Sally Randall v. Rolls-Royce Corpor ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3446
S ALLY A. R ANDALL and R ONA C. P EPMEIER,
individually and on behalf of all others
similarly situated,
Plaintiffs-Appellants,
and
K AREN G OVERNOR and B ARBARA JONES,
Proposed Intervening Plaintiffs/Appellants,
v.
R OLLS-R OYCE C ORPORATION, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-860-SEB-WGH— Sarah Evans Barker, Judge.
A RGUED F EBRUARY 16, 2011—D ECIDED M ARCH 30, 2011
Before P OSNER, FLAUM, and SYKES, Circuit Judges.
P OSNER, Circuit Judge. The plaintiffs in this class action
suit on behalf of more than 500 female employees of a
2 No. 10-3446
Rolls-Royce plant in Indiana that manufactures aircraft,
industrial, and marine engines appeal from the denial of
class certification and the subsequent grant of Rolls-
Royce’s motion for summary judgment. (We refer to the
defendants, all of which are affiliated corporations, collec-
tively as “Rolls-Royce.”) The plaintiffs charge Rolls-Royce
with sex discrimination, in violation of Title VII and the
Equal Pay Act, in paying the members of the class less than
comparable male employees by setting the base pay of
women employees in the class members’ compensation
categories below that of male employees in the same
categories, and in denying them promotions they would
have received had they been men. There are other claims,
which we’ll not discuss, instead relying on the district
judge’s cogent analysis of them in three opinions: 2010
WL 987484 (N.D. Ind. Mar. 12, 2010); 2010 WL 1948222(N.D. Ind. May 13, 2010); 742 F. Supp. 2d 974 (N.D.
Ind. 2010).
To appeal a district court’s denial of class certification, as
the plaintiffs are doing in this case, is a risky strategy,
especially when, as in this case, the class is proposed to be
certified under Rule 23(b)(2) of the civil rules. Under that
rule, which governs class actions in which “final injunctive
relief or corresponding declaratory relief is appropriate
respecting the class as a whole,” notice to unnamed class
members is optional. Rule 23(c)(2)(A). The consequence
is that if the denial of certification is reversed but the
decision on the merits, adverse to the class, is affirmed, the
claims of the unnamed members, as of the named mem-
bers, will be barred unless (see Cooper v. Federal Reserve
Bank, 467 U.S. 867, 878-80 (1984)) their claims are
dissimilar to those of the named plaintiffs. Bolin v. Sears,
No. 10-3446 3
Roebuck & Co., 231 F.3d 970, 975-76 (5th Cir. 2000); Baby
Neal ex rel. Kanter v. Casey, 43 F.3d 48, 58-59 (3d Cir. 1994);
Greene v. Los Angeles Unified School Dist., 246 F.3d 674 (9th
Cir. 2000) (unpublished). Even an unnamed class member
who has a much stronger claim than the named plaintiffs
may be hurt by certification, because a subsequent court
may assume that certification would have been denied had
the named plaintiff’s claims not been typical of those of all,
or at least the vast majority, of the unnamed class mem-
bers. In contrast, when the class is certified under Rule
23(b)(3), which governs class actions in which monetary
relief is the primary relief sought, the unnamed class
members must be notified and allowed to opt out of the
class action, Rule 23(c)(2)(B); Eisen v. Carlisle & Jacquelin,
417 U.S. 156, 176 (1974), which gives them a chance to
litigate their claims in a new suit. Yet those who do not
opt out will be bound by the judgment in the class action.
Nagel v. ADM Investor Services, Inc., 217 F.3d 436, 442
(7th Cir. 2000); Amati v. City of Woodstock, 176 F.3d 952,
957 (7th Cir. 1999).
Conversely, a defendant confident of prevailing on the
merits will often be well advised not to oppose certifica-
tion, though there is some risk in doing so (so perhaps we
should say a defendant utterly confident of winning on the
merits would be well advised not to oppose certification).
Rolls-Royce is confident of prevailing on the merits, and
rightly so as we’ll see, but follows the lawyer’s reflexive
strategy of denying whatever the opponent asserts.
Certification and merits cannot always be separated. For
example, certification may be denied because the named
plaintiff’s claim is atypical of the claims of the other
4 No. 10-3446
members of the class, and it may be atypical because of a
possibly complete defense to his claim that may not apply
to claims of the other class members, as in CE Design
Limited v. King Architectural Metals, Inc., No. 10-1850, 2011
WL 938900, at *4-6 (7th Cir. Mar. 18, 2011). And then
the only effect if the denial of certification is upheld may
be the substitution, in a new class action suit, of another
class member for the named plaintiff in the old suit, and
in that event the defendant’s victory will be Pyrrhic;
substitution is an issue in this case, as we’ll see.
