Brown et al v. Yellow Transportation, Inc.

Filing 128

MEMORANDUM Opinion and Order Signed by the Honorable Joan B. Gottschall on 5/11/2011.(kj, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICST OF ILLINOIS
EASTERN DIVISION
CHARLES BROWN, JEFFREY BURKS,
ANTONIO COLON, JAMES DEMOSS,
JAMESON DIXON, CLARK FAULKNER,
KENNETH GEORGE, LEONARD GREGORY,
MARSHUN HILL, CEDRIC MUSE, LAROY
WASHINGTON, DARRELL WILLIAMS,
CHARLES WOODS, MICHAEL WOODS, and
MACK LEONARD, on behalf of themselves and
similarly situated African-American employees,
Plaintiffs,
v.
YELLOW TRANSPORTATION, INC., and YRC,
INC.,
Defendants.

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Case No. 08 C 5908
Judge Joan B. Gottschall

MEMORANDUM OPINION & ORDER
The named Plaintiffs (“Plaintiffs”) have filed a complaint on behalf of themselves and
other similarly situated African-American employees (the “putative class”) against defendant
freight transportation companies Yellow Transportation, Inc. (“Yellow”) and YRC, Inc.
(“YRC”). The Plaintiffs allege that both defendants violated the Civil Rights Act of 1866, 42
U.S.C. § 1981, by creating a racially hostile work environment for African-American employees,
subjecting those employees to disparate treatment, and retaliating against the employees when
they complained about the discriminatory conduct. Presently at issue is the Plaintiffs’ motion for
an order certifying this case as a class action. For the reasons set forth below, the court grants
the Plaintiffs’ motion.

I. BACKGROUND
Since October 15, 2004, the Plaintiffs claim that they have suffered racial discrimination
at the hands of Yellow and, later, YRC. All of the Plaintiffs and putative class members initially
worked for Yellow or YRC at a distribution facility in Chicago Ridge, Illinois; when this facility
closed in 2009, some—but not all—of the class members were transferred to the YRC facility
located in Chicago Heights, Illinois.1
The Plaintiffs allege that Yellow and YRC failed to address recurring complaints
regarding other employees’ racially hostile behavior, including turning a blind eye to (1) nooses
repeatedly being displayed at the Chicago Ridge facility, (2) racially hostile graffiti placed in the
bathrooms, and (3) other employees’ practices of using of racial slurs, wearing racially hostile
clothing, and exposing racially hostile tattoos. In addition, the Plaintiffs allege that Yellow and
YRC subjected them to disparate treatment on account of their race by, inter alia, disciplining
African-Americans more stringently than similarly situated Caucasian employees, and by
promoting less senior Caucasians instead of (or prior to) promoting African-Americans. Finally,
the Plaintiffs allege that Yellow and YRC retaliated against them and other members of the
putative class for complaining about the hostile work environment and racially disparate
treatment.

As a result, the Plaintiffs seek to certify a class consisting of the following

individuals:

1

Yellow, together with another freight company named Roadway Express, Inc.
(“Roadway”), began operating as YRC in about October 2008. Thus, Yellow operated the
Chicago Ridge location from about October 2004 until October 2008; YRC operated the facility
from that point until the facility closed in December of 2009. The Chicago Heights location was
initially operated by Roadway, but by the time the Chicago Ridge employees were transferred to
Chicago Heights, the Chicago Heights location was run by YRC.
2

All current and former African-American employees employed between October
15, 2004, and the present by YRC, Inc. and Yellow Transportation, Inc. at their
facility located at 10301 S. Harlem Ave., Chicago Ridge, Illinois (“Chicago
Ridge”) and those Chicago Ridge employees transferred in 2009 to work at the
facility located at 2000 Lincoln Highway, Chicago Heights, Illinois (“Chicago
Heights”).
According to the Plaintiffs, this class would encompass approximately 354 people. The court
now turns to whether this putative class is appropriate for certification under Federal Rule of
Civil Procedure 23.
II. LEGAL STANDARD
Pursuant to Rule 23, the Plaintiffs bear the burden of proving that: (1) the class is so
numerous that joinder of all members 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. Fed. R. Civ. P. 23(a)(1)–(4); Eisen v. Carlisle & Jacquelin, 417
U.S. 156, 162-63 (1974).
In addition, the putative class must also satisfy the prerequisites set forth in Rule 23(b).
Eisen, 417 U.S. at 163. To satisfy Rule 23(b)(2), the Plaintiffs must establish that “the party
opposing the class has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” Under Rule 23(b)(3), the Plaintiffs must show that “questions of law or fact common to
class members predominate over any questions affecting only individual members, and that a
class action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” But although the burden rests with the Plaintiffs, the court is reminded that Rule

