IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
_____________________________________

BARBARA GRUTTER

for herself and all others
similarly situated,

             Plaintiff,

      v.

LEE BOLLINGER, JEFFREY LEHMAN,
DENNIS SHEILDS, REGENTS OF THE
UNIVERSITY OF MICHIGAN, and
THE UNIVERSITY OF MICHIGAN
LAW SCHOOL

             Defendants.
_____________________________________

)
)
)
)     Civil Action # 97-75928
)     Hon. Bernard Friedman
)     Hon. Virginia Morgan
)
)     MEMORANDUM OF LAW IN
)     SUPPORT OF PLAINTIFF'S
)     MOTION FOR CLASS
)     CERTIFICATION AND FOR
)     BIFURCATION OF
)     LIABILITY AND
)     DAMAGES TRIALS
)
)     CLASS ACTION
)
)

INTRODUCTION

Plaintiff submits this memorandum of law in support of her motion, pursuant to Federal Rule of Civil Procedure 23, to certify this lawsuit as a class action. The proposed class is defined as all individuals who.
(1) applied for and were not granted admission to the University of Michigan Law (the "Law School") for the academic years from 1995 through the date that judgment is entered herein; and

(2) are members of those racial or ethnic groups, including Caucasian, that Defendants treat less favorably in considering their applications for admission to the Law School.

Plaintiff seeks to maintain this class pursuant to Federal Rule of Civil Procedure 23(b)(1) & (2) on the issues of whether defendants engaged in unlawful discrimination; whether they should be enjoined from engaging in such discrimination in the future; and on plaintiff's claim for punitive damages. Plaintiff also moves that, upon class certification, the Court order a bifurcation of trials of the liability and damages issues.

FACTUAL BACKGROUND

Plaintiff commenced this action against the Regents of the University of Michigan and others (hereinafter collectively referred to as "defendants") on grounds that defendants' policies and practices in granting admission to the University of Michigan Law School (hereinafter "Law School") are based on racial classifications that violate the United States Constitution and several Federal civil rights statutes. In filing the Complaint, plaintiff pled the elements of a class action under Federal Rule of Civil Procedure 23. Plaintiff now submits this memorandum in support of her motion for class certification pursuant to Rule 23.

In considering a motion for class certification, the court does not reach the merits. Instead, the determination whether class certification is appropriate should be made on the pleadings in light of the procedural requirements of Rule 23. See, e.g., Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178 (1974); see also, e.g., Weathers v. Peters Realty Corp., 499 F.2d 1197, 1201 (6th Cir. 1974); Little Caesar Enterprises, Inc. v. Smith, 172 F.R.D, 236, 241 (E.D. Mich. 1997) ("[i]n determining whether to certify a class, inquiry into the merits of plaintiff's claims is inappropriate"); Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1017 (W.D. Mich. 1987). The facts alleged in this case are plainly sufficient to support grant of plaintiff's motion for certification. Plaintiff Barbara Grutter is a white resident of the state of Michigan who in 1996 applied for admission into the fall 1997 first-year class of the Law School. Complaint at ¶4. After first being placed on a "wait-list," Plaintiff was denied admission by defendants' letter dated June 25, 1997. Complaint at ¶4. Plaintiff still desires to attend the Law School and to become a lawyer. Complaint at ¶4.

The Law School's application for admission requests that applicants disclose their race. Accordingly, plaintiff disclosed that she was "white." Complaint at ¶¶17-18. Defendants take an applicant's race into account when making admissions decisions. Complaint at ¶¶17-18; Defendants' answer at ¶19. Certain racial groups receive more favorable treatment than others in the admissions process. Complaint at ¶20. The result is that students from the favored racial groups have a significantly greater chance of admission than students with similar credentials from disfavored racial groups. Complaint at ¶20, Plaintiff Grutter, as a white applicant, was not a member of one of the favored racial groups. Complaint at ¶22; see also Answer at ¶22 ("Defendants admit that plaintiff is not a member of an underrepresented minority group and that her race was not a factor that enhanced the University of Michigan Law School's consideration of her application.")

As a result of defendant's use of racially discriminatory admissions procedures and practices, plaintiff was denied admission to the Law School. Complaint at ¶26. The unlawful grounds on which plaintiff was denied admission have caused her to sustain various damages, including humiliation, emotional distress, pain and suffering and economic damages. Complaint at ¶¶26-27. Plaintiff therefore seeks various types of relief, including a declaration that defendants have violated plaintiff's constitutional right to equal protection of the laws; an order enjoining defendants from continuing to discriminate on the basis of race in their admissions practices and procedures and an award of compensatory and punitive damages and reasonable attorneys' fees. Complaint at pp. 10-11.

