Theresa Riffey v. Bruce Rauner , 873 F.3d 558 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-3487
THERESA RIFFEY, et al.,
Plaintiffs-Appellants,
v.
BRUCE V. RAUNER, in his official capacity as Governor of the
State of Illinois, and SEIU HEALTHCARE ILLINOIS & INDIANA,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 C 02477 — Manish S. Shah, Judge.
____________________
ARGUED MAY 17, 2017 — DECIDED OCTOBER 11, 2017
____________________
Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. Class and collective actions are de-
signed to provide an efficient vehicle to resolve the claims of
a large number of plaintiffs in one fell swoop. They can offer
benefits to both sides in a case: plaintiffs are able to aggregate
resources in order to litigate small claims, and defendants can
achieve a global resolution of the dispute. But class actions are
2 No. 16-3487
not always the best vehicle for delivering relief. This is why
Federal Rule of Civil Procedure 23 establishes a number of
criteria that parties (usually plaintiffs) must meet in order to
maintain a class action, and why district courts have consid-
erable discretion in determining whether and how to manage
such actions.
The appellants in this case are home health care assistants
who wanted the district court to certify a class of their fellow
assistants for purposes of securing a class-wide refund of the
fair-share fees they paid to a union for collective bargaining
representation. For a number of reasons, the district court
found that the class should not be certified. It awarded injunc-
tive relief in favor of the plaintiffs, as well as individual dam-
ages, and this appeal followed. Because we find no abuse of
discretion in the court’s refusal to certify the class, we affirm.
I
The State of Illinois, through its Department of Human
Services Home Services Program, pays personal home health
care assistants to deliver care to elderly and disabled persons
in the state. Under Illinois law, the assistants are considered
public employees for purposes of collective bargaining. See
Illinois Public Labor Relations Act (IPLRA), 20 ILCS 2405/3(f).
The same law authorizes the state to engage in collective bar-
gaining with an exclusive representative of home care and
health workers. See id. Since 2003, SEIU Healthcare Illinois &
Indiana (the “Union”) has been the exclusive representative.
The exclusive representative is required to represent all public
employees, whether or not they are members of the Union.
Under the terms of its collective bargaining agreement with
the state, the Union was entitled to collect limited fees from
workers who chose not to join the Union in order to help cover
No. 16-3487 3
the cost of certain activities, principally the collective bargain-
ing representation it furnished to everyone. These fees were
known as “fair-share fees,” and until recently they were auto-
matically deducted from the pay of assistants who were not
Union members.
Some workers objected to this fair-share arrangement. In
April 2010, they filed this suit, in which they contend that the
involuntary deduction and collection of the fair-share fees vi-
olates their First Amendment rights and entitles them to relief
pursuant to 42 U.S.C. § 1983. For convenience, we refer to
them as the Objectors. The district court dismissed their claim
and we affirmed, see Harris v. Quinn, 656 F.3d 692 (7th Cir.
2011) (detailing the plaintiffs’ First Amendment claims). But
the Supreme Court agreed with the Objectors and reversed in
Harris v. Quinn, 134 S. Ct. 2618 (2014). In accordance with the
Court’s decision in Harris, we remanded the case to the district
court for further proceedings.
Once back in the district court, the Objectors amended
their complaint to substitute new named plaintiffs for their
proposed class and to reflect the fact that the Governor of Illi-
nois is now Bruce V. Rauner. They then sought certification of
a class of all non-union member assistants from whom fair-
share fees were collected from April 2008 until June 30, 2014
(the date of the Supreme Court’s Harris decision), when the
state stopped the fair-share deductions. The Objectors con-
tend that their proposed class, which numbers around 80,000
members, is entitled to a refund of the total of the fair-share
fees paid by its members—approximately $32 million.