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23 ought to be liberally construed so as to favor the maintenance of class actions where
appropriate. In re Evanston Nw. Healthcare Corp. Antitrust Litig., 268 F.R.D. 56, 60 (N.D. Ill.
2010); see King v. Kansas City Southern Indus., 519 F.2d 20, 26 (7th Cir. 1975). Here, the
Plaintiffs argue that the class is appropriate for certification under 23(b)(2); failing that, they
argue that the class could be certified under a hybrid approach, so that the class would receive
equitable relief under Rule 23(b)(2) and damages under Rule 23(b)(3). Finally, the Plaintiffs
claim that the class could be certified under Rule 23(b)(3) alone.
II. DISCUSSION
1.

Standing

As a preliminary matter, Yellow and YRC state that what they call “the Chicago Heights
subclass members” do not have standing to pursue any claim. This argument is predicated in
part upon the Defendants’ argument that the Plaintiffs actually seek to certify two subclasses: (1)
those current and former African-American employees employed from October 15, 2004 to the
present by YRC and Yellow at the Chicago Ridge location, and (2) all of the Chicago Ridge
employees who were transferred to the Chicago Heights location in 2009. In other words, the
Defendants would define their “Chicago Heights subclass” to include employees of any race.
As it turns out, starting in 2006 the Equal Employment Opportunity Commission and
others filed three lawsuits against YRC and another of its predecessor companies, Roadway,
alleging racial discrimination at the Chicago Heights location. The cases were recently resolved
by a consent decree, which provides both monetary and equitable relief to certain employees.
See EEOC v. Roadway Express, Inc., Nos. 06 C 4805, 08 C 5555; Bandy v. Roadway Express,
Inc., No. 10 C 5304 (N.D. Ill. Jan. 12, 2011) (“Consent Decree”). As a result, the Defendants

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claim that members of the “Chicago Heights subclass” no longer have standing to maintain this
action.
Because standing is an antecedent legal issue, the court must address this question before
proceeding to the Rule 23 analysis. Arreola v. Godinez, 546 F.3d 788, 794 (7th Cir. 2008); see
Sherman ex rel. Sherman v. Koch, 623 F.3d 501, 506-07 (7th Cir. 2010). The court first notes
that it is unpersuaded by Yellow and YRC’s definition of the “Chicago Heights subclass.” The
Plaintiffs have made it unequivocally clear that the class they seek to certify consists solely of
those African-American employees who initially worked at the Chicago Ridge location and
certain of those same employees who were later transferred to Chicago Heights.2
Moreover, “standing and entitlement to relief are not the same thing. Standing is a
prerequisite to filing suit, while the underlying merits of a claim (and the laws governing its
resolution) determine whether the plaintiff is entitled to relief.” Arreola, 546 F.3d at 795. In this
case, the redress sought by the Plaintiffs encompasses a number of alleged discriminatory
practices dating back to Yellow’s 2004 operation of the Chicago Ridge location. These practices
are not—indeed, they could not be—addressed in a consent decree covering Roadway and
YRC’s operation of the Chicago Heights facility. In addition, the putative class is not identical
to the class of persons covered by the consent decree. For instance, the settlement classes
described in the consent decree are limited to particular African-American employees: those
holding the position of dockworker, switcher, or janitor positions including seniority list,
percenter, and casual positions. See Consent Decree at 4-5, ECF No. 118-5. And while some of
2