But a plaintiff’s victory in overturning the denial of
certification may be equally Pyrrhic if he prevails only
by occluding significant differences between his claim
and that of other class members by insisting on its typ-
icality, thus making it more difficult for unnamed class
members to convince a court that their own claims are
stronger than his (implying that his is atypical) and so
should not be barred by a judgment against him.
We’ll discuss the merits and then certification.
Rolls-Royce determines the compensation of its employ-
ees (all its employees, but this case concerns just those
exempt from the minimum-wage and maximum-hours
provisions of the Fair Labor Standards Act) in two steps.
The first is to establish a broad pay range for each class
of employees whom it deems of equal value to the com-
pany. We’ll call these broad ranges “compensation catego-
ries.” The class is spread over five of these categories.
The second step, which is based on Rolls-Royce’s recog-
nition that it must meet competition from other em-
ployers for the employees it wants to hire or retain, is to
No. 10-3446 5
create within each broad range a narrower range based on
prevailing market wages for each of the jobs in ques-
tion—“prevailing market wages” meaning wages offered
by competing employers. Because of these ranges within
ranges, the class that the plaintiffs want certified sprawls
over twenty different compensation grades, including
supervisory and nonsupervisory positions and encom-
passing starting salaries ranging from $40,050 to $190,750.
Thus, while in theory the jobs within each compensation
category are of equal value to the company (we imagine
that Rolls-Royce’s motive for saying this—thereby unwit-
tingly arming its adversaries in this case—is to improve
employee morale by reassuring each employee that he
or she is as good as others in the same compensation
category even if paid less than they), the jobs are not
equally valued by the market. Recognizing that it there-
fore must pay some employees in each category more
than others, Rolls-Royce specifies different levels of base
pay for different jobs within a category and (further
complicating comparison across jobs) authorizes super-
visors to make ad hoc pay adjustments; notably, each
employee is eligible to obtain a percentage of his base
pay as additional compensation, the percentage being
based on an evaluation of the employee’s performance
by his superior.
In 2003, the year before the beginning of the complaint
period, the average base pay (that is, the base pay before
the performance add-on just noted) of male employees in
the twenty compensation grades was about 5 percent
higher than that of the women in those grades. That
differential persisted throughout the complaint period.
6 No. 10-3446
And because the performance adjustments were calculated
as percentages of base pay, base pay influenced total pay
throughout the period, though other adjustments may
have diluted that influence or for that matter eliminated
it. Of course if the women outperformed the men, they
might catch up and even exceed them in pay, just by
virtue of the performance adjustment. Yet they would
exceed them by less than if their base pay had been
equal to the men’s at the outset. Suppose that in year one
W’s pay (after performance adjustment) is $90,000, and so
this becomes her base pay in year two. M’s pay is $100,000
in year one. In year two W receives a 20-percent perfor-
mance bonus and M only a 5-percent bonus. As a result
W’s pay now exceeds M’s—it is $108,000 to his $105,000.
But if W’s base pay in year two had been equal to M’s, her
second-year pay would have been $120,000, and so she
was hurt by having started from a lower base—the dif-
ference in year-one base pay being attributable, according
to the plaintiffs, to sex discrimination.
If the difference was attributable to sex discrimination,
Rolls-Royce’s failure to eliminate the difference would, by
perpetuating discrimination, violate Title VII. Bazemore
v. Friday, 478 U.S. 385, 394-96 (1986) (concurring opin-
ion—joined, however, by all the Justices); Hildebrandt
v. Illinois Dep’t of Natural Resources, 347 F.3d 1014, 1025-
29 (7th Cir. 2003); Goodwin v. General Motors Corp., 275
F.3d 1005, 1009-10 (10th Cir. 2002). It is true that the prima
facie case for a violation of the Equal Pay Act, which the
plaintiffs also allege, does not require proof of discrimina-
tion, but only of unequal pay for “equal work on jobs
the performance of which requires equal skill, effort, and
No. 10-3446 7
responsibility, and which are performed under similar
working conditions.” 29 U.S.C. § 206(d)(1); see Fallon
v. Illinois, 882 F.2d 1206, 1213-14 (7th Cir. 1989). But the
plaintiffs have been unable to identify any male worker
who satisfied the stringent statutory requirement of
equality of job skills, etc., and so the district judge was
right to grant summary judgment for Rolls-Royce on the
Equal Pay Act claim.