ARGUMENT

I. THE PROPOSED CLASS SATISFIES THE REQUIREMENTS ESTABLISHED BY
FEDERAL RULE OF CIVIL PROCEDURE 23

A lawsuit may be certified as a class action if the proposed class meets all of the requirements of Rule 23(a) and fits within one of the subcategories of Rule 23(b). Senter v. General Motors Corp., 532 F.2d 511, 522 (6th Cir. 1976), cert. denied, 429 U.S. 870 (1976); Bromley v. Michigan Education Ass'n., 178 F.R.D. 148,161 (E.D. Mich. 1998). Class certification is appropriate in this case under any "rigorous analysis" of the Rule 23 requirements. Sprague v. General Motors Corp., 133 F.3d 388, 397 (6th Cir.), cert. denied, 118 S. Ct. 2312 (1998).

A. The Proposed Class Meets the Requirements of Rule 23(a)

Rule 23(a) contains four prerequisites that must be satisfied for a lawsuit to proceed as a class action:
One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members of the class is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

All four elements are met here, as discussed in detail below.

1. Numerosity

The numerosity requirement of Rule 23(a)(1) is met when plaintiffs demonstrate the "impracticality" of joinder; the rule does not require "impossibility." Little Caesar Enterprises, Inc. v. Smith, 172 F.R.D. 236, 242 (E.D. Mich. 1997); 1 H. NEWBERG & A. CONTE, NEWBERG ON CLASS ACTIONS, 3.03 (3rd ed. 1992) (hereinafter "NEWBERG"). Plaintiffs can satisfactorily demonstrate that the number of potential class members is too large for joinder even if plaintiffs do not know the exact number of class members. Senter v. General Motors Corporation, 532 F.2d 511, 523 n.24 (6th Cir. 1976); In re Consumers Power Co. Securities Litigation, 105 F.R.D. 583, 601 (E.D. Mich. 1985, see also 7A WRIGHT, MILLER & KANE, FEDERAL PRACTICE & PROCEDURE 1762 (2d ed. 1986) (hereinafter "WRIGHT & MILLER"). The class may include persons already harmed by the defendants' conduct, as well as persons who will be harmed in the future. See, e.g., Bromley v. Michigan Education Assn., 178 F.R.D. 148, 162 (E.D. Mich. 1998); Smith v. Babcock, 748 F. Supp. 501, 506 (E.D. Mich. 1990), vacated an other grounds, 951 F.2d 350 (6th Cir. 1991); Afro American Patrolmen's League v. Duck, 366 F. Supp. 1095, 1099 (N.D.Ohio 1973) ("the really important persons affected by this [class action] litigation" were future minority applicants), aff'd in relevant part, remanded on other grounds, 503 F.2d 294, 298 (6th Cir. 1974).

Defendants receive thousands of applications for admission each year and reject most of them because of the limited size of each year's class. See Defendants' Answer at ¶12 ("Defendants admit that the University of Michigan Law School receives thousands of applications for admission each year . . ."). Thus, the sheer number of past and future applicants subject to discrimination plainly makes joinder impracticable. 1 See, e.g., Bittinger V. Tecumseh Products Company, 123 F.3d 877, 884 n.1 (6th Cir. 1997) (rejecting as "frivolous" the contention that a class of 1,100 did not meet the numerosity requirement of the rules); Michigan State University Faculty Ass'n. v. Michigan State University, 93 F.R.D. 54, 56 n.1 (W.D.Mich 1981) (class of 319 members found sufficient) (when a class numbers in the hundreds or thousands, the impracticability of joinder is obvious"); International Union, United Automobile, Aerospace & Agricultural Implement Workers of American, UAW v. Acme Precision Products, Inc., 515 F. Supp. 537, 540 (E.D.Mich. 1981) (certifying class of only 78 members). Moreover, even if numerosity were an issue, the requirement is relaxed when plaintiffs, as here, seek injunctive or declaratory relief. See Smith v. Babcock, 748 F. Supp. 501, 505 (ED.Mich. 1990), vacated on other grounds, 951 F.2d 350 (6th Cir. 1991). Consequently, there cannot be any serious doubt that plaintiff's proposed class satisfies the numerosity requirement of Rule 23(a).