See, e.g., Pls.’ Mem. In Supp. of Mot. for Class Certification at 2 (“The named Plaintiffs
and the class they seek to represent are current and former African-American employees who
worked at Defendants’ Chicago Ridge location at some point between October 15, 2004, and the
present.”).
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the equitable relief described in the consent decree applies to all African-American employees,
see id. at 7, this is not universally true. For instance, the consent decree requires that a monitor
be appointed “to oversee the implementation by YRC of the terms of [the] Decree,” id. at 22, but
this monitor’s scope of duties “pertains only to dockworkers, switchers, and janitors at YRC’s
[Chicago Heights] location,” id. at 23. Here, by contrast, the putative class would encompass
“[a]ll current and former African-American employees” who were employed at Chicago Ridge
since October 15, 2004.
To have standing, a plaintiff need only allege that he “has suffered an injury in fact which
is fairly traceable to the challenged action of the defendant and likely . . . to be redressed by a
favorable decision.” Arreola, 546 F.3d at 795. There is no question that the putative class
satisfies this standard. And even if a plaintiff “may no longer be entitled to all types of relief that
he requested, the law does not preclude a plaintiff from filing suit simply because some forms of
relief may be unavailable, or indeed because in the end he cannot prove that he is entitled to any
relief.” Id. Thus, the court declines to carve out those portions of the Plaintiffs’ claims that may
not ultimately entitle them to relief. See id. (“When deciding questions of standing, courts must
look at the case as a whole, rather than picking apart its various components to separate the
claims for which the plaintiff will be entitled to relief from those for which he will not.”). The
putative class has standing to maintain a class action if certification is otherwise appropriate
under Rule 23, which is all that should be decided at this point in time.

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2.

Rule 23(a)
a)

Numerosity

To obtain class certification, the Plaintiffs must show numerosity, commonality,
typicality, and adequacy of representation. Siegel v. Shell Oil Co., 612 F.3d 932, 935 (7th Cir.
2010). In this case, the Plaintiffs made use of the Defendants’ own employee information
system to winnow down the list of putative class members and have arrived at the reasonable
estimate of about 354 individuals. While Yellow and YRC argue that their “Chicago Heights
subclass” does not satisfy the numerosity requirement, as detailed above, the court rejects this
attempt to redefine the class, and Yellow and YRC appear to agree that the class as presently
defined is sufficiently numerous. Thus, the Plaintiffs’ good-faith estimate suffices. See Marcial
v. Coronet Ins. Co., 880 F.2d 954, 957 (7th Cir. 1989) (plaintiffs need not specify the exact
number of people in the class, but may not rely on conclusory allegations or speculation as to
class size); Radmanovich v. Combined Ins. Co. of Am., 216 F.R.D. 424, 431 (N.D. Ill. 2003)
(while an exact number is not required, a plaintiff is “required to provide a good faith estimate of
the size of the class”). The court finds that the numerosity requirement is satisfied because it
would be impracticable to join more than 350 individuals or to relitigate the § 1981 claims
hundreds of times. See Radmanovich, 216 F.R.D. at 431.
b)

The Effect of Supervisors in the Class

The court next must determine whether there are common questions of law or fact
amongst the putative class, whether the claims and defenses of the Plaintiffs are typical of those
in the class, and whether the Plaintiffs’ counsel and the named Plaintiffs themselves will
adequately protect the interests of the class. These inquiries are often interrelated, see, e.g.,

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Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992), but here in particular there is one issue
that stands out: whether a class defined to include “all African-American employees”—i.e., both
supervisors and non-supervisors—is appropriate for certification given that the complainedabout conduct was undertaken by supervisors and non-supervisors alike.

Making matters

somewhat more complicated, one of the named Plaintiffs, Mr. Gregory, held a supervisory role,
raising the question as to whether his claims are typical and whether his role creates a conflict of
interest so as to render him an inadequate representative under Rule 23(a)(4).
In some cases, the inclusion of supervisors as part of the class when they are also part of
the problem renders class certification inappropriate. This is because in many discrimination
class action suits, the plaintiffs’ allegations focus solely upon decisions relating to individual
class members: hiring, promotion, discipline, or the like. In those cases, a supervisor may have
an actual conflict of interest with the rest of the class. See, e.g., Randall v. Rolls Royce Corp., --F.3d ---, 2011 WL 1163882 (7th Cir. 2011). For instance, in Randall, the Seventh Circuit found
that the named plaintiffs—both supervisors—could not adequately represent the interests of the
class, because the plaintiffs sought recovery under Title VII and the Equal Pay Act. The court
noted that these plaintiffs had an untenable conflict of interest, because as supervisors, they had
authority over compensation and could manufacture evidence of discrimination. See id. at *5.
However, there is no per se rule; instead, “[t]he question whether employees at different
levels of the internal hierarchy have potentially conflicting interests is context-specific and
depends upon the particular claims alleged in a case.” Staton v. Boeing Co., 327 F.3d 938, 95859 (9th Cir. 2003). Here, the nature of the conduct alleged largely alleviates any concern.
Although the Plaintiffs have detailed instances of disparate treatment, they have also made it

