S.D.N.Y. Notes Split Re Whether Defendant Classes are Permissible in Class Actions under Rule 23(b)(2)

Per Brown v. Kelly, Slip Copy, 2007 WL 2156400 (S.D.N.Y. Jul 24 , 2007) (NO. 05 CIV 5442 SAS):

There is currently a split in the circuits as to whether defendant classes are permissible in class actions governed by Rule 23(b)(2). FN138 Courts ascribing to a literal reading of the Rule have held that it only permits plaintiff classes to seek injunctive and declaratory relief from individual defendants, as opposed to defendant classes. FN139 However, the Second Circuit-the only appellate court that binds this Court-has expressly rejected such a narrow interpretation of the Rule. In Marcera v. Chinlund, the court affirmed certification of a defendant class of county sheriffs and stated "it is now settled that 23(b)(2) is an appropriate vehicle for injunctive relief against a class of local public officials." FN140 Although it is employed rarely for this purpose, both before and after Marcera, Rule 23(b)(2) has been the cornerstone of bilateral civil rights class actions.

FN138. The Supreme Court has not spoken on this issue. In Zablocki v. Redhail, 434 U.S. 374, 380 n. 6 (1978), the Court noted that the appellant had not appealed the district court's certification of a(b)(2) defendant class, but did not otherwise address this point.

FN139. See Paxman v. Campbell, 612 F.2d 848, 854 (4th Cir.1980) ( "As is clear from the language of the Rule, it is applicable to situations in which a class of plaintiffs seeks injunctive relief against a single defendant .... To proceed under 23(b)(2) against a class of defendants would constitute the plaintiffs as 'the party opposing the class,' and would create the anomalous situation in which the plaintiffs' own actions or inactions could make injunctive relief against the defendants appropriate."). Accord Tilley v. TJX Cos., Inc., 345 F.3d 34, 40 (1st Cir.2003); Henson, 814 F.2d at 415-17; Thompson, 709 F.2d at 1204.

FN140. 595 F.2d at 1238. Accord Southern Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d 1023 (10th Cir.1993) (affirming certification of a(b)(2) defendant class); Baker v. Wade, 743 F .2d 236, 244 (5th Cir.1984) (certification of a(b)(2) defendant class was proper where the named defendants would adequately represent the class and "the true interest at stake" was "that of the State of Texas in the constitutionality of its duly enacted legislation"). See also Luyando, 124 F.R.D. at 58 (certifying a(b)(2) defendant class); Follette v. Vitanza, 658 F.Supp. 492, 506 (N.D.N.Y.1987) (same); DeAllume, 110 F.R.D. at 304 (same). The Second Circuit's decision in Marcera was vacated on grounds completely distinct from the court's holding with respect to certification of the (b)(2) defendant class. See Marcera, 442 U.S. at 915 (remanding the case for further consideration in light of recent precedent regarding inmate confinement facilities). Indeed, on remand, the district court, in applying the new substantive law, again certified a(b)(2) defendant class, which was not disturbed on appeal. Accordingly, Marcera remains good law in this Circuit and is binding on this Court.