintiffs. 20 that despite the existence of individual issues in this action, 21 the common issues were "so pronounced and pervasive [that] they 22 overwhelmingly outweigh the more narrow inquiries that may be 23 required to resolve a subset of certain Fourth Amendment claims." But we do not read the The court's analysis centered instead on its view 39 1 Brown v. Kelly, 244 F.R.D. at 238. 2 discretion. 3 This was not an abuse of We think that the City Defendants also overstate the 4 scope of In re Nassau County Strip Search Cases. It does not 5 stand for the proposition that any individualized liability 6 issues must be de minimis in order for Rule 23(b)(3) class 7 certification to be permissible. 8 district court acted outside of its discretion in denying class 9 certification, in light of the fact that individualized liability Rather, we concluded that the 10 issues were de minimis. 11 deferential when the district court has denied class status than 12 when it has certified a class," In re Nassau County Strip Search 13 Cases, 461 F.3d at 225 (internal quotation marks omitted), the 14 decision does not establish the outer boundaries of the 15 circumstances under which a district court may find that common 16 issues predominate. 17 broader standard for finding predominance: "[A]lthough 'a defense 18 may arise and may affect different class members differently, 19 [this] does not compel a finding that individual issues 20 predominate over common ones.'" 21 280 F.3d at 138). 22 Because we are "noticeably less Indeed, the decision itself proffers a much Id. (quoting In re Visa Check, With respect to the remaining claims in this action, 23 the amount of individualized inquiry required varies 24 significantly. For example, the Complaint asserts a substantive 40 1 due process claim based on the City Defendants' enforcement of an 2 unconstitutional statute against the plaintiffs. 3 City Defendants argue that an individualized inquiry as to 4 whether the actions against each plaintiff "shock the 5 conscience," see Pena v. DePrisco, 432 F.3d 98, 112 (2d Cir. 6 2005), will be required, the same theory -- that enforcement of a 7 void statute in contravention of court orders shocks the judicial 8 conscience -- is at issue for each plaintiff. 9 also potentially require individualized inquiries, but only if Although the Other claims could 10 the district court agrees with the defendants on common threshold 11 legal questions. 12 The plaintiffs' malicious prosecution claim is 13 illustrative. The parties dispute whether the plaintiffs who 14 were prosecuted under section 240.35(1) must establish that the 15 proceedings against them were terminated in their favor -- a 16 traditional element of a malicious prosecution claim -- in light 17 of the fact that the statute had already been declared void at 18 the time of prosecution. 19 185, 193 (2d Cir. 1980) (holding that proceedings are "terminated 20 in favor of the accused" for the purpose of a malicious 21 prosecution claim only if their final disposition is such as to 22 indicate the accused is not guilty) (internal quotation marks 23 omitted). 24 prosecution under section 240.35(1) was necessarily "malicious" Cf. Singleton v. City of N.Y., 632 F.2d If the district court agrees with the plaintiffs that 41 1 because the statute had already been declared void, and therefore 2 that each plaintiff need not demonstrate that the proceedings 3 were terminated in his or her favor, then every plaintiff who was 4 prosecuted under section 240.35(1) would have essentially the 5 same malicious prosecution claim. 6 ultimately agrees with the defendants that the plaintiffs must 7 still establish termination in their favor, however, this 8 threshold legal question is itself a common preliminary issue. 9 Even if the district court Similarly, although the defendants argue that the 10 district court must determine whether the plaintiffs were 11 actually engaged in begging before finding that the enforcement 12 of section 240.35(1) constituted a First Amendment violation, the 13 district court must first decide (1) whether the defendants are 14 estopped from making such an argument in light of the fact that 15 they charged the plaintiffs with the crime of begging, and (2) 16 whether the plaintiffs' alternative First Amendment theory based 17 on the deterrent effect of an arrest, applicable to all 18 plaintiffs regardless of actual begging, has a legal basis. 19 conclude that when the claims are considered together, 20 particularly in light of the common factual and legal questions 21 that cut across them, the district court did not abuse its 22 discretion in concluding that common issues predominated. 23 24 We The district court, of course, possesses tools with which to manage the individualized inquiries that this action may 42 1 require, including creating subclasses, decertifying the class 2 with respect to claims where individualized inquiries become too 3 burdensome, and holding separate trials for plaintiffs subject to 4 individual defenses that remain after the common questions of law 5 and fact are resolved. 6 to the sound discretion of the court. 7 CONCLUSION 8 9 We leave the management of these issues For the foregoing reasons, we affirm the certification of a Rule 23(b)(3) City Plaintiff Class, but vacate the 10 certification of the Rule 23(b)(2) State Plaintiff and Defendant 11 Classes. 12 proceedings. We remand the matter to the district court for further 43

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