Rolls-Royce’s expert, Bernard R. Siskin, shot down the
plaintiff’s theory of discrimination in base pay under Title
VII by showing that once differences in the jobs performed
by male and female employees in each compensation
category are corrected for, the sex-correlated difference in
base pay disappears. Adjusting base pay in response to
market competition (which is different from other adjust-
ments, such as those based on favorable evaluation of an
employee’s performance) takes place within a range that
allows for considerable variance. The range is between 25
percent below and 25 percent above the median market
wage for the jobs in the category. Remember that jobs
are placed in the same compensation category because
they are deemed by Rolls-Royce to be of equal value to
the company, but since it cannot pay less (and will not
pay more) than the market wage for a particular job,
the base pay for the category is a range that permits
differentiation because the market wage for a category of
different jobs is also a range. A personnel officer might be
as valuable to Rolls-Royce as an aeronautical engineer, but
if the latter commands a higher wage in the market for
aeronautical engineers, Rolls-Royce will have to pay him
or her more; and if, as Siskin found, there were at the
8 No. 10-3446
outset of the complaint period more male than female
employees in jobs that command a higher market wage, the
average compensation of male employees would exceed
that of female employees in the same job category for a
reason unrelated to sex discrimination. If cardiologists
command a higher market wage than internists, they will
be paid more even if the clinic that employs both types
of physician regards them as equally valuable. Maybe
workers in different jobs that are in some sense of com-
parable value, though the market thinks otherwise, should
be paid the same as a moral matter; but “comparable
worth” is not recognized as a theory on which to base
a federal discrimination suit. E.g., Lang v. Kohl’s Food
Stores, Inc., 217 F.3d 919, 923 (7th Cir. 2000); American
Nurses’ Ass’n v. Illinois, 783 F.2d 716, 719-20 (7th Cir. 1986);
Mikula v. Allegheny County, 583 F.3d 181, 183, 185 (3d
Cir. 2009) (per curiam); United Auto Workers v. Michigan,
886 F.2d 766, 768-69 (6th Cir. 1989). Anyway it is not
urged by the plaintiffs in this case.
In concluding that the base-pay difference was attribut-
able to discrimination, the plaintiffs’ expert, Richard
Drogin, made errors besides failing to adjust for differences
in the jobs occupied by male and female employees.
We’ll mention only one of these errors: he included in the
comparison employees hired after the beginning of the
complaint period. That made no sense without an
inquiry, which he did not attempt, into the reasons for
the different starting salaries of male and female hires.
Remember that the claim is that Rolls-Royce discriminated
against women by failing to erase a disparity in base
pay that existed at the outset of the complaint period; for
No. 10-3446 9
all we know it did erase it, and the reason for the apparent
persistence of the disparity is that new female hires
were, for reasons unknown but not contended to be dis-
criminatory, paid less than new male hires.
Having failed to rebut Siskin’s key finding, either with
Drogin’s defective report or anything else, the plaintiffs’
complaint about base-pay discrimination fails. We add
(it bears on the issue of class certification, discussed below)
that in several of the years in question the named plaintiffs’
base pay exceeded, with only a few exceptions, that of the
male employees in the plaintiffs’ compensation grades
who the plaintiffs claimed were comparable to them.
The named plaintiffs are more concerned with promo-
tions they failed to get than they are with the largely
nonexistent (for them at least) base-pay differentials.
Yet Siskin’s study found that women in the class mem-
bers’ five compensation categories are promoted on
average more rapidly than men. Furthermore, while
many promotions in a firm or other institution are more
or less routine and even automatic, this is not true at the
level of our plaintiffs, both of whom are in the highest
of the five compensation categories, earning well over
$100,000. Rolls-Royce has relatively few employees in this
rarefied stratum and their work is not fungible. They
do different jobs involving different skills and experience.
The fact that some of the male employees who the plain-
tiffs contend were promoted ahead of them are, like them,
called “Director of Operations” has no significance; the title
covers a multitude of positions differing in authority (such
as number of employees supervised) and responsibility.
