8.10.2007

W.D. Pennsylvania Notes Split Re Whether Monetary Relief Predominates in a Rule 23(b)(2) Class Suit

Per Hohider v. United Parcel Service, Inc., --- F.R.D. ----, 2007 WL 2077709 (W.D. Pa. Jul 16, 2007) (NO. CIV.A. 04-363):
The United States Courts of Appeals that have addressed the issue of how a district court should determine whether monetary relief predominates in a Rule 23(b)(2) class have taken roughly two approaches. In Richards v. Delta Air Lines, Inc., 453 F.3d 525, 531 n. 8 (D.C.Cir.2006), the court commented:

There is a split among circuits on how a court determines whether monetary relief predominates in a Rule 23(b)(2) class suit. Compare Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998) ("[M]onetary relief predominates in (b)(2) class actions unless it is incidental to requested injunctive or declaratory relief."); Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 447-50 (6th Cir.2002); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001); Lemon v. Int' l Union of Operating Eng'rs, Local No. 139, 216 F.3d 577, 580-81 (7th Cir.2000), with Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 162-67 (2d Cir.2001) (adopting a more ad hoc balancing approach to whether monetary damages predominate); Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir.2003). Id. The court of appeals in Richards noted this apparent split in authority in passing, determining that the issue was not presented in that case because both the district court and the court of appeals had determined that monetary relief was effectively the only remedy sought in that case, although the plaintiff there had framed the relief sought in terms of declaratory and injunctive relief. Id. at 530-31.

On the one hand, following the rationale adopted by the United States Court of Appeals for the Fifth Circuit in Allison v. Citgo Petroleum Corp., 151 F.3d 402, 415 (5th Cir.1998), several courts of appeals have followed the so-called "incidental damages approach ." See Reeb v. Ohio Dept. of Rehab. & Correction, 435 F.3d 639 (6th Cir.2006); Coleman v. Gen. Motors Acceptance Corp., 296 F.3d 443, 447-50 (6th Cir.2002); Murray v. Auslander, 244 F.3d 807, 812 (11th Cir.2001); Lemon v. Int'l Union of Operating Eng'rs, Local No. 139, 216 F.3d 577, 580-81 (7th Cir.2000). The incidental damages approach, however, has been rejected by courts of appeals in at least two circuits in part because those courts of appeals reason that it amounts to a per se prohibition of the recovery of compensatory damages in Title VII anti-discrimination Rule 23(b)(2) class action lawsuits and strips district courts of discretion traditionally vested in them under Rule 23. See Molski v. Gleich, 318 F.3d 937, 949-50 (9th Cir.2003); Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 162-67 (2d Cir.2001). This court shall examine both approaches and the decisions cited in a recent although nonprecedential decision of the United States Court of Appeals for the Third Circuit to determine whether monetary relief predominates over declaratory or injunctive relief in this class action, and if so, what consequences follow in this putative Rule 23(b)(2) class action.

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