Cohen v. Walsh ( 2021 )

United States Court of Appeals
For the First Circuit
No. 21-1032
AMY COHEN ET AL., individually and on behalf of all others
similarly situated,
Plaintiffs, Appellees,
v.
BROWN UNIVERSITY ET AL.,
Defendants, Appellees,
ABIGAIL WALSH; LAUREN LAZARO; ROSE DOMONOSKE; MEI LI COSTA; ELLA
POLEY; ALYSSA GARDNER; LAUREN MCKEOWN; ALLISON LOWE; TINA
PAOLILLO; EVA DURANDEAU; MADELINE STOCKFISH; SONJA BJORNSON,
Objectors, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. John J. McConnell, Jr., U.S. District Judge]
[Hon. Patricia Sullivan, U.S. Magistrate Judge]
Before
Howard, Chief Judge,
Selya and Lynch, Circuit Judges.
Robert J. Bonsignore, with whom Lisa Sleboda, Bonsignore
Trial Lawyers, PLLC, Anthony J. Gianfrancesco, and Gianfrancesco
& Friedmann LLP were on brief, for objectors.
Lynette Labinger, with whom Arthur H. Bryant, Bailey &
Glasser, LLP, Lori Bullock, and Newkirk Zwagerman were on brief,
for plaintiffs.
Marcella Coburn, with whom Roberta A. Kaplan, Gabrielle E.
Tenzer, Kaplan Hecker & Fink LLP, Robert Clark Corrente, and Whelan
Corrente & Flanders LLP were on brief, for defendants.
October 27, 2021
SELYA, Circuit Judge. This landmark Title IX case does
not come to us as a stranger. Shortly after a group of women
student-athletes brought suit against Brown University (Brown)
claiming gender discrimination with respect to the funding and
operation of a panoply of varsity athletic programs, the district
court certified a class and entered a preliminary injunction sought
by the plaintiffs. See Cohen v. Brown Univ. (Cohen I), 809 F.
Supp. 978, 980, 1001 (D.R.I. 1992).
We upheld the issuance of the preliminary injunction,
concluding (among other things) that the plaintiffs were likely to
succeed in their suit. See Cohen v. Brown Univ. (Cohen II), 991
F.2d 888, 904, 907 (1st Cir. 1993). After a bench trial, the
district court found that Brown had violated Title IX by failing
effectively to accommodate the interests and abilities of women
athletes. See Cohen v. Brown Univ. (Cohen III), 879 F. Supp. 185,
200, 211-14 (D.R.I. 1995).
When the district court rejected Brown's proposed
compliance plan, Brown again appealed. We affirmed the district
court's judgment in part, reversed it in part, and remanded for
further proceedings. See Cohen v. Brown Univ. (Cohen IV), 101
F.3d 155, 162, 188 (1st Cir. 1996). The parties subsequently
consummated a settlement. That settlement, given bite by the
imprimatur of the district court, has remained in effect for over
two decades.
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As time went by and circumstances changed, Brown
unilaterally decided in 2020 to eliminate certain varsity sports
and to upgrade sailing to varsity status (open to men and women).
With this reshuffling on the table and renewed litigation in the
offing, the parties opted to revisit all of the matters embodied
in the court-approved settlement. Following protracted
negotiations, ably coordinated by a magistrate judge, Brown and
the class achieved a meeting of the minds and jointly moved for
approval of a revised agreement (the Amended Settlement
Agreement). But not all class members were pleased by the terms
of the proposed amended settlement: some of them objected (the
Objectors), complaining that the named plaintiffs were not
adequate representatives of the class and that the settlement's
terms gave parts of the class a raw deal. The district court held
a fairness hearing and overruled the objections. The court, ruling
from the bench, found that the proposed amended settlement was
fair, reasonable, and adequate. Dismayed by the district court's
approval of the Amended Settlement Agreement, the Objectors
appealed.
We are mindful that — especially in institutional reform
cases — class-wide relief must be adapted to reflect changing times
and circumstances. One such circumstance, relevant here, is that
the prophylaxis of Title IX has matured since the class-wide
settlement was originally put in place. Another relevant
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circumstance is that, over a span of many years, Brown has
demonstrated an increased awareness of and sensitivity to the
constraints that Title IX imposes upon a university's varsity
athletic programs. Last — but surely not least — striking the
Title IX balance in a case of this kind is more an art, informed
by experience, than a science. District courts are on the front
lines when assessing class-wide relief and considerable deference
is due to the exercise of their informed discretion. After careful
consideration of the genesis of the litigation, its history and
objectives, and Brown's evolving response to the demands of Title
IX, we conclude that the district court's approval of the Amended
Settlement Agreement was within the wide encincture of its
discretion. Consequently, we affirm the judgment below.
I. BACKGROUND
We briefly rehearse the relevant facts and travel of the
case starting with its historical roots and proceeding to its
present-day posture.
A. The 1990s: Skirmishes and Settlement.
In 1991, Brown downgraded four athletic teams — women's
volleyball and gymnastics, men's golf and water polo — from full
varsity status to intercollegiate club status. See Cohen II, 991
F.2d at 892. The next year, several members of the women's
volleyball and gymnastics teams sued Brown under Title IX and its
implementing regulations, charging that — with respect to its
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athletic programs — Brown did not "effectively accommodate the
interests and abilities of members of both sexes." Id. at 892-96(quoting 34 C.F.R. § 106.41(c)(1)). The district court certified
a class of "all present and future Brown University women students
and potential students who participate, seek to participate,
and/or are deterred from participating in intercollegiate
athletics funded by Brown." Id. at 893. The designated class
representatives were women student-athletes then-enrolled at
Brown. Those representatives — all of whom have long since
graduated — remain the class representatives today, save for two
who dropped out along the way. So, too, the original class counsel
remain aboard.
