NEAL B. BIGGERS, JR., Senior United States District Judge.
This cause comes before the court on the motion of Lillie B. Ayers and ninety-eight other private plaintiffs to opt out of the private plaintiff class. An evidentiary hearing was held on October 23 and 24, 2001, the parties have submitted pre-hearing memoranda, as well as preliminary responses and supporting memoranda, and the movants submitted a post-hearing memorandum.
This action commenced on January 28, 1975. Twenty-one named plaintiffs, African-American citizens of the State of Mississippi, filed the original complaint seeking declaratory, injunctive and other relief for alleged racial discrimination in employment and educational practices and opportunities in the States system of higher education in violation of the rights of plaintiffs and the classes they represent. The style of the original complaint designates the named plaintiffs as persons bringing the action individually and on behalf of all others similarly situated. The amended complaint filed on April 7, 1975 expressly states in part:
The original complaint requests, inter alia, an [o]rder that plaintiffs and the members of their class be granted such other and further relief as may be just and proper. The amended complaints seek an award of attorney s fees and costs, as well as declaratory, injunctive and other and further relief as may be just and proper.
Plaintiffs bring this cause on their own behalf and on behalf of all others similarly situated, said class being more particularly described as all black persons who have been, are or will be subjected to racial discrimination by each of the aforesaid defendants individually and/or severally in the provision of equal educational opportunity and/or equal employment opportunity.
The amended complaint further states in part:
As to such classes of persons, the members of the classes are so numerous that joinder of all members is impracticable. There are questions of law and fact common to all members of the classes. The claims of the plaintiffs are typical of the claims of the classes. The plaintiffs will fairly and adequately protect and represent the interests of the classes. And the defendants have acted in ways generally applicable to the classes thereby making appropriate final injunctive and declaratory relief with respect to the classes as a whole.
(Emphasis added.)
On September 17, 1975 the court issued an order, inter alia, certifying the instant cause as a maintainable class action:
Finding that Rule 23 prerequisites are satisfied by private plaintiffs
to maintain a class action under Rule 23(b)(2), the court certifies that the action brought by private plaintiffs against the Board of Trustees shall be on behalf of a plaintiff class defined as all black citizens residing in Mississippi, whether students, former students, parents, employees, or taxpayers, who have been, are, or will be discriminated against on account of race in receiving equal educational opportunity and/or equal employment opportunity in the universities operated by said Board of Trustees.
Rule 23(b)(2) of the Federal Rules of Civil Procedure provides:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
None of the parties objected to class certification pursuant to Rule 23(b)(2). The issue before the court at this time is whether a class member or a group of class members at this juncture may opt out of the class in order to further litigate some of the issues raised in the original complaint which have yet to be resolved. Many of the original issues have been already disposed of by trials and affirmances by the Fifth Circuit Court of Appeals.
See infra note 9.
On March 30, 2001, the court was advised by the parties attorneys in an in-chambers conference that a formal motion for court approval of an executed settlement proposal was forthcoming. On March 28, 2001, the opt-out movants filed a motion in opposition to the settlement agreement procedure and on March 30, 2001, the instant motion to opt out was filed. On April 23, 2001, the private plaintiffs, United States and the defendants filed a joint motion for approval of their settlement proposal, notice to the class and a fairness hearing and, thereafter, the opt-out movants renewed their request for a hearing on the instant motion.
The proposed settlement agreement was signed on March 29, 2001.
The motion in opposition to the settlement agreement procedure requests a hearing prior to the court s ruling on the joint motion for court approval of the proposed settlement.