2. Commonality

The "commonality" requirement of Rule (23)(a) means only that there must be some question of law or fact common to the class. "The commonality test 'is, qualitative rather than quantitative, that is there need be only a single issue common to all members of the class.'" In re American Medical Systems, Inc. 75 F.3d 1069, 1090 (6th Cir. 1996) (quoting 1 NEWBERG 3.10); see also, e.g., Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp. 1009, 1015 (W.D.Mich. 1987). Sufficient commonality is shown where the allegations are that the party opposing the class engaged in some course of conduct that affects a group of persons and gives rise to a cause of action. Id. In this case, plaintiffs allegations demonstrate significant commonality of both facts and law. By its nature, "[r]ace discrimination is peculiarly class discrimination." Senter v General Motors Corporation, 532 F.2d 511, 524 (6th Cir. 1976); General Telephone Co. v. Falcon, 457 U.S. 147, 157 (1982) ("suits alleging racial or ethnic discrimination are often by their very nature class suits, involving class wide wrongs and that '[c]ommon questions of law or facts are typically present'") (quoting East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 405 (1977)). The Complaint here alleges a systematic use of race as a factor in the defendants' admissions policies and practices. This is not a case in which plaintiff alleges that the discriminatory practices applied to her alone; all members of the racial groups disfavored by defendants' policies suffer (and will suffer) injury. These common injuries in fact also have common legal remedies -- claims under 42 U.S.C. 1981, 1983, and 2000d et seq.

Defendants' allegation that they review applications based on many factors in addition to race (see Answer at ¶19) neither meets nor contradicts the allegation in the Complaint that plaintiff and others who receive disfavored consideration on account of their race have suffered a common harm. The Sixth Circuit addressed the issue in Senter v. General Motors Corporation, 532 F.2d 511, 524 (6th Cir. 1974), which involved claims of racial discrimination in employment in violation of Title VII.
. . . It is manifest that every decision to hire, fire or discharge an employee may involve individual considerations. Yet when that decision is made as part of class-wide discriminatory practices, courts bear a special responsibility to vindicate the policies of [Title VII] regardless of the position of the individual plaintiff . . . Factual identity between the plaintiff's claims and those of the class he seeks to represent is not necessary.

532 F.2d at 524 (affirming certification of class of minority employees); see also, e.g., Bittinger v. Tecumseh Products Company, 123 F.3d 877, 884-85 (6th Cir. 1997); Bremiller v. Cleveland Psychiatric Institute, 898 F. Supp. 572, 579 (N.D.Ohio 1995) ("to satisfy the commonality requirement, it is enough that 'discrimination had been practiced across the board'") (quoting Senter, 532 F.2d at 524); Little Caesar Enterprises, Inc. v. Smith, 172 F.R.D, 236, 242 (E.D.Mich. 1997) (Rule 23(a)(2) "requires only some common issues of law or fact, not the predominance of common issues required by Rule 23(b)(3)") (emphasis in original)).

Plaintiff's action, therefore, unquestionably satisfies the "commonality" requirement of Rule 23(a).

3. Typicality

The "typicality" requirement of Rule 23 (a) overlaps and merges with the "commonality" requirement. General Telephone Company v. Falcon, 457 U.S. 147, 157 n.13 (1982); Bittinger v. Tecumseh Products Company, 123 F.2d 877, 884-85 (6th Cir. 1997); Rodriquez v. Berrybrook Farms, Inc., 672 F. Supp, 1009, 1016 (W.D. Mich. 1987). Typicality exists where plaintiff's claims and those of other class members arise from the same event or course of conduct. See 1 NEWBERG 3.13, at 3-76. As discussed above regarding the element of "commonality," plaintiff's claims of unlawful discrimination arise from defendants' systematic use of race in making admissions decisions that adversely affect all applicants who are not members of the preferred racial groups. Accordingly, plaintiff's claims satisfy the typicality requirements of Rule 23(a).