The Union opposed the motion for class certification; the
Governor took no position on the class issue and is not partic-
4 No. 16-3487
ipating in this appeal. The district court decided that class cer-
tification was inappropriate for several reasons: the class def-
inition was overly broad in light of evidence (detailed by the
court) that a substantial number of class members did not ob-
ject to the fee and could not have suffered an injury; the
named plaintiffs were not adequate representatives; individ-
ual questions regarding damages predominated over com-
mon ones; the class faced serious manageability issues; and a
class action was not a superior method of resolving the issue.
The parties then stipulated to a judgment permanently enjoin-
ing the future collection of fair-share fees and awarding
money damages to the named plaintiffs. The district court en-
tered final judgment, and this appeal followed.
II
The Objectors have placed most of their reliance on appeal
on the argument that the district court’s refusal to certify
rested on an error of law: specifically, the proposition that de-
ducting the fair-share fees could have caused a First Amend-
ment injury to a worker only if she subjectively opposed the
Union or the fee at the time it was paid. We review the district
court’s denial of class certification for abuse of discretion.
Kleen Prod. LLC v. Int’l Paper Co., 831 F.3d 919, 922 (7th Cir.
2016). “A district court abuses its discretion when it commits
an error of law or makes a clearly erroneous finding of fact.”
Kress v. CCA of Tenn., LLC, 694 F.3d 890, 892 (7th Cir. 2012).
In order to have a case in a federal court, a plaintiff must
plead that she has been injured in a concrete and particular-
ized way by a defendant’s actions. Lujan v. Defenders of Wild-
life, 504 U.S. 555, 560 (1992). And in order to state a claim un-
der 42 U.S.C. § 1983, that injury must include a violation of
the plaintiff’s constitutional or statutory rights. The named
No. 16-3487 5
plaintiffs here alleged that collecting fair-share fees without
consent ran afoul of the First Amendment, and the Supreme
Court agreed with them. The named plaintiffs then settled
with the Union; the nature of their injuries is thus not before
us.
The proposed class, however, presents interesting aspects
of the nature of injury in First Amendment compelled subsi-
dization cases. Whereas we understand that the named plain-
tiffs objected to the collection of the fair-share fees and to col-
lective bargaining representation, we have no way of know-
ing whether or how many of the remaining class members
shared that opposition. Nothing in Harris said that people
could not voluntarily join a union, or voluntarily pay a fair-
share fee. Its focus was exclusively on compelled participa-
tion. See, e.g., 134 S. Ct. at 2644 (“The First Amendment pro-
hibits the collection of an agency fee from personal assistants
in the Rehabilitation Program who do not want to join or support
the union.”) (emphasis added). The district court highlighted
the Union’s evidence that many of the would-be class mem-
bers had submitted affidavits contending that they did not ob-
ject to the fair-share fees and would have consented if given
the chance (a step that was unnecessary during the pre-Harris
regime, when fair-share fees were automatically collected). It
concluded that there were likely a significant number of
workers in the proposed class whose First Amendment rights
had not been injured by the fee collection.
The Objectors urge that the question whether any given
worker in the proposed class was subjectively opposed to
paying the fees is extraneous to whether or not their First
Amendment rights were violated. They characterize the in-
jury as the denial of the choice to pay or not pay. In their view,
6 No. 16-3487
it is enough that the money was taken without their affirma-
tive consent and used for purposes of collective bargaining
representation.
But we cannot accept that characterization in the face of
direct evidence from the supposedly injured class members
that they did not feel injured at all, and that they would have
happily paid the fair-share fee without complaint. The prem-
ise of the Objectors’ argument—that these funds were taken
without consent—stands on shaky ground. They presume
that silence was equivalent to non-consent, while the Union
argues that silence against the backdrop of the earlier legal
regime in which there was no obligation to signify consent is
at worst uninformative, and if anything suggests consent.
We can assume that the taking of money without consent
or legal justification is enough to give rise to some kind of a
tort, but it is less clear that such a taking implicates the First
Amendment. Compelled subsidization can violate the
First Amendment because it impinges on First Amendment
rights. See Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S.