It is well settled that Rule 23(b)(2) class members do not have an absolute right to opt out of the class. E.g., Penson v. Terminal Transport Co., 634 F.2d 989, 993, 994 (5th Cir. 1981) (a member of a class certified under Rule 23(b)(2) has no absolute right to opt out of the class, even where monetary relief [typically back pay in employment discrimination actions] is sought and made available). See Kincade v. General Tire Rubber Co., 635 F.2d 501, 506 (5th Cir. 1981) (The right to opt out of a class in a pending class action is provided for in Rule 23(c)(2) of the Federal Rules of Civil Procedure; that right, as well as the right to notice, is explicitly limited to class actions brought under Rule 23(b)(3)). In Rule 23(b)(3) class actions, the questions of law or fact common to the members of the class predominate over any questions affecting only individual members. See Eisen v. Carlisle Jacquelin, 417 U.S. 156, 177 n. 14, 40 L.Ed.2d 732, 748 n. 14 (1974) (By its terms subdivision (c)(2) is inapplicable to class actions for injunctive or declaratory relief maintained under subdivision (b)(2).); Bolton v. Murray Envelope Corp., 553 F.2d 881, 883 (5th Cir. 1977) (Rule 23 does not require notice for (b)(2) type actions.) (quoting Robinson v. Union Carbide Corp., 544 F.2d 1258, 1260 (5th Cir.), cert. denied., 434 U.S. 822, 54 L.Ed.2d 78 (1977)).
The automatic right to be excluded from Rule 23(b)(3) class actions is consistent with the distinctions between (b)(2) actions which typically involve civil rights claims and (b)(3) actions in which monetary relief is commonly sought. See Penson, 634 F.2d at 993-94 (Rule 23 does not mandate any notice of an opt-out right for members of a class certified under Rule 23(b)(2) [since] there is purportedly a greater degree of cohesiveness or unity in the class than in 23(b)(3) actions, which minimizes the need for notice and a right to opt out of the class.) (citations omitted). The Fifth Circuit in Penson explained:
Kincade v. General Tire Rubber Co., 635 F.2d 501, 506 n. 6, 507 (5th Cir. 1981) (the right to opt out, which is denied when a Rule 23(b)(2) case is tried, also need not be provided when such a case is settled).
This opt-out right is required in 23(b)(3) actions because it was presumed that, where personal monetary relief is being sought, the individual class members may have a strong interest in pursuing their own litigation.
Id. at 993.
A district court, however, acting under its Rule 23(d)(2) discretionary power, may require that an opt-out right and notice thereof be given should it believe that such a right is desirable to protect the interests of the absent class members. Penson, 634 F.2d at 994 (citations omitted). Other circuits have construed Rule 23(d)(5) as authorizing district courts to grant opt-out rights. E.g., Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997); County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1304 (2d Cir. 1990). Rule 23(b)(2) class actions in which district courts have granted the opt-out right involve hybrids of a Rule 23(b)(2) class and a Rule 23(b)(3) class in that class members seek equitable relief as a group and monetary relief, such as back pay, as individuals. See Holmes v. Continental Can Co., 706 F.2d 1144, 1155 (11th Cir. 1983) (the relief portion of subsection (b)(2) visualizes claims common to the entire class). In a hybrid class certified under Rule 23(b)(2), due process may warrant the opt-out right if individual claims cannot be adequately represented. Id. at 1152, 1154-55, 1160 (conflict between certain class members monetary claims in a Title VII action and settlement terms as to the distribution of a lump sum back pay fund called for an opt-out clause in the settlement agreement; the monetary relief stage of this particular Title VII case is functionally more similar to a (b)(3) class than to a (b)(2) class).
Fed.R.Civ.P. 23(d)(2) provides: In the conduct of actions to which this rule applies, the court may make appropriate orders: . . . (2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action.
Fed.R.Civ.P. 23(d)(5) provides: In the conduct of actions to which this rule applies, the court may make appropriate orders: . . . (5) dealing with similar procedural matters.
The court finds that the movants have failed to show the existence of individual claims separate and distinct from the claims for classwide relief. It is clear that the instant cause is not a hybrid; it is a pure Rule 23(b)(2) class action in which the claims alleged and proved are claims for which only classwide relief may be granted. See Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614, 138 L.Ed.2d 689, 707 (1997) (Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples of class actions certified under Rule 23(b)(2)); Bailey v. Patterson, 323 F.2d 201, 207 n. 7 (5th Cir. 1963) (an action alleging discrimination against a class as a class . . . is assuredly appropriate for class relief) (citations omitted), cert. denied, 376 U.S. 910, 11 L.Ed.2d 609 (1964). Therefore, the nature of the discrimination claims of the class members herein does not constitute a ground for a discretionary right to opt out of the class.