In late 1992, the district court issued a preliminary
injunction in favor of the plaintiffs. See Cohen I, 809 F. Supp.
at 1001. Forced to "invade terra incognita" at an untrammeled
"crossroads of the law," we affirmed. Cohen II, 991 F.2d at 893,
907. The district court subsequently held a trial on the merits.
In the midst of trial, the parties reached a partial settlement
regarding the disparate-funding portion of the plaintiffs' claims,
and the district court approved that settlement. See Cohen III,
879 F. Supp. at 192-93. What remained were the claims of disparate
participation opportunities. See id. At the end of the trial,
the district court ruled that Brown had violated Title IX in that
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respect and ordered it to submit a compliance plan. See id. at
213-14.
Brown proposed to cut some men's varsity teams as a means
of leveling the playing field between the sexes, but the district
court rejected this proposal and instead ordered Brown to elevate
and maintain specific women's teams. See Cohen IV, 101 F.3d at
162, 187. A divided panel of this court affirmed the district
court's ruling that Brown was in violation of Title IX. See id.
at 162. The panel majority also agreed with the district court
that Brown's proposal was not "a good faith effort." Id. at 187.
We nonetheless concluded "that Brown's proposal to cut men's teams
[was] a permissible means of effectuating compliance with the
statute" and, thus, "the district court was wrong to reject out-
of-hand Brown's . . . plan." Id. We remanded to give Brown
another chance to come up with an acceptable compliance plan. See
id. at 188.
In June of 1998, the parties reached a comprehensive
settlement, dubbed the Joint Agreement, which the district court
approved. In major part, that agreement locked in a proportional
representation scheme: the percentage of each gender's athletes
at Brown must lie within 3.5% or 2.25% (depending on the
circumstances) of each gender's respective undergraduate campus
presence. The Joint Agreement required Brown to submit a
compliance report annually to class counsel. It also created a
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mechanism for the parties to exchange objections and replies
concerning Brown's compliance or the lack thereof.
By its terms, the Joint Agreement was "indefinite in
duration" and provided that the district court would "retain
jurisdiction concerning interpretation, enforcement and
compliance" with its stipulations.
B. The Latest Skirmish and Settlement.
For twenty-two years, Brown's athletes played on the
turf of this Joint Agreement. Brown dutifully submitted its annual
report each August. On the few occasions when issues surfaced,
the parties resolved them without judicial intervention.
In May of 2020, a new era dawned. Christina Paxson, who
had become Brown's president well after the fact and who was a
defendant in the case by virtue of her office, announced the
"Excellence in Brown Athletics Initiative" (the Initiative). With
a view toward making Brown's programs more competitive overall,
the Initiative purposed to downgrade five women's teams and six
men's teams from varsity status to club status,1 while elevating
the women's sailing and co-ed sailing teams to varsity status.
The planned hit to the men's track, field, and cross country teams,
in particular, provoked a fierce backlash. In a June 6 public
1 The teams that the Initiative placed on the chopping block
were men's and women's fencing, men's and women's golf, women's
skiing, men's and women's squash, women's equestrian, men's track,
men's field, and men's cross country.
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statement, President Paxson contended that simply restoring men's
track, field, and cross country would place Brown in violation of
the Joint Agreement. Nevertheless, Brown bowed to the pressure
three days later: President Paxson announced that Brown would not
downgrade the men's track, field, and cross country teams. It
would achieve compliance with the Joint Agreement "for the time
being" by making other (unspecified) programmatic "modifications."
The class representatives were not inclined to
acquiesce. Through class counsel, they asserted that Brown was
violating the Joint Agreement and moved for enforcement of the
decades-old judgment and for emergency relief. Expedited
litigation ensued. Each side engaged in document discovery,
exchanged expert reports, deposed witnesses, and filed briefs.2
In September of 2020, the parties entered into mediation
under the auspices of a magistrate judge — a process that class
counsel later described as "intense shuttle diplomacy, spanning
nearly two dozen conferences." The mediation resulted in a
negotiated settlement. The Amended Settlement Agreement, styled
as a modification of the Joint Agreement, expires by its terms on
2 In one email exchange produced in discovery, Brown's
chancellor suggested to President Paxson that they might "go after
the Consent Decree once and for all," wondering if they could
"channel all this emotion away from anger at Brown to anger at the
court and kill this pestilential thing" — a reference to the Joint
Agreement. President Paxson praised the idea, adding that "[t]his
might be the perfect moment to petition the court to get us out of
this agreement."
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August 31, 2024. Until then, Brown must restore two women's teams
to varsity status3 and may not downgrade any women's varsity team.
And should Brown elect to make a permitted upgrade of any men's
team to varsity status, it must restore an equal number of women's
teams plus two to varsity status.4
The parties asked the district court to approve the
Amended Settlement Agreement and notice was provided to the members
of the class. See Fed. R. Civ. P. 23(e)(1)-(2). Twelve members
of Brown's varsity women's gymnastics and hockey teams objected to
the proposed settlement. They argued, as relevant here, that the
named class representatives were inadequate representatives of the
class and that the proposed settlement was not "fair, reasonable,
and adequate," as required by Federal Rule of Civil Procedure
23(e)(2). The district court held a fairness hearing by
videoconference on December 15 and approved the Amended Settlement
Agreement. The court singled out for praise the "masterful" work
of the magistrate judge and the diligence of both President Paxson
and class counsel. In rejecting the Objectors' contentions, the
court pointed out that "[t]he number of objectors represents a
3 Pursuant to this clause, Brown chose to restore the women's
equestrian team and the women's fencing team.