4. Adequacy of Representation

The adequacy of representation requirement also tends to merge with the commonality and typicality requirements of Rule 23(a). Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2251 n. 20 (1997); In re American Medical Systems, 75 F.3d 1069,1083 (6th Cir. 1996); In re Mutual Savings Bank Securities Litigation, 166 F.R.D. 377 v 382 (E.D.Mich. 1996). The Sixth Circuit looks to two criteria for satisfaction of the "adequacy of representation" element: (1) the class representative must have common interests with the unnamed members of the class; and (2) it must appear that the representatives will vigorously prosecute the interests of the class through qualified counsel. See Gonzales v. Cassidy, 474 F.2d 67, 73 (5th Cir. 1973); Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976); Rodriguez v. Berrybrook Farms, Inc., 672 F. Supp, 1009, 10I7 (W.D. Mich. 1997).

Both criteria are clearly met in this case. As discussed regarding the elements of commonality and typicality, the plaintiff and the proposed class members confront the same racially discriminatory barriers that defendants employ in their admissions policies and practices. Plaintiff and the class members also share the common interest of obtaining a judicial declaration of the unlawfulness of defendants' policies and an order enjoining use of those policies in the future. In addition, plaintiff's counsel are experienced in civil rights and class action litigation. See Affidavit of Michael E. Rosman; affidavit of David F. Herr; Affidavit of Kirk O. Kolbo. Consequently, plaintiff and her counsel will represent the interests of the class adequately and vigorously.

B. The Proposed Class Fits Squarely Within Rule 23(b)(1) & (2)

When the prerequisites of Rule 23(a) are satisfied, an action may be maintained as a class action when it qualifies under any one of three conditions set forth in Rule 23(b). An action can qualify and be certified under more than one of the Rule 23(b) scenarios. See, e.g., Mertz v. Harris, 497 F. Supp. 1134, 1139 (S.D. Tex. 1980) (certifying class under Rules 23(b)(1) & (2)); Dale Electronics, Inc. v. R.C.L. Electronics, Inc., 53 F.R.D. 531, 536-37 (D.N.H. 1971) (class certified under Rules 23(b)(1) & (2)); l NEWBERG, 4.08. In this case, plaintiff seeks certification under both Rules 23(b)(1) & (2).

1. Plaintiff's Claims Qualify for an Injunctive and Declaratory Class
Under Rule 23(b)(2)

Rule 23(b)(2) permits class certification when "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole." Fed. R. Civ. P. 23(b)(2). These elements are met in the present case. As discussed above, plaintiff alleges that defendants discriminate in a categorical manner on the basis of racial identity, and plaintiff seeks both declaratory and injunctive relief from defendants' unlawful practices. The relief sought is far both past and future applicants.

"Lawsuits alleging class-wide discrimination are particularly well suited for 23(b)(2) treatment since the common claim is susceptible to a single proof and subject to a single injunctive remedy." Senter v. General Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976). Plaintiff's case therefore, presents a paradigm for certification under Rule 23(b)(2). See also Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231, 2245 (1997) ('[c]ivil rights cases against parties charged with unlawful, class-based discrimination are prime examples" of class actions permitted by 23(b)(2)); Smith v. University of Washington Law School, No. 97-335Z, 1998 WL 199286 (W.D. Wash. April 22, 1998) (granting motion for Rule 23(b)(2) class certification in action challenging racially discriminatory admissions policies of the University of Washington Law School); Fed. R. Civ. P. 23(b)(2) Advisory Committee's Notes (offering as an illustration of 23(b)(2) a civil rights case "where a party is charged with discriminating unlawfully against a class, usually one whose members are incapable of enumeration"); 1 NEWBERG 4.11 at 4-39.

2. Plaintiff's Claims Also Qualify for Class Certification under Rule 23(b)(1)

A class action may be certified under Rule 23(b)(1) if the "prosecution of separate actions by or against individual members of the class would create risk of" either:
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.

Federal Rule of Civil Procedure 23(b)(1). The scenarios described in paragraphs (1)(A) & (B) are really two sides of the same coin; paragraph (A) views the class determination from the perspective of the party opposing the class, while paragraph (B) approaches the issue from the side of the proposed class members. See 1 NEWBERG 4.03, at 4-11. The provision of (b)(1)(A) recognizes that defendants have an interest in avoidance of a multiplicity of actions by individuals that may result in inconsistent outcomes requiring incompatible standards of conduct for the defendants. Id. The language of (b)(1)(B), on the other hand, addresses the concern of members of the plaintiff class that litigation of the named plaintiff's cast may impair or impede the ability to protect the interests of the remaining members of the class. Cases, for example, where there is a limited fund from which a large class of plaintiffs seek to recover are frequently certified as a class action under Rule 23(b)(1)(B). See, e.g., In re Jackson Lockdown/MCO Cases, 107 F.R.D. 703, 711-12 (E.D. Mich. 1985); 1 NEWBERG, 4.09, at 4-31 ("most common use of (b)(1)(B) class actions is in limited fund cases").