298, 321 (2012) (“[B]y allowing unions to collect any fees from
nonmembers … our cases have substantially impinged upon
the First Amendment rights of nonmembers. … [W]e see no
justification for any further impingement. The general rule—
individuals should not be compelled to subsidize private
groups or private speech—should prevail.”). Nonetheless, a
course of conduct or a rule that impinges upon the exercise of
a legal right does not always injure the people it affects,
certainly not if they consent or voluntarily accept the rule. In
the compelled speech context, for instance, although a
requirement to recite the Pledge of Allegiance every morning
might impermissibly impinge upon all students’ rights to
No. 16-3487 7
choose whether to do so, see W. Va. State Bd. of Educ. v.
Barnette, 319 U.S. 624 (1943), it seems fair to say that many of
them would happily have recited the Pledge anyway and thus
suffered no First Amendment injury from the rule. Or, to take
another example, most Granite Staters evidently had no
objection to the motto “Live Free or Die” on their license
plates, and so would not have had standing to object to it,
even though George Maynard found it repugnant to his
beliefs. See Wooley v. Maynard, 430 U.S. 705 (1977).
The Objectors urge that even if some measure of subjective
opposition is required to show a First Amendment injury, the
choice not to join the Union ought to be sufficient to demon-
strate that opposition and hence to show a First Amendment
injury. But a choice not to join the Union is not the relevant
one for our purposes. This case has always been about the de-
cision whether to support collective bargaining representa-
tion and pay the fair-share fee, and the personal assistants
were never asked to express a preference on that point. At
most, we know that the proposed class members did not be-
come full union members during the period when the fees
were collected. We have no way of knowing which of three
choices they might have made, had Harris been on the books
during the entire time: join the Union; voluntarily pay fair-
share fees; or pay nothing. The Objectors scoff at the idea that
anything but “pay nothing” would be selected, but the district
court had before it evidence that the majority of personal as-
sistants in 2003 voted for union representation, that a majority
ratified the collective bargaining agreement in 2008 and 2012,
and that 65% of the proposed class members who are still per-
sonal assistants have since joined the union. It was a reasona-
ble inference from those facts that a significant number of
8 No. 16-3487
class members would indeed have chosen the first or second
option, had they realized the need to do so.
The question whether it is permissible to take subjective
factors into account in a First Amendment case has interesting
implications in the class action context. In order to be ascer-
tainable, a class must be defined based on objective criteria.
Classes “defined by subjective criteria, such as by a person’s
state of mind, fail the objectivity requirement.” Mullins v. Di-
rect Digital, LLC, 795 F.3d 654, 659–60 (7th Cir. 2015) (citations
omitted). The result may be that class treatment is more diffi-
cult to secure in such a personal area as First Amendment
rights, once the principle prohibiting coerced speech is in
place.
We need not pursue this possibility further for present
purposes, because the district court offered additional, inde-
pendent, reasons for declining to certify the class. It found
that Rule 23’s requirements were not met because (1) the intra-
class conflicts of interest rendered the named plaintiffs inad-
equate as class representatives, and (2) common questions did
not predominate so as to make a class action superior to indi-
vidual actions.
Looking first at adequacy of representation, we recall that
this is one of the four essential criteria established by
Rule 23(a) for all class actions: numerosity, adequacy of rep-
resentation, commonality, and typicality. Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 349 (2011). The district court did not
abuse its discretion in finding that there are serious intra-class
conflicts of interest in the Objectors’ proposed class, and that
the proposed representatives cannot fairly and adequately
protect all prospective members. FED. R. CIV. P. 23(a)(4). “Be-
cause a class action is an exception to the usual rule that only
No. 16-3487 9
a named party before the court can have her claims adjudi-
cated, the class representative must be part of the class and
possess the same interest and suffer the same injury.” Bell v.