4 The Amended Settlement Agreement also resolves a more
interstitial dispute. Under it, each student-sailor counts only
once, even when that sailor competes on multiple sailing squads.
The Amended Settlement Agreement, though, does not resolve the
larger question of whether the women's and co-ed sailing teams are
to be regarded as separate teams.
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very small fraction of the class members as a whole," and this
fact "is in and of itself representative of the settlement's
reasonableness." This timely appeal followed.
II. ANALYSIS
In this venue, the Objectors advance two principal
claims of error. First, they assert that the designated class
representatives "did not, and could not," adequately represent the
class as a whole. Second, they assert that the district court
abused its discretion in determining that the Amended Settlement
Agreement was fair, reasonable, and adequate. As class members,
the Objectors have standing to pursue these claims of error. See
Devlin v. Scardelletti, 536 U.S. 1, 14 (2002) (holding that
nonnamed class members who objected at fairness hearing may appeal
without intervening).
We start with some general principles. A district court
may approve a class-action settlement only if that settlement is
"fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(2).
Before 2018, the case law refracted this standard into a "laundry
list[] of factors." Bezdek v. Vibram USA, Inc., 809 F.3d 78, 82
(1st Cir. 2015) (quoting Nat'l Ass'n of Chain Drug Stores v. New
England Carpenters Health Benefits Fund, 582 F.3d 30, 44 (1st Cir.
2009)). Sensing a need "to focus the court and the lawyers on the
core concerns of procedure and substance that should guide the
decision whether to approve the proposal," Congress revised the
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rule to highlight four factors. Fed. R. Civ. P. 23(e)(2) advisory
committee's note to 2018 amendments.5 Rule 23(e)(2) now requires
that the district court "consider[] whether":
(A) the class representatives and class
counsel have adequately represented the class;
(B) the proposal was negotiated at arm's
length;
(C) the relief provided for the class is
adequate . . . and
(D) the proposal treats class members
equitably relative to each other.
Fed. R. Civ. P. 23(e)(2). The Advisory Committee explained that
the first two factors are "procedural" in nature, "looking to the
conduct of the litigation and of the negotiations leading up to
the proposed settlement." Id. advisory committee's note to 2018
amendments. As a corollary, the latter two factors guide "a
'substantive' review of the terms of the proposed settlement."
Id.We have observed that "the ultimate decision by the
[district court] involves balancing the advantages and
disadvantages of the proposed settlement as against the
consequences of going to trial or other possible but perhaps
unattainable variations on the proffered settlement." Nat'l Ass'n
of Chain Drug Stores, 582 F.3d at 44. Consequently, approval or
rejection of a class-action settlement is entrusted to the district
5Importantly, the Advisory Committee noted that the amendment
was not intended to "displace any factor" previously in use. Fed.
R. Civ. P. 23(e)(2) advisory committee's note to 2018 amendments.
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court's informed discretion. See Robinson v. Nat'l Student
Clearinghouse, 14 F.4th 56, 59 (1st Cir. 2021). We review the
district court's determination for abuse of that discretion — a
multifaceted standard under which we scrutinize embedded legal
issues de novo and factual findings for clear error. See id.With this backdrop in place, we turn to the specifics of
the Objectors' appeal.
A. Threshold Issues.
At the outset, we must iron out two procedural wrinkles.
Both wrinkles relate to class counsel's entreaty that we decline
to entertain the Objectors' plaints as to adequacy of
representation. Class counsel first submits that this issue was
not squarely presented below and, thus, was not preserved for
appeal. See Teamsters Union, Local No. 59 v. Superline Transp.
Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is settled
in this circuit, it is that, absent the most extraordinary
circumstances, legal theories not raised squarely in the lower
court cannot be broached for the first time on appeal."). Second,
class counsel submits that we are precluded from revisiting the
adequacy of class representation where, as here, no motion for
either decertification or modification of the class was made below.
The first of these two procedural barriers is easily
scaled. We agree that the Objectors did not make this claim with
lapidary precision. But the essence of the argument was advanced,
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and the rule that only arguments "actually articulated in the trial
court" are preserved for appellate review reflects the insight
that "[o]verburdened trial judges cannot be expected to be mind
readers." McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22 (1st
Cir. 1991). This does not mean, however, that we should assume
that trial judges are dense. Here, we have no reason to doubt
that the district court grasped the gist of the Objectors'
argument. Cf. United States v. Sineneng-Smith, 140 S. Ct. 1575,
1581 (2020) (observing that "a court is not hidebound by the
precise arguments of counsel"). The argument was not waived.
We also conclude that the second procedural barrier does
not block our consideration of the Objectors' claim. The class
representatives, through class counsel, argue that because the
class has been certified since 1992, untouched by any motion to
decertify or modify the class, the adequacy of class representation
remains "the law of the case." In their view, the Objectors may
challenge this "law of the case" only by seeking decertification
or modification of the class, which they failed to do.
For this proposition, the class representatives rely
primarily on our decision in Voss v. Rolland, 592 F.3d 242 (1st
Cir. 2010). That reliance is mislaid. In Voss, we declined to
consider objectors' arguments regarding adequacy of representation
in the class-action settlement context. See id. at 251. We
explained that the class had been certified for a decade before
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the objectors moved for decertification and that their failure to
appeal the district court's denial of that motion "doom[ed] their
attempt to raise the class certification issue before us." Id.Our refusal to engage with the Voss objectors' class-
certification arguments rested primarily on their packaging of
those arguments in the district court as a motion for
decertification, the denial of which they failed to appeal. See
id.6 So viewed, the Voss decision reflects a conventional
application of the longstanding rule that the court of appeals
lacks jurisdiction over claims lying outside "a properly targeted
notice of appeal or the functional equivalent thereof." Kotler v.