In this case, the considerations of both (b)(1)(A) & (B) make a (b)(1) class certification appropriate. Plaintiff challenges racial classifications in defendant's admission policies and decisions that affect thousands of similarly situated applicants who receive disfavored treatment on account of their race. Any effective remedy of the constitutional and statutory civil rights violations compels a result whereby defendants case to make unlawful racial classifications as to all applicants to the Law School. See, e.g., Cullen v. New York State Civil Service Commission, 435 F. Supp. 546, 562 (E.D.N.Y. 1977) ("The alleged conduct is either legal, or it is illegal, as to all members of the class, and the defendants must act or be allowed to act in the same way as to all members of the class . . . Viewed in this light, multiple litigation creates a very real risk that the defendants will be held to incompatible standards of conduct, and therefore this action is entitled to class certification under 23(b)(1 )(A)"); See also National Treasury Employees Union v. Reagan, 509 F. Supp. 1377, 1340-41 (D.D.C. 1981) (class of federal employees challenging hiring freeze certified under 23(b)(1)(A)).

The application of the "limited fund" fund rationale of Rule 23(b)(1)(B) to this case is demonstrated by a similar case involving a large class of federal retirement beneficiaries. In Maysey v. Andrus, 481 F. Supp. 850 (DD.C. 1979), plaintiff sought to represent a class of former federal retirees in a challenge to a reemployment practice that discriminated on the basis of age. The court granted the plaintiff's motion for class certification under both Rule 23 (b)(1)(B) & (2) and noted that:
. . . even tough [the named plaintiff], if he prevails, may eventually be competing with other class members for a limited number of federal positions, he may fairly and adequately protect the interests of the class. Suits under Rule 23(b)(1)(B) inevitably involve class representatives and class members competing for scarce, or limited, resources; the purpose of class adjudication under this provision is to present the Court with the entire matter, thereby precluding an award of individual relief which would ignore the interests of other similarly situated parties.
481 F. Supp. at 854.

That the "limited fund" rationale has application broader than to funds of money is made clear in the Advisory Notes to the Rule:
. . . [P]roblems, however, can arise in the absence of a fund either present or potential. A negative or mandatory injunction secured by one of a numerous class may disable the opposing party from performing claimed duties toward the other members of the class or materially affect his ability to do so.

See Advisory Notes to Federal Rule of Civil Procedure 23(b)(1)(B). In this case, defendants receive thousands of applications for admission to each year's class, which is limited in number to between approximately 350-400 students. A determination that any one applicant was wrongfully denied admission could affect the claims of others similarly situated. Certification under Rule 23(b)(1)(B) based on the "limited fund" rationale is ideally suited to such a case.

3. Plaintiff's Punitive Damages Claims Qualify for Class Certification Under Rule 23(b)(1) & (2)

Plaintiff's Complaint includes a claim for punitive damages, one of the remedies available in federal civil rights cases. See, e.g., Smith v. Wade, 461 U.S. 30, 35-36 (1983); Vetters v. Berry, 575 F.2d 90, 96 (6th Cir. 1978): 42 U.S.C. 1981, 1983. Because the issues related to award of punitive damages--defendants' class-wide conduct of race discrimination--are the same for all class members, class of the punitive damages claims is appropriate.

The Sixth Circuit has previously approved the procedure for a class-wide award of punitive damages based on a single adjudication of the issue for all of the class members. In Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988), plaintiffs brought a class action against a chemical corporation for personal injuries and property damage sustained by residents who lived near the company's waste burial site in Tennessee. The district court certified a Rule 23(b)(3) class and eventually entered judgment against the chemical company, together with an award of compensatory damages to the five representative class members. The district court also made a class-wide award of punitive damages before determining compensatory damages for remaining class members. The Sixth Circuit specifically approved this procedure:
. . . Lastly, the district court need not defer its award of punitive damages prior to determining compensatory damages for the entire class of 128 individuals. So long as the court determines the defendant's liability and awards representative class members compensatory damages, the district court may in its discretion award punitive damages to the class as a whole at that time.
855 F.2d at 1217. 2

In this case, a finding by the Court that defendants' admissions policies or practices violate plaintiff's constitutional rights means that plaintiff and others similarly situated are entitled to an award of at least nominal damages, see, e.g., Carey v. Piphus, 435 U.S. 247, 266 (1978), which may support an award of punitive damages in an appropriate case, see, e.g., Beauford v. Sisters of Mercy-Province of Detroit, Inc., 816 F.2d 1104, 1108 (6th Cir. 1987), cert. denied, 484 U.S. 913 (1987). Because punitive damages are awarded to punish the defendant for its wrongful conduct, it would be proper to make a one-time, class-wide award of punitive damages without the necessity of determining the compensatory damages to which all of the class members may be entitled.