PNC Bank, Nat’l Ass'n, 800 F.3d 360, 373 (7th Cir. 2015). “A
class is not fairly and adequately represented if class members
have antagonistic or conflicting claims.” Retired Chicago Police
Ass'n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (quoting
Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992)).
We addressed intra-class conflicts of interest in a case in-
volving people who declined to join a union nearly two dec-
ades ago in Gilpin v. American Federation of State, Cnty., & Mun.
Employees, AFL-CIO, 875 F.2d 1310 (7th Cir. 1989). There we
affirmed a district court’s refusal to certify a class of 10,000
non-union members in a suit seeking restitution for fair-share
fees deducted following defective notice. We held that the
judge was right not to certify the class in that case because of
a potentially serious conflict of interest:
Two distinct types of employee will decline to join the
union representing their bargaining unit. The first is
the employee who is hostile to unions on political or
ideological grounds. The second is the employee who
is happy to be represented by a union but won’t pay
any more for that representation than he is forced to.
The two types have potentially divergent aims. The
first wants to weaken and if possible destroy the un-
ion; the second, a free rider, wants merely to shift as
much of the cost of representation as possible to other
workers, i.e., union members.
Id. at 1313. In so doing, we noted that seeking a restitution
remedy was suitable only for the type of plaintiff who is hos-
tile to the unions, and that the windfall of restitution might
10 No. 16-3487
embarrass or ruin the union—an outcome that the second
type of employees would not want. Id.In a more recent case, Schlaud v. Snyder, 785 F.3d 1119 (6th
Cir. 2015), our sister circuit affirmed a denial of class certifica-
tion in similar circumstances, where the plaintiffs challenged
fair-share fees and sought to certify a class and a subclass of
home childcare workers. The class included workers who
were members of the union or voted in favor of the collective
bargaining agreement, while the subclass included those who
did not have the chance to vote in the union election. Id. at
1125–28. The Sixth Circuit emphasized that the plaintiff rep-
resentatives would have a clear conflict of interest with class
members who were union members. Id. at 1127. Further, the
court noted that when given an opportunity to vote, a signif-
icant percentage voted in favor of union representation. Id. It
was therefore fair to presume that some members of the sub-
class would have wanted to be members of the union. The
Sixth Circuit held that it was not an abuse of discretion to find
that the named plaintiffs could not adequately represent the
proposed classes or subclasses, as both would have “in-
clude[d] members whose ‘probable preferences’ would have
been in conflict … .” Id. at 1128.
The situations in both Gilpin and Schlaud may not be iden-
tical to the one before us. But, as the district court rightly
noted, “in the end, both Schlaud and Gilpin point out that a
class representative who wants to undermine the union is not
likely to be a suitable representative for a group that includes
people who have no such hostility.” Riffey v. Rauner, No. 10
CV 02477, 2016 WL 3165725, at *7 (N.D. Ill. June 7, 2016). As
we noted earlier, the Union presented evidence showing that
No. 16-3487 11
65% of the potential class members who are still personal as-
sistants have since voted to join SEIU. It also submitted nu-
merous affidavits from would-be class members stating that
they supported the union and the fees. This evidence sup-
ports the district court’s finding of a serious intra-class conflict
of interest.
According to the Objectors, there is no conflict of interest,
and they are therefore adequate representatives because dif-
ferences in opinion about the Union have no bearing on the
merits of the claim. For this, they cite Eighth Circuit precedent
for the notion that “[t]he antagonism which will defeat the
maintenance of a class action must relate to the subject matter
in controversy, as when the representative’s claim conflicts
with the economic interests of the class … .” Reynolds v. Nat’l
Football League, 584 F.2d 280, 286 (8th Cir. 1978) (citation omit-
ted). But in Reynolds, the Eighth Circuit was examining the al-
leged conflict between active and retired football players. It
decided that the differences were insufficient to preclude
class treatment where “all class members were interested in
damages [but] only some were economically interested in fu-
ture player movement restrictions.” Id. Here, however, differ-
ences in opinion regarding the Union and its activities go to
the heart of both the question of consent to the fee collection
and to the motivation to seek monetary damages against the
Union.