Am. Tobacco Co., 981 F.2d 7, 12 (1st Cir. 1992). Here, in contrast,
the Objectors offered their adequacy-of-representation objection
to the district court in the same guise as it comes to us now and
— crucially — timely appealed the district court's adverse order.
In sum, we cannot fault the Objectors for challenging
the settlement on a ground expressly contemplated by Rule 23 and
then timely appealing the district court's rejection of that
challenge. We hold, therefore, that the Objectors were not obliged
to channel their class-representation grievances into a motion for
Indeed, the district court approved the Voss settlement
6
months before ruling on the objectors' motion to decertify the
class, and its opinion approving the settlement did not address
the adequacy of representation. See Rolland v. Patrick, 562 F.
Supp. 2d 176 (D. Mass. 2008); Rolland v. Patrick, No. 98-30208,
2008 WL 4104488 (D. Mass. Aug. 19, 2008).
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decertification or modification of the class. See, e.g., In re
Cendant Corp. Litig., 264 F.3d 201, 230-31, 243, 252-53 (3d Cir.
2001).
B. Adequacy of Representation.
Having smoothed out the procedural wrinkles, we press on
to the gravamen of the Objectors' claim of error. The Objectors
first contend that the named class representatives no longer
adequately represent the class. Before grappling with this
contention, we summarize the applicable law.
Whether "the class representatives and class counsel
have adequately represented the class" is the first factor that
courts must consider in evaluating a proposed class-action
settlement. Fed. R. Civ. P. 23(e)(2)(A). Because this factor
overlaps with other requirements imposed by Rule 23, see 4 William
B. Rubenstein, Newberg on Class Actions (Newberg) § 13:49 (5th ed.
2021 Suppl.), we look to case law glossing the stipulation that
"the representative parties will fairly and adequately protect the
interests of the class," Fed. R. Civ. P. 23(a)(4).
"The adequacy inquiry under Rule 23(a)(4) serves to
uncover conflicts of interest between named parties and the class
they seek to represent." Amchem Prods., Inc. v. Windsor, 521 U.S.
591, 625 (1997). Such conflicts undermine the indispensable
"structural assurance of fair and adequate representation for the
diverse groups and individuals affected" by the class-action
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litigation or settlement. Id. at 627. This concern has
constitutional underpinnings because "the Due Process
Clause . . . requires that the named plaintiff at all times
adequately represent the interests of the absent class members."
Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985).
The standard, though, is not "perfect symmetry of
interest" among the class. Matamoros v. Starbucks Corp., 699 F.3d
129, 138 (1st Cir. 2012). The perfect is sometimes the enemy of
the good, and intra-class conflicts breach Rule 23(a)(4)'s
adequacy-of-representation standard only when they "are
fundamental to the suit and . . . go to the heart of the
litigation." Id. (quoting 1 Newberg § 3:58 (5th ed. 2011)).
In this instance, the Objectors start by complaining
that the district court committed "legal error" in "fail[ing] to
conduct any analysis at all" regarding the adequacy of
representation by the class representatives. They assert that
Rule 23(e)(2) required the court to make "specific findings as to
the adequacy of the Class Representatives" before approving the
settlement. This assertion reads more into Rule 23(e)(2) than its
text can bear.
Rule 23(e)(2) instructs the district court to
"consider[]" the adequacy of representation by the class
representatives. It does not direct the court to make specific
findings as to adequacy of representation. Although specific
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findings are always helpful, they are not obligatory. Here,
moreover, there is no basis for assuming that the district court
failed to consider this factor, particularly in view of the
district court's explicit acknowledgment of the Objectors' protest
that "the class representatives are not valid." Surveying the
record as a whole, we are satisfied that the district court
considered this factor and implicitly found no reason to question
the adequacy of representation by the class representatives. Cf.
Paraflon Invs., Ltd. v. Fullbridge, Inc., 960 F.3d 17, 29-30 (1st
Cir. 2020) (accepting district court's "implicit finding[s]"
following bench trial).
This brings us to the heart of the Objectors' argument:
that the named representatives could not and did not adequately
represent the class of current and future students because the
named representatives — who were members of the class when they
were appointed — graduated from Brown in the distant past. In the
Objectors' view, the "class representatives are no longer members
of the class" and "don't have skin in the game." Therefore, the
Objectors insist, the class representatives' interests are not
"aligned" with those of the class.
Whether the class representatives are disqualified
solely by dint of the mootness of their claims is a legal question
that we review de novo. See Bezdek, 809 F.3d at 82. To the extent
that the Objectors urge us down a path toward a per se rule that
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alumnae cannot adequately represent a class of current and future
students, the Supreme Court's decision in Sosna v. Iowa obstructs
that path. 419 U.S. 393 (1975). Challenging the constitutionality
of an Iowa law requiring one year of residency in the state to
petition for divorce, Carol Sosna represented a class of under-
one-year Iowa residents seeking to end their marriages. See id.
at 395-97. But by the time her case reached the Supreme Court,
her multi-year Iowa residency was established and, in any event,
she had managed to get divorced in New York. See id. at 398-99.
Notwithstanding that Sosna's own claim was moot, the Court held
that the class action was not moot because "the class of unnamed
persons described in the certification acquired a legal status
separate from the interest asserted by" the named class
representative (Sosna), and the controversy remained "very much
alive for the class of persons she ha[d] been certified to
represent." Id. at 399-401.