A class action certified under Rule 23(b)(2) may include claims for monetary relief where, as here, the action is predominantly one for declaratory and injunctive relief. See, e.g., Robertson v. National Basketball Ass'n, 556 F.2d 682, 685 (2nd Cir. 1977); In re Jackson Lockdown/MCD Cases, 107 F.R.D. 703, 710-11 (E.D. Mich. 1985); Edmonson v. Simon, 86 F.R.D. 375, 383 (N.D. Ill. 1980); Day v. NLO, 851 F. Supp. 869, 886-87 (S.D. Ohio 1994); 1 NEWBERG 4.14; WRIGHT & MILLER 1775. Consequently, the punitive damages class in this case may be certified under either Rule 23(b)(1) or Rule 23(b)(2). 3 See also, e.g., In re "Agent Orange" Product Liability Litigation, 100 F.R.D. 718, 728 (E.D.N.Y. 1983) (certifying Rule 23(b)(1) punitive damages class for claims arising from exposure to Agent Orange), mandamus denied sub nom In re Diamond Shamrock Chemical Co., 725 F.2d 858 (2nd Cir.), cert denied, 465 U.S. 1067 (1984); Day v. NLO, 851 F. Supp. 869, 887 (S.D. Ohio 1994) (certifying Rule 23(b)(2) punitive damages class in claims arising out of exposure to radiation).

Having satisfied the requirements of Rule 23(a) and 23(b), plaintiff has the propriety of class certification. Considerations that are present when certification is sought under Rule 23(b)(3) do not arise in a certification under 23(b)(1) & (2). 4 Notably, however, in addition to fulfilling the requirements of Rule 23(a) and 23(b)(2), plaintiff's claims are well suited for class certification for reasons in addition to fulfilling the requirements of the rules. First, during the pendency of a class action, the statute of limitations is tolled on the individual claims of the unnamed class members. See, e.g., American Pipe & Construction, v. Utah, 414 U.S. 538, 554 (1974); Bromley v. Michigan Education Ass'n., 178 F.R.D. 148, 158 (E.D. Mich. 1998). Absent certification, the unnamed class members risk expiration of the statute of limitations on their claims unless each member files suit separately. Second, class certification means that each class member has the benefit of or is bound by the resjudicata effects of class-wide adjudications. See, e.g., Barney v. Holzer Clinic, Ltd., 110 F.3d 1207, 1213 n. 10 (6th Cir. 1997); McCoy v. Salem Mortgage Co., 74 F.R.D. 8, 13-14 (E.D. Mich. 1976). For example, a determination of liability as to the class removes the need to litigate that issue as part of individual claims for compensatory damages. Finally, courts have noted that considerations of mootness make student-initiated claims particularly appropriate for class certification. See, e.g., Guckenberger v. Boston University, 957 F. Supp. 306, 326 (D. Mass. 1997) (certifying class action by disabled students against university ("[s]tudents graduate, transfer, drop out, move away, grow disinterested, fall in love . . . All too often student-initiated disputes escape review . . . The class action mechanism solves this potential mootness problem.

II. BIRFURCATION OF LIABILITY AND DAMAGES TRIALS

Plaintiff has also moved, pursuant to Federal Rule of Civil Procedure 42(b), for an order bifurcating the liability and damages phases of the case following certification of the class. The first phase of the trial would consider liability issues common to the class -- whether defendants' admissions policies and practices violate the equal protection guarantees of the Constitution and federal civil rights statutes; and whether defendants should be enjoined from use of those policies and practices in the future. The second phase would be a jury trial determination of amount of compensatory damages to be awarded plaintiff and of the punitive damages to be awarded to the class. The individual compensatory damages or remedial claims of other class members (i.e., an order admitting a particular class member to the Law School) could be tried following these class-wide determinations. See, e.g., Smith v. University of Washington Law School, No. 97-335Z, 1998 WL 199286 (W.D. Wash. April 22,1998) (bifurcation of liability and damages trials).