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clear that those incidents are recounted only to support their hostile work environment claims—
claims that are further supported by allegations of public, frequent,3 conduct, including a number
of noose hangings “in highly visible places”; an incident involving hanging stuffed monkeys
from a ceiling; racially hostile graffiti placed in the bathrooms, workrooms, and on the outside of
trailers; the open display of racially hostile tattoos, clothing, and symbols; and the broadcasting
of racially disparaging terms over the company radio. Given the particulars of the conduct
alleged, the inclusion of both supervisor and non-supervisor employees in the class does not
destroy commonality, typicality, or adequacy. See Smith v. Nike Retail Servs., Inc., 234 F.R.D.
648, 661 (N.D. Ill. 2006) (“Here the strength of the common injury and interest shared by the
named plaintiffs and class members—the harm caused by an allegedly hostile work environment
and the interest in eliminating that environment—plainly overrides any potential conflicts.”);
Radmanovich v. Combined Ins. Co. of Am., 216 F.R.D. 424, 434 (N.D. Ill. 2003) (noting that
“courts have certified classes that included both supervisory and nonsupervisory personnel where
all employees share the same interests and suffered the same injuries” and going on to find that
the plaintiff adequately represented the interests of the class); Jefferson v. Windy City
Maintenance, Inc., No. 96 C 7686, 1998 WL 474115, at *8-9 (N.D. Ill. Aug. 4, 1998)
(recognizing that there may be a “general tension between a supervisor who initiates and may
implement discipline and those who may be the objects of the discipline,” but finding that “any
such tension is overcome by the supervisor’s personal interest in eliminating the alleged
discrimination as to herself”); see also Palmer v. Combined Ins. Co. of Am., No. 02 C 1764, 2003
WL 466065, *2-3 (N.D. Ill. Feb. 24, 2003). The court also notes that if an actual conflict of
3

See Pls.’ Mem. In Support of Mot. for Class Certification at 9 (citing multiple plaintiffs’
deposition testimony that racially charged graffiti occurred at least once per week).
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interest appears down the road, the court may at that time certify subclasses with separate
representation.4 See Kohen v. Pacific Inv. Mgmt. Co. LLC, 571 F.3d 672, 680 (7th Cir. 2009)
(“To deny class certification now, because of a potential conflict of interest that may not become
actual, would be premature.”) (citations omitted).
c)

Commonality

Turning now to the question of commonality, “some factual variation among the class
grievances will not defeat a class action.” Rosario, 963 F.2d at 1017-18. To satisfy the
commonality requirement, the Plaintiffs need only establish a single common nucleus of
operative law or fact. Rogers v. Baxter Int’l Inc., No. 04 C 6476, 2006 WL 794734, at *3 (N.D.
Ill. Mar 22, 2006) (citing Gomez v. Ill. State Bd. of Educ., 117 F.R.D. 394, 399 (N.D. Ill. 1987)).
Where a defendant engages in “standardized conduct” toward members of the proposed class, the
commonality requirement is often satisfied. Nike Retail Servs., 234 F.R.D. at 659.
The Plaintiffs argue that YRC and Yellow’s local management willfully ignored or
promoted the hostile work environment, and that corporate management failed to exercise
oversight to ensure that its non-discrimination policies were enforced. In return, the Defendants
argue that the Plaintiffs focus solely upon individual complaints and fail to “bridge the gap”
between those complaints and the injuries suffered by the class. Yellow and YRC also argue that

4

For instance, the court notes that an employer has an affirmative defense if it can
establish: “(a) that the employer exercised reasonable care to prevent and correct promptly any
harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of
any preventive or corrective opportunities provided by the employer or to avoid harm
otherwise.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998); Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 765 (1998); see also Cerros v. Steel Techs., Inc., 398 F.3d 944 (7th Cir.
2005). If the conduct of supervisors becomes a disputed factual issue, the court may revisit its
decision to certify the class as presently defined.
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their decentralization in decisionmaking allowed supervisors to rely on both objective and
subjective factors, which “eviscerate[s] any claim of standardized behavior.” Defs.’ Resp. at 21.
When employers use subjective criteria in employment decisions, would-be class action
plaintiffs often have a tougher row to hoe. See McReynolds v. Lynch, No. 05 C 6583, 2010 WL
3184179, at *5 (N.D. Ill. Aug. 9, 2010). However, some subjectivity in decisionmaking does not
preclude a finding of commonality.