The Sosna Court clarified that, wholly apart from
mootness, an obligation remained under Rule 23(a)(4) to ensure
"that the named representative will adequately protect the
interests of the class." Id. at 403. The Court proceeded to hold
that Sosna was still an adequate representative both because it
was "unlikely" that her interests would conflict with those of the
class and because she had performed her representational duties
"competently." Id. The decision in Sosna makes it plain that —
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at least sometimes — a plaintiff whose own claims are moot may
adequately represent a class. See U.S. Parole Comm'n v. Geraghty,
445 U.S. 388, 405 (1980) ("In Sosna v. Iowa it was recognized that
a named plaintiff whose claim on the merits expires after class
certification may still adequately represent the class."). There
is no per se rule.
Several of our sister circuits have concluded that class
members whose claims are no longer live may adequately represent
the class on a going-forward basis.7 See, e.g., J.D. v. Azar, 925
F.3d 1291, 1313 (D.C. Cir. 2019) (per curiam) ("Mootness
alone . . . does not establish [the named plaintiffs'] inadequacy
as representatives."); Binta B. ex rel. S.A. v. Gordon, 710 F.3d
608, 619 (6th Cir. 2013) (explaining that class representative
with moot claim is adequate "at least until such time that there
is a determination that the representative is no longer adequate");
Reed v. Bowen, 849 F.2d 1307, 1312 (10th Cir. 1988) (holding that
district court "determine[s] whether mooted named plaintiffs will
Two courts of appeals look with more jaundiced eyes upon
7
class representatives whose own claims have become moot. See Irvin
v. Harris, 944 F.3d 63, 71 (2d Cir. 2019) (holding that class of
inmates at correctional institution was not adequately represented
by named plaintiffs who were "no longer . . . inmates and have not
continued to pursue the litigation"); Culver v. City of Milwaukee,
277 F.3d 908, 912 (7th Cir. 2002) (stating that class
representatives whose own claims have been rendered moot are
"presumptively inadequate"). These cases are distinguishable on
their facts: in each of them, the named plaintiffs — unlike in
this case — had failed to pursue class claims diligently. See
Irvin, 944 F.3d at 71; Culver, 277 F.3d at 912.
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remain adequate class representatives"); Harris v. Peabody, 611
F.2d 543, 544 (5th Cir. 1980) (per curiam) ("Whether [plaintiff
with moot claims] may continue to represent a class depends upon
the facts of the given case."); Ahrens v. Thomas, 570 F.2d 286,
288-89 (8th Cir. 1978) (holding that plaintiff, no longer a
pretrial detainee, adequately represented class of "all present
and future pretrial detainees" at jail).
We think that this is the proper frame of reference: an
inquiring court should not invoke any presumption against allowing
a plaintiff whose own claim has become moot to continue in place
as a class representative but, rather, should consider the
adequacy-of-representation issue on the facts of the particular
case. That inquiry proceeds along the lines suggested by Sosna:
we must ask whether the representatives' interests meaningfully
conflict with those of the class and whether the representatives
are competent champions of the cause. See Sosna, 419 U.S. at 403;
see also 1 Newberg § 3:54 (5th ed. 2011) (discussing these "two
component inquiries" and suggesting that "the first is by far the
more important").8
Just as we reject a per se rule against individuals with
8
moot claims representing a class, we reject the Objectors' related
argument that the class representatives are barred from that role
because they are no longer members of the class. The same was
said of the former Mrs. Sosna, see Sosna, 419 U.S. at 417 (White,
J., dissenting), but the Supreme Court gave this argument short
shrift. The Court saw no problem with the former Mrs. Sosna — by
then, a divorcée and two-year Iowa resident — adequately
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With this framework in place, we now probe the adequacy
of representation on the facts at hand and review that aspect of
the district court's ruling for abuse of discretion. See
Matamoros, 699 F.2d at 138. On this score, the Objectors first
argue that representation by the designated class representatives
was inadequate because those representatives did not participate
in negotiating the Amended Settlement Agreement. Even assuming
that such participation is necessary — a matter on which we take
no view — class counsel told the district court, in advance of the
fairness hearing, that the "representatives . . . were fully
informed about, and provided input into, the prosecution and
proposed settlement of the case." Nothing in the record
contradicts this statement, and the Objectors did not dispute it
below. The district court was, therefore, free to credit class
counsel's statement. The Objectors' lack-of-participation claim
fails.
More broadly, the Objectors argue that the named class
representatives were incapable of adequately representing the
representing the class of discontented spouses with "less than one
year" of Iowa residency "who desire" a divorce. Id. at 397, 403
(majority opinion). The Objectors do not dispute that the named
representatives were "member[s] of the class . . . at the time the
class action [was] certified." Id. at 403. Given that membership,
we need not decide whether they formally remain part of the class
today. Under Sosna, these representatives — as long as they are
competent champions of the class's cause and their interests do
not conflict with those of the class members — may continue to
represent the class.
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class because none of them were currently participating (or
eligible to participate, for that matter) in Brown's athletic
programs. As the Objectors put it, none of the class
representatives had "skin in the game."
In one sense, this argument is merely a variation on an
already discredited theme. The bald fact that the class
representatives' own claims have been rendered moot by the passage
of time does not render them unfit to represent the class. Rather,
the determination as to their adequacy remains fact-specific and
context-specific. Here, there is every reason to believe that the
named class representatives are competent champions of the class's
cause. They were the ones who first turned a spotlight on Brown's
insensitivity to gender equality in structuring its athletic
programs; they have been combatants in this war ever since; they
participated in bringing about an armistice in the form of the
Joint Agreement; and they have been protagonists in the latest
round of hostilities. Finally, no one — not even the Objectors —
has suggested that the class representatives have been
lackadaisical in the performance of their duties.