Rule 23 (a)(4) states specifically that "[w]hen appropriate . . . an action maybe brought or maintained as a class action with respect to particular issues. . . ." Bifurcation is a commonly used case management technique in cases where there are both common class issues and individual issues, such as for damages. See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 343 n.24 (1977); Bailey v. Great Lakes Canning. Inc., 908 F.2d 38, 39 (6th Cir. 1990), EEOC v. Monarch Machine Tool Co., 737 F.2d 1444,1449 (6th Cir. 1980); Little Caeser Enterprises, Inc. v. Smith, 172 F.R.D, 236, 245 n.4 (E.D. Mich. 1997) (where there are differences in damages between class members, "the question of damages can be severed from that of liability and tried on an individual basis") (quoting 7B WRIGHT & MILLER 1792); 5 McCoy v. Salem Mortgage Co., 74 F.R.D. 8, 13 (E.D. Mich. 1976). This case, with the large number of class members who have suffered common harm in the violation of their constitutional rights, but who may have varying claims for compensatory damages presents the paradigm for bifurcation.

CONCLUSION
For all the foregoing reasons, Plaintiff respectfully requests the Court to grant the motion for class certification pursuant to Rule 23(b)(1) & (2) and to bifurcate trial of liability and damages issues.


FOOTNOTES:

1 Plaintiff's proposed class is not confined to those applicants who would have been admitted to the Law School "but for" defendants' unlawful discrimination. All applicants who were or will in the future be prevented from "competing on an equal footing" because of defendants' racially discriminatory policies have sustained or will in the. future sustain cognizable injury. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 211 (1995); see also. e.g., Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 666 (1993); Heckler v. Mathews, 465 U.S. 728, 733-37 (1984); Brunot v. City of Columbus, 1 F.3d 390, 396-97 (6th. Cir. 1993), cert. denied, 510 U.S. 1164; Price v. City of Charlotte, 93 F.3d 1241, 1245-48 (4th Cir 1996); Kresnak v. City of Muskegon Heights, 956 F. Supp. 1327, 1338 (W.D.Mich. 1997).

2 The Sixth Circuit held that the district court's determination of $7.5 million in punitive damages was based, in part, on improper substantive grounds and remanded for recomputation 855 F.2d at 1217.

3 The Court may also reserve for later determination the issue of which subpart of Rule 23(b) is most appropriate for class certification of the punitive damages portion of the case. See, e.g., Morgan v. United Parcel Service, 169 F.R.D. 349, 358 (E.D. Mo. 1996); Presseisen v. Swarthmore College, 71 F.R.D. 34, 47 (E.D, Pa. 1976); 1 NEWBERG 4.14, 4.17.

4 For example, plaintiff need not establish that questions of law or fact common to the class "predominate" over issues affecting individual class members (although they certainly do here on liability and punitive damages issues). Moreover, there is no require under 23(b)(1) & (2), as there is under 23(b)(3), that the Court find that "a class action is superior to other available methods for the fair and efficient adjudication of the controversy." See Rule 23(b)(3); Penland v. Warren County, 759 F.2d 524, 531 (6th Cir. 1985) ("superior method criterion has been held relevant, however, only to class actions sought to be certified under F.R.C.P. 23 (b)(3)").

Although plaintiff believes the circumstances of this case also qualify it for class action certification under Rule 23(b)(3), class actions that qualify under Rules 23(b)(1) & (2) generally should not be certified under Rule 23(b)(3). See, e.g., Robertson v. National Basketball Ass'n., 556 F.2d 682, 685 (2nd Cir. 1977) (Rule 23(b)(1) preferable to Rule 23(b)(3)); Van Gemert v. Boeing Co., 259 F. Supp. 125, 130-31 (S.D.N.Y. 1966); NEWBERG, 4.20, at 4-71.

5 Such a bifurcated procedure is also compatible with plaintiff's request, pursuant to Rule 38, for a jury trial as to damages only. Liability issues can be determined in a bench trial before this Court, followed by jury trial determinations on the amount of any class-wide punitive damages and for individual damages or relief.

Dated:  7/30/98 MASLON EDELMAN BORMAN & BRAND, LLP


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ATTORNEYS FOR PLAINTIFF


Grutter briefs – Table of Contents


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