To this concern, the Objectors propose what they see as a
simple solution: certify the class that they have proposed and
allow members with competing interests (i.e., those who
would have supported the Union willingly, or who have since
become full Union members) to opt out of the action. The
problem with this suggestion is that Rule 23(b)(3)’s opt-out
12 No. 16-3487
provisions may operate as a safety valve only for an otherwise
properly certified class. In other words, the opt-out proce-
dures are no substitute for adherence to Rule 23; a class must
meet Rule 23’s requirements before class members are allowed
to opt out of the action. The plaintiffs’ suggestion attempts to
foist the burden of fashioning an appropriate class on those
who would be required to opt-out. This we cannot allow. It is
worth noting, too, that the district court repeatedly invited the
Objectors to suggest a more tailored class, but they let that
opportunity pass. We therefore have no trouble finding that
the district court did not abuse its discretion in finding
that the proposed class representatives failed the adequacy
requirement of Rule 23(a)(4).
Even if the Objectors had not run into problems with ade-
quacy of representation under Rule 23(a), they would still not
clear the class certification hurdles. Because they seek to cer-
tify a class for monetary damages, they need to show that the
common questions predominate over questions affecting in-
dividual members, and that a class action is a superior
method to adjudicate the controversy. FED. R. CIV. P. 23(b)(3).
The predominance requirement is met when common ques-
tions represent a significant aspect of a case and can be re-
solved for all members of the class in a single adjudication.
Costello v. BeavEx, Inc., 810 F.3d 1045, 1059 (7th Cir. 2016). As
we said in Messner v. Northshore Univ. HealthSystem, 669 F.3d
802 (7th Cir. 2012):
If, to make a prima facie showing on a given question,
the members of a proposed class will need to present
evidence that varies from member to member, then it
No. 16-3487 13
is an individual question. If the same evidence will suf-
fice for each member to make a prima facie showing,
then it becomes a common question.
Id. at 815 (quoting Blades v. Monsanto Co., 400 F.3d 562, 566 (8th
Cir. 2005)). This does not mean that a hint of an individual
question—especially questions regarding damages—is fatal
to class treatment, but common questions must predominate.
Id. A district court should review the evidence pragmatically
in order to decide whether class-wide resolution “would sub-
stantially advance the case.” Suchanek v. Sturm Foods, Inc., 764
F.3d 750, 761 (7th Cir. 2014).
The district court reasoned that the main issue remain-
ing—compensatory damages—could not be resolved in a sin-
gle adjudication, and that the individual questions for the
over 80,000 potential class members would predominate over
other questions. It acknowledged that this might not be the
issue “if a class were certified solely to adjudicate the affirm-
ative defense of good faith before determining liability,” but
the Objectors did not request such a limited class nor did they
brief that possibility. Riffey, 2016 WL 3165725, at *8.
As the district court noted, the Supreme Court has re-
solved the overarching common issue in this case: whether
the First Amendment prohibits the fair-share fee deductions
in the absence of affirmative consent (yes). The issue that re-
mains—compensatory damages—requires a showing of ac-
tual injury caused by the constitutional deprivation. Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 309 (1986). In order
to recover damages for any monetary loss or emotional suf-
fering, each class member must have suffered a loss, and that
loss must have been caused by the Union’s violation of her
First Amendment rights.