It may not be an exaggeration to say that, typically,
named representatives play only a "nominal" role because class
actions are "in fact entirely managed by class counsel." Phillips
v. Asset Acceptance, LLC, 736 F.3d 1076, 1080 (7th Cir. 2013)
(Posner, J.). But even a nominal plaintiff may add experience and
- 23 -
continuity to the class-representation equation. For example,
several of the named plaintiffs here testified before a
congressional subcommittee in 1993 and, last year, wrote an open
letter to Brown in the local paper.9 A class is well-served by
representatives who are conscious of the case's history and their
adversary's past behavior, and who can tell the class's story with
a panoramic arc. The district court was entitled to give weight
to these values in deeming these representatives adequate.
The Objectors have not shown that the interests of the
named class representatives actually conflict with the interests
of members of the class. But the Objectors pose a separate
problem: they contend that any representation of the class must
be inadequate due to conflicting interests among current students
on different teams. This contention draws its essence from the
proposition that adequate representation is impossible in cases in
which, "[i]n significant respects, the interests of those within
the single class are not aligned." Amchem, 521 U.S. at 626.
Building on this foundation, the Objectors suggest that "the class
members whose sports were eliminated clearly would possess an
9 See Intercollegiate Sports (Part 2): Hearings Before the
Subcomm. on Com., Consumer Protec. & Competitiveness of the H.
Comm. on Energy & Com., 103d Cong. 9-20 (1994); Amy Cohen & Karen
Hurley, Title IX at Brown: A Missed Opportunity for True
Excellence, Providence J. (Sept. 25, 2020, 2:24
PM), https://www.providencejournal.com/story/case/p2020/09/25/
opinioncohen-and-hurley-title-ix-at-brown-missed-opportunity-
for-true-excellence/114138498/.
- 24 -
incentive to give up rights and benefits secured by the Joint
Agreement in order to gain reinstatement of their sport," whereas
other student-athletes (such as the Objectors, who are gymnasts
and hockey players whose varsity teams were spared by Brown) would
have an incentivize "to retain th[e] Agreement as-is." This
misalignment, the Objectors say, constitutes an irredeemable
conflict.
In the arena of Title IX athletics litigation, courts
have taken divergent views on the issue of intra-class conflicts
among collegiate sports teams. Several courts, sparked by the
Second Circuit's decision in Boucher v. Syracuse University, 164
F.3d 113 (2d Cir. 1999), have required subclassing to isolate the
conflict arising from the recognition that a school's Title IX
"compliance might well be achieved by the elevation of one sport
and not the other." Id. at 116-17, 119; see Robb v. Lock Haven
Univ. of Penn., No. 17-00964, 2019 WL 2005636, at *12-13 (M.D. Pa.
May 7, 2019); S.G. ex rel. Gordon v. Jordan Sch. Dist., No. 17-
00677, 2018 WL 4899098, at *2 (D. Utah Oct. 9, 2018); Miller v.
Univ. of Cincinnati, 241 F.R.D. 285, 290 (S.D. Ohio 2006). Other
courts, though, have not envisioned this potential conflict among
different sports teams as necessarily disrupting the unity of the
class (particularly where the conflict is speculative). See A.B.
ex rel. C.B. v. Haw. State Dep’t of Educ., 334 F.R.D. 600, 611 (D.
Haw. 2019); Portz v. St. Cloud State Univ., 297 F. Supp. 3d 929,
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946-47 (D. Minn. 2018); Foltz v. Del. State Univ., 269 F.R.D. 419,
423-24 (D. Del. 2010).
In approaching this question, we do not write on an
entirely pristine page. Previous opinions in this case (both from
this court and from the district court) have proceeded on the
implicit understanding that subclassing is not essential. This is
the first time, however, that any party has suggested dividing the
class into subclasses, and we regard the issue as open in this
circuit.
The determinative factor, of course, is whether the
conflict among members of Brown's various women's sports teams is
"so substantial as to overbalance the common interests of the class
members as a whole."10 Matamoros, 699 F.3d at 138. Seeking to
clear this hurdle, the Objectors note that women students who were
members of any of the five varsity teams downgraded by Brown in
2020 found themselves in a more problematic situation than those
who were members of teams that were spared. On this basis, their
objection may be framed as analogous to the problem in Amchem.
The Amchem Court held that a single class was improper because the
10Consistent with the Objectors' argument, we consider only
the purported intra-class conflict among current students. We do
not address the possible use of subclassing as a means of
separating current students from future students. Inasmuch as the
Objectors have not pursued any such argument on appeal, we deem it
waived. See Wills v. Brown Univ., 184 F.3d 20, 27 (1st Cir. 1999);
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
- 26 -
interest of the "currently injured" plaintiffs (that is, those
already suffering from asbestos-related disease) sharply
conflicted with that of the "exposure-only plaintiffs" (that is,
those who were not yet symptomatic) who wanted to "ensur[e] an
ample, inflation-protected fund for the future." Amchem, 521 U.S.
at 626. The proposed analogy is that the women students on the
five downgraded teams wanted immediate reinstatement, while their
peers may have been more inclined to bargain for longer-term
concessions.
On further examination, though, the proposed analogy
collapses. The single class certified in Amchem included both a
group focused on "current payouts" and a group focused on "distant
recoveries." Id. at 610-11. That duality created an unacceptable
risk that one group would trade away the other group's most
cherished benefit. See id.; see also Samuel Issacharoff & Richard
Nagareda, Class Settlements Under Attack, 156 U. Pa. L. Rev. 1649,
1680 (2008) ("The intraclass conflict in Amchem
mattered . . . because . . . any realistic peace would turn on the
making of tradeoffs across critical dividing lines within the
proposed plaintiff class.").
The lesson of Amchem is that intra-class conflict is
unacceptable when it presents an actual and substantial risk of
skewing available relief in favor of some subset of class members.