The movants further assert inadequate representation as a ground for leave to opt out. The movants contend that the court has a continuing obligation following class certification to assess the prerequisites of class action maintenance, including the requirement that the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a)(4). Bennie G. Thompson, individually and as class representative on behalf of the class, and Isaac Byrd on behalf of Robert Pressman and Armand Derfner, as counsel for the private plaintiff class, signed the proposed settlement agreement executed by all the parties. By order issued on March 30, 2000, the court named United States Congressman Bennie G. Thompson, a named plaintiff in the original complaint and all amended complaints, as lead plaintiff in this cause. The order states in pertinent part:
Congressman Thompson is one of the original named plaintiffs who brought this suit against the defendants herein and has been more active than any other plaintiff in pursuing this case, having appeared before the court on several occasions as a witness and representative of the plaintiff class and also at conferences. Mr. Thompson is directed to name the lead attorney for the private plaintiffs to the court within thirty (30) days of this order.
Alvin O. Chambliss, Jr., counsel for the movants, was one of the longtime attorneys for the entire class acknowledged in the March 30 order. Neither Alvin Chambliss nor any private plaintiff class member objected to the court s designation of the lead private plaintiff or the entry of appearance of the law firm of Byrd and Associates as additional counsel of record for the private plaintiff class. By order issued on May 18, 2000, the court stated:
Alvin O. Chambliss, Jr. was one of the attorneys of record for the private plaintiffs seeking class certification from the outset of this cause.
Pursuant to the courts March 30, 2000 order, lead plaintiff Bennie G. Thompson has designated Isaac K. Byrd, Jr., as lead counsel for the private plaintiffs.
Neither Mr. Chambliss nor any class member objected to the designation of Mr. Byrd as lead counsel for the private plaintiffs.
One year after the designation of Mr. Thompson as lead private plaintiff and ten and one-half months after the designation of Mr. Byrd as lead class counsel, Mr. Chambliss and the opt-out movants object to their settlement efforts on the grounds of noncompliance with the prerequisites of class certification and maintenance of the class action under Rule 23(a)(3) and
(4). Rule 23(a) provides in pertinent part:
(a) Prerequisites to a Class Action. One or more members of a class may sue as representative parties on behalf of all only if . . . (3) the claims of the representative parties are typical of the claims of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
The fact that Mr. Thompson is a United States Congressman, and thus a distinguished member of the class, does not establish that his interest in upgrading and desegregating the HBIs in the State of Mississippi are atypical of the claims of all other class members. Since all the claims raised and adjudicated in this action are exclusively class-based claims, Congressman Thompson s claims are not only typical but also the same as the claims of the average class member. The movants allegation of inadequate representation on the part of Mr. Thompson and Mr. Byrd is based solely on their dissatisfaction with the terms and omissions in the settlement proposal, thereby confusing the right to opt out of the class with the right to object to the settlement proposal. If these rights were not separate and distinct, then there would be no need to give class members an opportunity to object at a fairness hearing, as required under Rule 23(e).
The court heard the testimony of several class members explaining their reasons for wanting to opt out of the class. Such testimony was merely for the most part a restatement of the testimony heard at the Fairness Hearing conducted on September 4 through 9, 2001 in disagreement with the proposed settlement. The opt-out hearing was like deja vu all over again. In any event, the court will consider the testimony of the opt-out movants along with the testimony of objectors heard during the Fairness Hearing in deciding hereafter whether to accept or reject the settlement proposal.
An expression attributed to Yogi Berra.