14 No. 16-3487
We agree with the district court that the question whether
damages are owed for many, if not most, of the proposed class
members can be resolved only after a highly individualized
inquiry. It would require exploration of not only each person’s
support (or lack thereof) for the Union, but also to what extent
the non-supporters were actually injured. The Union would
be entitled to litigate individual defenses against each mem-
ber. This suggests not only that individual questions predom-
inate at this stage of the litigation, but also that it would be
difficult to manage the litigation as a class. The plaintiffs of-
fered no plan to make class-wide determinations about sup-
port for the collective bargaining representation. The district
court was well within the bounds of its discretion to reject
class treatment on these bases as well.
Our review of both the facts and the legal arguments the
Objectors have presented leaves us satisfied that the district
court’s decision not to certify their proposed class was a sound
one. We therefore AFFIRM the judgment.
No. 16-3487 15
MANION, Circuit Judge, concurring in the judgment. The
Supreme Court’s decisions in Knox v. Service Employees Inter-
national Union, Local 1000, 567 U.S. 298 (2012), and Harris v.
Quinn, 134 S. Ct. 2618 (2014), at the very least mean that public
employees who choose not to join a union can’t be required to
contribute to the union without their affirmative consent. The
district court concluded that since many of the home care pro-
viders supported the union and didn’t oppose the “fair-share”
fees, those providers did not accrue a compensable First
Amendment injury. The problem, however, is that the care
providers, now belatedly called the objectors, were not first
given the choice whether or not to pay the fee before the union
seized their money. Depriving non-members of the choice
whether to pay the fee in the first place is a major fault in the
union’s collection process. Each and every proposed class
member had fees seized without his or her consent. That is
enough to establish a compensable injury.
Nevertheless, I concur in the court’s judgment. The district
court’s mistakes led to its erroneous conclusions that the pro-
posed class failed to satisfy two of the four prerequisites for
certification under Rule 23(a). However, the district court also
concluded under Rule 23(b)(3) that: (1) issues common to
class members would not predominate over individual is-
sues; and (2) a class action would not be superior to individual
actions. These findings were probably not an abuse of discre-
tion. Therefore, I would affirm the denial of certification on
those grounds alone.
The district court first reasoned that because each pro-
posed class member would have to prove that he or she op-
posed the fair-share fees in order to recover, the proposed
class could not meet Rule 23(a)’s commonality requirement.
16 No. 16-3487
Riffey v. Rauner, No. 10-CV-02477, 2016 WL 3165725, at *6
(N.D. Ill. June 7, 2016). According to the court, an unwilling
non-union member is injured by the seizure of his or her
money only if the non-member subjectively didn’t want to
support the union. See id. at *3. So in the district court’s view,
the proposed class action really amounts to about 80,000 indi-
vidual cases wherein home care providers will have to prove
that they didn’t want their money transferred to the union.
That is not so.
The Supreme Court’s Knox decision should have settled
this question. There, two groups of employees filed a class-
action suit against SEIU, alleging that the union unconstitu-
tionally required them to contribute money to SEIU’s political
activism. Knox, 567 U.S. at 305–06. One group of employees
had objected to the forced contributions, but the second group
had not been given the opportunity to do so. Those in the lat-
ter group argued that they should have received a new op-
portunity to object after SEIU levied a new special assessment.
Id. The Supreme Court agreed, holding that there was no jus-
tification for forcing non-members to opt out of, rather than
opt into, the assessment. See id. at 312. Significantly, the Court
observed that “[a]n opt-out system creates a risk that the fees
paid by nonmembers will be used to further political and ide-
ological ends with which they do not agree.” Id. (emphasis
added). The same risk—that non-members may be forced to
support the union when they don’t wish to do so—is present
here as well.
As the Knox Court rhetorically asked, “isn’t it likely that
most employees who choose not to join the union that repre-
sents their bargaining unit prefer not to pay the full amount
of union dues?” Id. Of course, the answer is yes, both for the
No. 16-3487 17
plaintiffs in Knox and the home care providers in this case. It
is not controversial to say that most people would prefer not
to pay an assessment that isn’t required. And even if that
weren’t so obvious, “[c]ourts ‘do not presume acquiescence in
the loss of fundamental rights.’” Id. (quoting Coll. Sav. Bank v.