See In re Payment Card Interchange Fee & Merch. Disc. Antitrust
- 27 -
Litig., 827 F.3d 223, 232-33 (2d Cir. 2016); In re Motor Vehicles
Canadian Export Antitrust Litig., 269 F.R.D. 80, 91 (D. Me. 2010).
No such risk is apparent here. The record simply does not suggest
any reason to believe that the class representatives' negotiations
were apt to be skewed in favor of reinstating certain teams by
jettisoning others. Consequently, there is no reason to regard
the interests of members of the various teams as so antagonistic
as to demand subclassing.
In point of fact, the opposite is true. The interests
of all women athletes presently at Brown are in large part aligned.
Under the Joint Agreement, every varsity team, regardless of
gender, played at Brown's pleasure, knowing that "Title IX does
not require institutions to fund any particular number or type of
athletic opportunities." Cohen II, 991 F.2d at 906; see Cohen IV,
101 F.3d at 187-88 (explaining that "[o]ur respect for academic
freedom . . . counsels that we give universities as much freedom
as possible"). When Brown pulled the plug on certain teams in
2020, women students on the unaffected teams may have breathed a
sigh of relief. At the same time, however, they must have been
keenly aware that nothing prevented Brown from pulling the plug on
their teams as well. This precarity was accentuated by Brown's
abrupt flip-flop with respect to the men's track, field, and cross
country teams. Under the terms of the Joint Agreement, Brown
giveth and Brown taketh away.
- 28 -
It follows inexorably, as night follows day, that a
significant interest common to all student-athletes was the
imposition of some meaningful limit on Brown's discretion to strip
teams of varsity status. Although this interest may have been
less important to students on teams already downgraded, even those
students' teams could be elevated in due course. They would then
benefit from negotiated safeguards. Adequacy of representation is
not hollowed out where, as here, the interests are generally shared
by the members of the class, albeit "differently weighted." Gooch
v. Life Invs. Ins. Co. of Am., 672 F.3d 402, 429 (6th Cir. 2012);
see J.D., 925 F.3d at 1314 ("[T]he presence of uninterested
individuals in a class does not compel a finding of inadequacy.").
We find, therefore, that the specter of intra-class conflict raised
by the Objectors is purely speculative and that no intra-class
conflict between sports teams placed the adequacy of
representation out of bounds.11
That ends this aspect of the matter. We conclude that
the district court considered the quality of the representation
11 This conclusion is also confirmed by the terms of the
Amended Settlement Agreement, which — as discussed infra — do not
evince prejudice toward particular teams. Cf. In re Payment Card,
827 F.3d at 236 ("Like the Supreme Court in Amchem, we 'examine a
settlement's substance for evidence of prejudice to the interests
of a subset of plaintiffs' when 'assessing the adequacy of
representation.'" (quoting In re Literary Works in Elec. Databases
Copyright Litig., 654 F.3d 242, 252 (2d Cir. 2011))).
- 29 -
afforded by the class representatives and supportably found that
representation to be adequate.
C. The Substance of the Amended Settlement.
This brings us to the Objectors' second claim of error.
The Objectors decry the substance of the settlement as not "fair,
reasonable, and adequate." Fed. R. Civ. P. 23(e)(2).
At the fairness hearing, the district court acknowledged
the parties' extensive discovery, spanning "tens of thousands of
pages of documents," "six depositions," and "five separate expert
reports." The Objectors conceded that "discovery in this
particular case was amazing." The district court then commented
favorably on the "effective and successful arm's length
negotiation" facilitated by the magistrate judge.
When — as in this case — "the parties negotiated at arm's
length and conducted sufficient discovery, the district court must
presume the settlement is reasonable." In re Pharm. Indus. Average
Wholesale Price Litig., 588 F.3d 24, 32-33 (1st Cir. 2009); see
Robinson, 14 F.4th at 59. A party seeking to overcome such a
presumption faces a steep uphill climb. The Objectors cannot scale
those heights.
After balancing the pluses and minuses of the proposed
settlement as against other possible outcomes (including the
uncertain consequences of a trial), see Nat'l Ass'n of Chain Drug
Stores, 582 F.3d at 44, the district court determined that the
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Objectors had failed to rebut the presumption of reasonableness.
The court went on to determine that the Amended Settlement
Agreement was not only reasonable but also fair and adequate.
The Objectors' assault on these findings is easily
repulsed. Their chief complaint is that the Amended Settlement
Agreement will expire in August of 2024, and this end date
"forfeits" the protections of the Joint Agreement without
commensurate gains for the class. In their view, the class
received very little in exchange for its acquiescence to a 2024
expiration date.
The Objectors' plaint comprises more cry than wool. The
Amended Settlement Agreement conferred demonstrable benefits. For
instance, the class received immediate reinstatement of the
women's equestrian and fencing teams. It also received Brown's
commitment not to downgrade any other women's varsity teams to
club status for the life of the Amended Settlement Agreement. That
is hardly nothing, especially in light of Brown's colorable
assertions that its shuffling of its athletic programs through the
Initiative was in full compliance with the Joint Agreement.
We add, moreover, that the passage of time had eroded
the advantages conferred on the class by the Joint Agreement.
Specifically, the principal benefit of the Joint Agreement —
Brown's willingness to abide by a 2.25% permissible variance in
women's athletic opportunities — has arguably been overtaken by
- 31 -
developing Title IX case law. Although a 2.25% variance almost
certainly would have passed legal muster in 1998, such a result is
less certain today. See, e.g., Portz v. St. Cloud State Univ.,
401 F. Supp. 3d 834, 845, 863 (D. Minn. 2019) (finding Title IX
violation for years in which women's athletic participation varied
2.5% and 2.9%, respectively, from women's enrollment); Biediger v.