The fact that Mr. Byrd s law practice may be predominantly personal injury litigation does not establish his incompetence in representing the legal interests of the class of which he himself is a member. Mr. Chambliss did not explicitly challenge the competence or intentions of Mr. Byrd s co-counsel but complained that Mr. Byrd, as lead class counsel, called the shots. It appears to the court, that at the very least, Mr. Chambliss is complaining that Mr. Pressman and Mr. Derfner merely acquiesced in Mr. Byrd s decision to approve the proposed settlement. As noted in the March 30, 2000 order, attorneys Robert Pressman and Armand Derfner have represented the private plaintiffs since the trial in 1994. Designating Mr. Pressman as interim lead counsel, the court stated in the March 30 order:
Until the lead attorney is so named to the court, the court will name Mr. Robert Pressman as lead attorney. Mr. Pressman has been the primary attorney for the private plaintiffs since North Mississippi Rural Legal Services resigned its representation of the private plaintiffs in 1995. Mr. Pressman has been at times the only attorney appearing in court at post-trial hearings on behalf of the private plaintiffs and the only attorney in regular contact with the court in the court s monitoring of the implementation of the remedial decree to end this case. For those reasons, the court is of the opinion that he is a fit and proper person to be named lead attorney until lead plaintiff makes that decision.
Upon due consideration, the court finds the allegations of inadequate representation of class members wholly unsubstantiated. The court finds that Mr. Byrd, retained and named by Mr. Thompson, the lead private plaintiff, as lead counsel for the class, is a competent attorney whose co-counsel, Mr. Pressman and Mr. Derfner, undisputedly competent and long-time attorneys for the class, actively participated in the settlement negotiation process, along with the independent participation of the United States Department of Justice attorneys, whose competent representation of the United States for more than twenty-five years is undisputed. There is no evidence in the record of collusion in the settlement negotiations, as alleged in the movants pre-hearing memorandum. Some of the opt-out movants testified that they did not have input in the negotiation of the terms of the proposed settlement agreement. There is no legal basis for the asserted right of each class member to directly participate in settlement negotiations. The purpose of class certification is to eliminate intractable problems of all aspects of litigation, including settlement efforts, as well as trial management. See Fed.R.Civ.P. 23(a)(1) (the class is so numerous that joinder of all members is impracticable).
The class, as certified in 1975, has existed for more than twenty-five years throughout lengthy and vigorous litigation. The instant motion to opt out was clearly filed in anticipation of a formal submission to the court of the settlement proposal that was the subject of the Fairness Hearing. The court finds that the movants have neither the right to opt out nor any valid ground to exercise such a right. There is no basis for allowing any member of the class to opt out and begin separately and anew, particularly at this stage of this prolonged class action.
For the forgoing reasons, the motion to opt out must be denied. Since the movants have been granted the opportunity to establish their asserted right to opt out of the class in the form of pre-hearing and post-hearing memoranda, oral argument and an evidentiary hearing, during which the court was lenient in enforcing the rules of evidence, the court finds that their motion in limine to require class counsel to give the court a detail accounting regarding efforts made to protect the interest of absent class members is not well taken and should be denied and that the motion in opposition to the settlement agreement procedure (emphasis added) filed on March 28, 2001 should be denied as moot. The court further finds that the opt-out movants motion to require defendants, United States Government and Thompson Plaintiff to establish affirmatively that the proposed settlement will result in Mississippi statewide system of higher education become unitary is not well taken and should be denied.
The motion in limine was filed on October 24, 2001, the second and final day of the hearing on the instant motion to opt out of the class.
See supra note 5.
This motion was filed contemporaneously with the motion in limine on October 24, 2001, the second and final day of the hearing on the instant motion to opt out of the class.
The denial of this opt-out motion should in no way be regarded as affecting the ruling of the court on the yet-to-be decided settlement proposal.
ORDER
In accordance with the memorandum opinion issued this day, it is ORDERED:
That the motion of Lillie B. Ayers and ninety-eight other private plaintiffs to opt out of the private plaintiff class is DENIED;
That the opt-out movants motion in opposition to the settlement agreement procedure filed on March 28, 2001 is DENIED AS MOOT;
That the opt-out movants motion in limine to require class counsel to give the court a detail accounting regarding efforts made to protect the interest of absent class members is DENIED; and
That the the opt-out movants motion to require defendants, United States Government and Thompson Plaintiff to establish affirmatively that the proposed settlement will result in Mississippi statewide system of higher education become unitary is DENIED.