Fla. Prepaid Postsecondary Educ. Expense Bd., 526 U.S. 666, 682
(1999)). Harris held that the seizure of fair-share fees from ob-
jecting home care providers violates the First Amendment.
Thus, judges cannot assume that home care providers who
declined to join SEIU wanted to give up their right not to pay
the fair-share fees when those providers were not given an
opportunity to object. That is true even if many non-members
were not hostile to the union.
The court’s citations to compelled-speech cases like West
Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943),
and Wooley v. Maynard, 430 U.S. 705 (1977), are inapposite.
With respect to injury, these cases present a sort of catch-22.
Someone who is not bothered by the compelled speech at is-
sue (e.g., the Pledge of Allegiance in Barnette and “Live Free
or Die” on a license plate in Wooley) is very unlikely to sue.
The same is true in Establishment Clause cases, which “are
invariably mounted by people offended by the government’s
association with religion.” Doe ex rel. Doe v. Elmbrook Sch. Dist.,
687 F.3d 840, 876–77 (7th Cir. 2012) (en banc) (Posner, J., dis-
senting). In other words, anyone who challenges the govern-
ment’s actions in such cases by definition has an injury, other-
wise they wouldn’t have sued. But it doesn’t follow that those
who choose not to sue have not been harmed. As the court
acknowledges, “a requirement to recite the Pledge of Alle-
giance every morning might impermissibly impinge upon all
students’ rights to choose whether to do so….” Maj. Op. at 6–
18 No. 16-3487
7. I would add that those who choose not to sue are still com-
pelled to speak; they simply don’t care enough to seek re-
dress, either because they support the speech or it is not worth
their time to complain about it. That doesn’t mean that the
non-objectors don’t have a First Amendment injury, only that
they have chosen not to assert one. Their damages might be
nominal, but their First Amendment injury exists all the same.
Fortunately, we don’t have to deal with that problem in
this case because the proposed class members all have tangi-
ble monetary injuries. And as the Supreme Court explained,
those injuries derive from the exaction of “funds from non-
members without their affirmative consent.” Knox, 567 U.S. at
322. Each and every SEIU non-member had fees exacted with-
out his or her affirmative consent. Some might not care
enough to seek redress, but like the students required to recite
the Pledge, they have been compelled to speak nonetheless.
That is their injury. If (as the union contends) some of the pro-
posed class members really wanted to support SEIU, those in-
dividuals are free to not claim their refunds or to donate to
the union on their own. That is their prerogative. But after
Knox and Harris, public-sector unions can no longer seize
money from non-members without their consent. Therefore,
those who had funds unconstitutionally seized may recover
their money irrespective of their feelings towards the union.
Next, the district court concluded (and the court appar-
ently agrees) that the representative plaintiffs can’t ade-
quately represent the class as required by Rule 23(a)(4) be-
cause class members may have differing views about SEIU.
The district court reasoned that “a class representative who
wants to undermine the union is not likely to be a suitable
representative for a group that includes people who have no
No. 16-3487 19
such hostility.” Riffey, 2016 WL 3165725, at *7. That analysis is
too broad. A class member who wants to recover his money
doesn’t necessarily want to undermine the union. He may just
not want to pay for what the union labels “fair share,” but
what the employee thinks is a waste of money.
Moreover, the assumed disagreements between proposed
class members have nothing to do with the injury each suf-
fered and the compensation sought. Instead, as the Eighth
Circuit explained, “the antagonism which will defeat mainte-
nance of a class action must relate to the subject matter in con-
troversy.” Reynolds v. Nat’l Football League, 584 F.2d 280, 286
(8th Cir. 1978) (quoting Sperry Rand Corp. v. Larson, 554 F.2d
868, 874 (8th Cir. 1977)). Here, the matter in controversy is the
refund of seized fair-share fees. Even if some members of the
proposed class want to destroy SEIU while others don’t, each
class member has an identical interest in the return of his or
her money. That is to say, none of the representative plaintiffs’
claims “conflict[] with the economic interests of the class.” Id.And unlike in Gilpin v. American Federation of State, County, &
Municipal Employees, AFL-CIO, 875 F.2d 1310, 1313 (7th Cir.