For instance, even company-wide classes may be

appropriate for certification if statistical evidence supports a pattern of discriminatory outcomes
based on subjective decisionmaking. See Adams v. R.R. Donnelley & Sons, --- F. Supp. 2d ---,
2001 WL 336830, at *3-4, *11 (N.D. Ill. 2001). Yellow and YRC rightly note that the Plaintiffs’
claims implicate a number of supervisors, employees holding different positions, and time
periods. Where this type of diversity creates the need for a multitude of individual inquiries,
commonality is destroyed. See Puffer v. Allstate Ins. Co., 255 F.R.D. 450, 460-61 (N.D. Ill.
2009) (collecting cases). But here, the Plaintiffs allege that various racially hostile incidents
were witnessed first-hand by multiple people, and discussed and shared with many others. For
this reason, the commonality requirement is satisfied. See Adams, 2001 WL 336830, at *13
(“The issues of what occurred at a particular venue, whether it rose (or fell) to the level necessary
to be actionable under the law, and whether the company should be held liable because of the
action or inaction of management provide a common nucleus of operative fact and law sufficient
to satisfy Rule 23(a)(2)’s commonality requirement.”).
d)

Typicality

The Plaintiffs must also show that their claims are typical of the class. This inquiry is
closely related to commonality, see Keele v. Wexler, 149 F.3d 589, 594 (7th Cir. 1998), and

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focuses upon Yellow’s and YRC’s actions, not any particular defenses they may have against the
named Plaintiffs. Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir. 1996). In other words,
“[a] claim is typical if it arises from the same event or practice or course of conduct that gives
rise to the claims of other class members and [the plaintiffs’] claims are based on the same legal
theory. Oshana v. Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006). The Plaintiffs describe a
number of events that are common to, and shared across, members of the putative class,
including the named Plaintiffs. Moreover, the Plaintiffs assert one overarching hostile work
environment claim. While the Plaintiffs also describe certain individualized adverse decisions
and disparate treatment, and while Yellow and YRC may establish that their decisions were not
made on the basis of race, those are the very types of particularized defenses that are irrelevant to
the typicality analysis. See Wagner, 95 F.3d at 534. Here, the Plaintiffs’ claims “have the same
essential characteristics as the claims of the class at large,” Muro v. Target Corp., 580 F.3d 485,
492 (7th Cir. 2009), and they have established that their claims are typical.
e)

Adequacy

Under Rule 23(a)(4), the Plaintiffs must also establish adequacy of representation. This
analysis is composed of two separate inquiries: “the adequacy of the named plaintiff’s counsel,
and the adequacy of representation provided in protecting the different, separate, and distinct
interest of the class members.” Retired Chi. Police Ass’n v. City of Chi., 7 F.3d 584, 598 (7th
Cir. 1993) (quoting Sec’y of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir. 1986) (en banc)
(quotation marks omitted)).
Yellow and YRC do not contest the adequacy of the Plaintiff’s counsel, and the court
finds that counsel possess the necessary qualifications to protect the interests of all class

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members.

Each of the named counsel have significant experience in both employment

discrimination litigation and in class action litigation, and the history of this litigation thus far
indicates that counsel have devoted significant time and resources to the case.

As to the adequacy of the named Plaintiffs, the crux of Yellow and YRC’s complaint is
that the inclusion of supervisors in the class (and of Mr. Gregory as a named Plaintiff in
particular) renders the class representatives inadequate. Because the court has already explained
why the nature of the Plaintiffs’ hostile work environment claim largely eliminates the risk of
conflict, the court finds the named Plaintiffs to be adequate representatives for the class.
3.