Quinnipiac Univ., 728 F. Supp. 2d 62, 111-13 (D. Conn. 2010),
aff'd, 691 F.3d 85 (2d Cir. 2012) (concluding that Title IX was
violated when 3.62% variance in women's athletic participation was
considered along with other factors). Thus, eliminating the 2.25%
benchmark may open Brown up to a more exacting Title IX regime.12
Although we leave the underlying question unresolved, we think
that the district court was entitled to weigh these evolutionary
changes in support of the proposed settlement.
There is more. The Objectors' premise is that the Joint
Agreement should be viewed as immortal and that, therefore, the
class representatives acted foolishly by purchasing a burial plot.
This premise, though, is dead on arrival. There was never any
realistic prospect that the Joint Agreement would last forever.
12 Another part of the Joint Settlement Agreement also has
become obsolete. The Joint Agreement's prohibition on retaliation
is now superfluous following the Supreme Court's decision in
Jackson v. Birmingham Board of Education, 544 U.S. 167, 178 (2005)
(holding that "Title IX's private right of action encompasses suits
for retaliation"). So, too, the Joint Agreement's reporting
requirements are essentially mirrored by the federal mandates in
34 C.F.R. § 668.47.
- 32 -
It has for some time been accepted that, "[i]n
institutional reform litigation, injunctions should not operate
inviolate in perpetuity." In re Pearson, 990 F.2d 653, 658 (1st
Cir. 1993). Thus, the district court's "ongoing supervisory
responsibility" over the Joint Agreement "carrie[d] with it a
certain correlative discretion." Id. In Justice Cardozo's words,
"[a] continuing decree of injunction directed to events to come is
subject always to adaptation as events may shape the need."13
United States v. Swift & Co., 286 U.S. 106, 114 (1932).
In this instance, the district court canvassed the
record and supportably concluded that Brown's current leadership
is "steadfastly committed to gender equity in athletics at
Brown . . . and to Title IX." Given this conclusion and the
evolution of Title IX, we think it reasonable to believe that the
Joint Agreement had served its core purpose. While there are
doubtless some costs to the class incident to the winding up of
the Joint Agreement — as an example, future plaintiffs would have
to institute new litigation instead of relying on what the
We understand that Brown is a private institution and, as
13
such, the "sensitive federalism concerns" and problems of
political accountability that haunt public institutional reform
litigation are absent here. Horne v. Flores, 557 U.S. 433, 448-
49 (2009). But even private consent decrees — when they are long-
running — must be reconciled with "changes in the nature of the
underlying problem, changes in governing law or its interpretation
by the courts, and new policy insights" that may "warrant
reexamination of the original judgment." Id. at 447-48.
- 33 -
Objectors call the "streamlined" procedures that have been in place
— the district court was in the best position to weigh these costs
against the benefits of the Amended Settlement Agreement. Viewed
in this light, a 2024 expiration date was not inappropriate. There
was no abuse of discretion.
In a final gambit, the Objectors argue that the Amended
Settlement Agreement does not "treat[] class members equitably
relative to each other." Fed. R. Civ. P. 23(e)(2)(D). As evidence
of unfair disparity, they point out that only the women's fencing
and equestrian teams were reinstated to varsity status by the
Amended Settlement Agreement and that women students who
matriculate after 2024 (who, after all, are class members) will
not benefit at all from the settlement.
The district court did not abuse its discretion in
rejecting these arguments. As we already have explained, all of
Brown's women's athletes will benefit from the settlement until
2024. And even though only two women's varsity teams were
reinstated, the record makes pellucid that Brown — not the class
representatives or class counsel — chose those two teams. There
is simply no indication that either the class representatives or
class counsel "have sold out some of the class members at the
expense of others." 4 Newberg § 13:56 (5th ed. 2021 Suppl.).
Nor is the settlement inequitable because the class's
future members — those women students who will matriculate after
- 34 -
2024 — will not enjoy the protections of the Joint Agreement. That
argument merely reprises the mistaken notion that the original
consent decree must live forever. Because the passage of time
works against the Joint Agreement's viability, future students are
in this respect not similarly situated to current students. It
was fair for the district court to take that difference into
account. See Fed. R. Civ. P. 23(e)(2)(D) advisory committee's
note to 2018 amendments (explaining that equitable treatment may
take "appropriate account of differences among [class members']
claims"). On this record, the district court acted within the
encincture of its discretion in finding that a 2024 end date
furnishes insufficient cause for disallowing the settlement.
This conclusion is bolstered by the special context
presented here. Twice in this litigation, we addressed the gnawing
"tension" between class-wide Title IX remedies and the "great
leeway" our society affords to universities. Cohen II, 991 F.2d
at 906-07; see Cohen IV, 101 F.3d at 187-88 (noting "[o]ur respect
for academic freedom and reluctance to interject ourselves into
the conduct of university affairs"). The statutory anti-
discrimination mandate sometimes compels the court to usurp a
university's curricular planning. But that should be the
exception, not the rule.
We add a coda. Although we uphold the district court's
determination that the Amended Settlement Agreement is fair,
- 35 -
reasonable, and adequate, we do not pretend that it is perfect.
But "there are unlikely to be ideal solutions to all the vexing
problems that might potentially arise" in Title IX class-action
litigation involving collegiate programs. Cohen II, 991 F.2d at
907. The settlement reached here, though not perfect, marks a
fitting conclusion to decades of judicial intrusion upon Brown's
home field.
III. CONCLUSION
We need go no further. Ensuring gender equality in
collegiate athletic programs is serious business. Over nearly
three decades, Brown and the class representatives have made
considerable strides in this direction, and the need for judicial
supervision has diminished. The district court fairly concluded
that the finish line is in sight. For the reasons elucidated
above, the judgment of the district court is
Affirmed.
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