10 No. 10-3446
In beginning to speak of facts peculiar to the two named
plaintiffs, we are veering from merits issues to the certifica-
tion issue. Because the district judge denied class certifica-
tion, thus extruding the unnamed class members from the
case, her grant of summary judgment spelled dismissal
on the merits only of the named plaintiffs’ claims. Both
their pay claims and their promotion claims may well be
weaker than those of class members in lower compensa-
tion grades than theirs. If we reverse the denial of class
certification, we would, as explained earlier, jeopardize
the ability of unnamed class members to obtain relief in
individual suits or in a subsequent class action.
Fortunately for the class, the plaintiffs’ challenge to the
denial of class certification fails. Their claims are, as we just
noted, significantly weaker than those of some (perhaps
many) other class members; and as explained in CE Design
Limited v. King Architectural Merits, Inc., supra, 2011
WL 938900, at *4-6, named plaintiffs who are subject to
a defense that would not defeat unnamed class members
are not adequate class representatives, and adequacy of
representation is one of the requirements for class certifica-
tion. Fed. R. Civ. P. 23(a)(4); Amchem Products, Inc. v.
Windsor, 521 U.S. 591, 625-27 (1997). The district judge said
that the plaintiffs’ claims were not “typical of the claims
or defenses of the class,” also a requirement (Rule
23(a)(3)), though the usual practical significance of lack
of typicality, as again explained in CE Design, is that it
undermines the adequacy of the named plaintiff as a
representative of the entire class.
The adequacy of the plaintiffs’ representation is further
undermined by the existence of a conflict of interest,
No. 10-3446 11
beyond that implicit in their having weaker claims than
some of the unnamed class members, between them and
unnamed class members. Amchem Products, Inc. v. Windsor,
supra, 521 U.S. at 625; Gilpin v. American Federation of State,
County & Municipal Employees, 875 F.2d 1310, 1313 (7th Cir.
1989); Hines v. Widnall, 334 F.3d 1253, 1258 (11th Cir. 2003)
(per curiam). The plaintiffs have authority within the
company with regard to the compensation of some, and
maybe many, of the unnamed class members and, as
worrisome, over male employees in the same job categories
as the class members. Although we doubt that the plaintiffs
would deliberately depress the salary of female employees
whom they supervise, or increase the salary of male
employees whom they supervise, in order to create evi-
dence of discrimination, the possibility of such strategic
conduct (which might be unconscious) creates a conflict of
interest between the plaintiffs and unnamed members of
the class, (as well as with Rolls-Royce, if the plaintiffs
raised the salaries of male employees in the class members’
compensation categories in order to create evidence of sex
discrimination). A class representative’s conflict of interest
is an independent ground for denial of class certification.
Wagner v. Taylor, 836 F.2d 578, 595-96 (D.C. Cir. 1987);
Wells v. Ramsay, Scarlett & Co., 506 F.2d 436, 437-38 (5th
Cir. 1975). There is even evidence that the plaintiffs par-
ticipated in decisions concerning female employees’
compensation that, on their theory of the case, were
discriminatory.
The plaintiffs made two attempts in the district court to
avoid a finding that they are inadequate class representa-
tives. The first was to cast this as an injunction class action
suit, which is to say a class action suit governed by Rule
12 No. 10-3446
23(b)(2). It is true that Rule 23(b) (captioned “Types of
Class Actions”) is explicit that the requirements set forth
in Rule 23(a) (captioned “Prerequisites [to Class Actions”]),
such as the requirement that a named plaintiff be an
adequate class representative, apply to all types of class
action, including therefore class action suits seeking
injunctive relief. But depending on the precise terms of the
relief sought, an injunction suit might avoid adequacy
issues that a class action suit for damages, which would be
governed by Rule 23(b)(3), would present. It’s easier for a
named plaintiff to prove he’s an adequate class representa-
tive in an injunctive action because usually there is
less variance in injunctive relief sought for members of the
class than in damages sought—imagine if the plaintiffs in
this case were just seeking an injunction commanding base-
pay equalization between male and female employees.
But that’s not what they’re seeking, exclusively or even
mainly; and indeed this isn’t a proper Rule 23(b)(2) suit.
Class action lawyers like to sue under that provision
because it is less demanding, in a variety of ways, than
Rule 23(b)(3) suits, which usually are the only available
alternative. Mark A. Perry & Rachel S. Brass, “Rule
23(b)(2) Certification of Employment Class Actions:
A Return to First Principles,” 65 N.Y.U. Annual Survey of
Am. Law 681, 689-92 (2010); Roger H. Trangsrud,
“The Adversary System and Modern Class Action Prac-
tice,” 76 Geo. Wash. L. Rev. 181, 186-87 (2008). Of particular
significance, “plaintiffs may attempt to shoehorn damages
actions into the Rule 23(b)(2) framework, depriving class
members of notice and opt-out protections. The incentives
to do so are large. Plaintiffs’ counsel effectively gathers
No. 10-3446 13
clients—often thousands of clients—by a certification
under (b)(2). Defendants attempting to purchase res
judicata may prefer certification under (b)(2) over (b)(3).”