1989), the putative class representatives seek only compensa-
tory damages, not punitive damages that might cause the un-
ion severe economic hardship. See Riffey, 2016 WL 3165725, at
*7. Differences in ideology among putative class members
shouldn’t doom an attempt to recover unconstitutionally
taken fees in which each member has an equal stake. Cf. Reyn-
olds, 584 F.2d at 874 (“the mere existence of political divisions
or factionalism within a union does not require class decerti-
fication” (quoting Sperry Rand Corp., 554 F.2d at 874)).
20 No. 16-3487
However, while I disagree with the district court’s conclu-
sions on the issues of commonality and adequacy of represen-
tation, I would still affirm its decision not to certify the class.
That is because the proposed class still must satisfy Rule
23(b)(3)’s requirement that “the questions of law or fact com-
mon to class members predominate over any questions affect-
ing only individual members, and that a class action is supe-
rior to other available methods for fairly and efficiently adju-
dicating the controversy.” Yet as the district court noted, now
that the “central First Amendment question” in this case was
resolved in Harris, “plaintiffs’ pursuit of class-wide refunds is
the most significant issue remaining in the case.” Riffey, 2016
WL 3165725, at *8. That’s a problem for the plaintiffs. Even
though the need for individualized damages calculations
won’t usually preclude certification, see Messner v. Northshore
Univ. Health Sys., 669 F.3d 802, 815 (7th Cir. 2012), in this case
damages are the main, if not the only, remaining issue. There-
fore, the district court likely did not abuse its discretion by
concluding that issues common to the class wouldn’t predom-
inate over individual issues.
On superiority, the district court was mostly correct that
“there is no longer any reason to concentrate each proposed
class member’s claim for damages into a single forum, be-
cause, armed with Harris, any individual who did not want to
join or support the union can pursue individual relief (with
the potential benefit of 42 U.S.C. § 1988 fee-shifting).” Riffey,
2016 WL 3165725, at *8 (citation omitted). 1 In other words, es-
pecially with prevailing-party attorneys’ fees available, it is
1 Of course, as I explained above, any non-member who had his or her
fees seized without affirmative consent can recover. Therefore, the class of
No. 16-3487 21
not at all obvious that a class action is superior to other avail-
able methods for adjudicating this controversy. The individ-
ual non-union members might prefer a class action, but they
have all the incentive in the world to pursue their individual
claims and should not have any trouble finding attorneys to
help them in a case where the merits have mostly been de-
cided and fees are recoverable. With that in mind, I would
hold that the district court didn’t abuse its discretion when it
concluded that a class action wouldn’t be superior in this case.
“The class action is ‘an exception to the usual rule that lit-
igation is conducted by and on behalf of the individual named
parties only.’” Comcast Corp. v. Behrend, 569 U.S. 27, 33 (2013)
(quoting Califano v. Yamasaki, 442 U.S. 682, 700–01 (1979)). So
while I am particularly troubled by the district court’s conclu-
sion that subjective support for the union would extinguish a
potential class member’s First Amendment injury, I nonethe-
less agree that we should affirm the denial of certification. Un-
der Rule 23(b)(3), the plaintiffs bear the burden of showing
that common issues would predominate over individual ones
and that a class action would be superior to individual ac-
tions. While the district court’s conclusions on these questions
are subject to debate, they do not amount to an abuse of dis-
cretion. Therefore, I concur only in the judgment.
people who may seek relief should not be limited to those “who did not
want to join or support the union.”