Rule 23(b)

The Plaintiffs seek certification under Rule 23(b)(2), but go on to argue that if this is
inappropriate, a hybrid certification or a certification under Rule 23(b)(3) will suffice. Finally,
they argue that if neither of these two approaches works, the class should be certified entirely
under Rule 23(b)(3).
The court agrees with Yellow and YRC that certification under Rule 23(b)(2) is
inappropriate. The Seventh Circuit has made it clear that Rule 23(b)(2) is an option “only when
monetary relief is incidental to the equitable remedy” sought by the Plaintiffs. Jefferson v.
Ingersoll Int’l Inc., 195 F.3d 894, 898 (7th Cir. 1999). As the Defendants point out, however,
the Chicago Ridge facility—which is where the vast majority of the alleged incidents took
place—has been closed since December of 2009.

In addition, many of the putative class

members are no longer employed with YRC and it is not clear when, or whether, they will ever
be rehired. Finally, the type of injunctive relief available at Chicago Heights is debatable in light

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of the relief already afforded by the consent decree. Any injunctive relief obtained by the
Plaintiffs may be limited in scope. Although the Yellow and YRC may have “acted or refused to
act on grounds generally applicable to the class,” the court cannot say that “final injunctive relief
or corresponding declaratory relief with respect to the class as a whole” is appropriate. See Fed.
R. Civ. P. 23(b)(2).
Nor is the monetary relief that the Plaintiffs seek incidental to their damages claims. To
be “incidental,” the computation of damages must be mechanical; that is, there must be no need
for individual evaluations. In re Allstate Ins. Co., 400 F.3d 505, 507 (7th Cir. 2005); see Lemon
v. Int’l Union of Operating Eng’rs, 216 F.3d 577, 581 (7th Cir. 2000). But the Plaintiffs seek
lost wages, “including back pay for failure to promote, and any lost benefits that would
otherwise have been available” absent the discrimination, as well as compensatory and punitive
damages.

These claims will require an individualized analysis of each class member’s

circumstances, rendering certification under Rule 23(b)(2) inappropriate. While the Plaintiffs are
correct that the court may consider a divided certification, “[w]hen substantial damages have
been sought, the most appropriate approach is that of Rule 23(b)(3), because it allows notice and
an opportunity to opt out.” Jefferson, 195 F.3d at 898; see Randall, 2011 WL 1163882, at *7 (“It
is only when the primary relief sought is injunctive, with monetary relief if sought at all
mechanically computable, that elaborate notice is not required and so Rule 23(b)(2) is applicable
because the claims of the class members are uniform . . . .”).
As Rule 23(b)(2) is inappropriate, the question remains whether the Plaintiffs satisfy the
requirements of Rule 23(b)(3), i.e., whether “questions of law or fact common to class members

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predominate over any questions affecting only individual members,” and whether “a class action
is superior to other available methods for fairly and efficiently adjudicating the controversy.”
The court has already explained why common questions of law and fact predominate
over the questions that affect only individual class members. The overarching hostile work
environment claim depends in large part upon experiences shared by a significant percentage of
the putative class. While individual damages determinations may be necessary, “the need for
individual damages determinations does not, in and of itself, require denial of [a] motion for
certification.” Arreola, 546, F.3d at 801.
As to whether a class action is a superior method of adjudication, the court should
consider the class members’ interests in individually controlling the prosecution of separate
actions, the extent and nature of any litigation concerning the controversy already begun by class
members, the desirability of concentrating the litigation of the claims in the particular forum, and
any difficulties in managing a class action. Fed. R. Civ. P. 23(b)(3)(A)-(D). The court finds that
a class action is a superior method of adjudication in this instance. The court has not been
informed of any currently pending litigation involving the claims at issue, and the
Roadway/YRC litigation was terminated in December of 2010. Nor is there indication that a
class member seeks to control individually the prosecution of his or her claim. As to the
question of manageability, the court finds that a class of about 350 individuals is manageable
even though certain issues, such as damages, will need to be decided separately. And, of course,
under Rule 23(b)(3), “[i]f the certified class representative does not adequately represent the
interests of some of the class members, those class members can opt out of the class action, can
seek the creation of a separately represented subclass, can ask for the replacement of the class

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representative, or can intervene of right and become named plaintiffs themselves, or even class
representatives, represented by their own lawyer.”

In re Brand Name Prescription Drugs

Antitrust Litig., 115 F.3d 456, 457-58 (7th Cir. 1997).
III. CONCLUSION
For the reasons set forth, the Plaintiffs’ motion for class certification is granted pursuant
to Rule 23(b)(3).

ENTER:

/s/
JOAN B. GOTTSCHALL
United States District Judge
DATED: May 11, 2011

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