Bolin v. Sears, Roebuck & Co., supra, 231 F.3d at 976. How far
Rule 23(b)(2) can be stretched is the issue in the gigantic
class action against Wal-Mart, Dukes v. Wal-Mart Stores,
Inc., 603 F.3d 571, 619 (9th Cir.) (en banc), cert. granted, 131
S. Ct. 795 (2010), now before the Supreme Court. The
present case is not as big a stretch, but it is big enough.
True, the only monetary relief sought is back pay; true,
too—contrary to the common but erroneous notion that
courts of equity can’t award monetary relief—they can do
so if the award is merely incidental to the grant of an
injunction or declaratory relief: “incidental” in the sense
of requiring only a mechanical computation. That is
the “clean-up” doctrine of equity. Reich v. Continental
Casualty Co., 33 F.3d 754, 756 (7th Cir. 1994); Medtronic, Inc.
v. Intermedics, Inc., 725 F.2d 440, 442-43 (7th Cir.
1984); Mowbray v. Moseley, Hallgarten, Estabrook &
Weeden, Inc., 795 F.2d 1111, 1113-14 (1st Cir. 1986). In such
a case, to make the class representative bring a second suit,
for damages, on top of his injunctive action would
create pointless redundancy. In re Allstate Ins. Co., 400 F.3d
505, 507 (7th Cir. 2005); see also Lemon v. International Union
of Operating Engineers, 216 F.3d 577, 580-81 (7th Cir.
2000), and cases cited there.
The plaintiffs argue that if only equitable relief is sought,
a class action suit may be maintained under Rule 23(b)(2)
even if the equitable relief is mainly monetary. We dis-
agree. See Thorn v. Jefferson-Pilot Life Ins. Co., 445 F.3d 311,
14 No. 10-3446
331-32 (4th Cir. 2006). To read “injunctive” in the rule to
mean “equitable” is to become mired in sticky questions of
differentiating between “legal” and “equitable” ac-
tions—and such questions abound. See, e.g., Medtronic, Inc.
v. Intermedics, Inc., supra. We can avoid the mire by recog-
nizing that Rule 23(b)(2) class actions are limited to cases
in which “final injunctive relief or corresponding declara-
tory relief” is appropriate, rather than extending to all
cases in which any kind of equitable relief is sought.
Hohider v. United Parcel Service, Inc., 574 F.3d 169, 202 (3d
Cir. 2009). The monetary relief sought in a case, whether
denominated legal or equitable, may make the case unsuit-
able for Rule 23(b)(2) treatment. Kartman v. State Farm
Mutual Auto Ins. Co., 2011 WL 488879, at *9 (7th Cir. Feb. 14,
2011); In re Allstate Ins. Co., supra, 400 F.3d at 507-08; Reeb v.
Ohio Dep’t of Rehabilitation & Correction, 435 F.3d 639,
651 (6th Cir. 2006). As this case illustrates: calculating the
amount of back pay to which the members of the class
would be entitled if the plaintiffs prevailed would require
500 separate hearings. The monetary tail would be wag-
ging the injunction dog. An injunction thus “would not
provide ‘final’ relief as required by Rule 23(b)(2). An
injunction is not a final remedy if it would merely lay an
evidentiary foundation for subsequent determinations of
liability.” Kartman v. State Farm Mutual Auto Ins. Co., supra,
2011 WL 488879, at *8.
It would not be enough, for example, to award all
members of the class 5 percent of their earnings during the
complaint period, to erase the allegedly discriminatory
differential in pay between male and women employees;
for if the women’s salaries had been 5 percent higher from
No. 10-3446 15
the outset, they might have received lower performance or
other pay raises above their base pay. Remember that
compensation is influenced by the labor market: women
underpayed because of the base-pay differential would be
more likely to receive a compensatory pay adjustment than
if their base pay had been higher.
The claim of discrimination in promotions presents a
further complication. Because Rolls-Royce does not have
a fixed compensation schedule for employees in the
compensation categories at issue, individualized hearings
would be required to determine how much higher an
employee’s pay would have been had she received a
promotion denied her on the ground of her sex.
The proper approach in this case would thus have been
for the plaintiffs to seek class certification under Rule
23(b)(3)—which requires full notice so that class members
can opt out if they want to bring an independent suit for
damages or other monetary relief—but to ask for injunctive
as well as monetary relief. In re Allstate Ins. Co., supra,
400 F.3d at 508; see Laura J. Hines, “Challenging the Issue
Class Action End-Run,” 52 Emory L.J. 709, 716-17, 741-
43 (2003). It is only when the primary relief sought
is injunctive, with monetary relief if sought at all mech-
anically computable, that elaborate notice is not required
and so Rule 23(b)(2) is applicable because the claims of
the class members are uniform (or as the cases sometimes
say, “cohesive”). Jefferson v. Ingersoll Int’l, Inc., 195 F.3d 894,
897-99 (7th Cir. 1999); Thorn v. Jefferson-Pilot Life Ins.
Co., supra, 445 F.3d at 331-32; Coleman v. General Motors
Acceptance Corp., 296 F.3d 443, 447-48 (6th Cir. 2002);
16 No. 10-3446
Murray v. Auslander, 244 F.3d 807, 812-13 (11th Cir. 2001);
Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th Cir.
1998).
The plaintiffs’ other attempted end run around the
district judge’s denial of certification is to ask us to
reverse her denial of their motion to substitute two
other class members for the original named plaintiffs—
substitutes who might have a more typical (and, not
incidentally, a stronger) claim than the original plaintiffs.
Such substitution (via permissive intervention by an
unnamed plaintiff, who if intervention is allowed becomes
the named plaintiff and thus the class representative) is
possible. See Fed. R. Civ. P. 23(d)(1)(B)(iii), 24(b); Champ v.
Siegel Trading Co., 55 F.3d 269, 272-74 (7th Cir. 1995);
Birmingham Steel Corp. v. TVA, 353 F.3d 1331, 1339 (11th
Cir. 2003); McKowan Lowe & Co. v. Jasmine, Ltd., 295 F.3d
380, 383, 389 (3d Cir. 2002). But it’s not automatic, and the
district judge was on sound ground in ruling that the
motion, filed on March 26, 2010, came too late. See Fed. R.
Civ. P. 24(b)(3) (“in exercising its discretion [in deciding
whether to permit intervention], the court must consider
whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights”).
The motion was not filed until after the judge had denied
class certification—and that was almost four years after
the suit had begun and long after it was plain that there
were substantial doubts about the typicality of the
named plaintiffs’ claims and the adequacy of their repre-
sentation of the class. As the district judge explained,
“until [the plaintiffs] secured the assistance of additional,
No. 10-3446 17
more experienced counsel, this case progressed at an
almost imperceptible pace, with Plaintiffs seeking and
receiving numerous extensions of the deadlines for filing
their class certification motion, to the point that the Court
finally had to admonish counsel regarding their duty of
diligence and to voice our concerns over the apparent
limited resources being devoted to the case.” 2010 WL
987484, at *13. Things sped up for a time when the plain-
tiffs retained a firm “with apparently much needed class
action expertise and additional resources”—but the firm
soon withdrew, citing irreconcilable differences with the
plaintiffs’ original lawyers. Id. The judge remarked that
“local counsel has been in the ‘driver’s seat’ throughout the
case, and has set, at best, a plodding pace.” 2010 WL
1948222, at *3.
It would go too far to suggest that unless substitution for
the original named plaintiffs is sought as soon as a sub-
stantial challenge to certification is made, the district
judge is justified in denying it. Such a rule might involve
constant interruptions of the proceeding—procedural hic-
cups—as nervous class action counsel tried to add new
class representatives every time the defendants raised an
objection to certification. But it was obvious from the
outset that these named plaintiffs faced a serious chal-
lenge to their status as class representatives. And
with the entire class in one location (a single plant in
Indiana), class counsel had ample opportunity to sift
through potential named plaintiffs before deciding on
Randall and Pepmeier. Intervention shouldn’t be al-
lowed just to give class action lawyers multiple bites at
the certification apple, when they have chosen, as should
18 No. 10-3446
have been obvious from the start, patently inappropriate
candidates to be the class representatives. Griffin v.
Singletary, 17 F.3d 356, 359-60 (11th Cir. 1994); see also
Sanford v. MemberWorks, Inc., 625 F.3d 550, 560-61 (9th Cir.
2010). The judge was justified in denying the motion
to intervene.
A FFIRMED.
3-30-11