Riffey et al v. Rauner et al

Filing 182

MEMORANDUM Opinion and Order. Signed by the Honorable Manish S. Shah on 6/7/2016: Plaintiffs' motion for class certification 80 is denied. The proposed class definition is too broad because it contains a great number of people who could no t have been injured by defendants' conduct. But even if injury can be presumed, plaintiffs' pursuit of refunds on behalf of a class requires individualized determinations that predominate over the remaining common questions. This denial is without prejudice to plaintiffs revising their proposed class definition or seeking class certification on non-damages issues. [For further detail see attached order.] Notices mailed by Judicial Staff. (psm, )

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THERESA RIFFEY,
SUSAN WATTS, and
STEPHANIE YENCER-PRICE,
Plaintiffs,

No. 10 CV 02477

v.

Judge Manish S. Shah

GOVERNOR BRUCE RAUNER and
SEIU HEALTHCARE ILLINOIS &
INDIANA,
Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs are personal assistants who provide in-home care for individuals
through the Illinois Department of Human Services Home Services Program. The
State of Illinois pays the plaintiffs, and they are represented by defendant SEIU
Healthcare Illinois & Indiana for purposes of collective bargaining with the state.
Plaintiffs are not members of the union (nor are they public employees), but until
recently, they were compelled to pay to the union a “fair-share” fee in order to
support its collective bargaining efforts. Plaintiffs filed suit to object to the
deduction of those fees as a violation of their First Amendment rights. The Supreme
Court, in Harris v. Quinn, 134 S.Ct. 2618 (2014), agreed with plaintiffs and held
that the fair-share fee procedures violated the First Amendment. Now on remand
from the Supreme Court—with an amended complaint adjusting the named

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plaintiffs and substituting the current governor of Illinois as a defendant—plaintiffs
seek a refund of the fair-share fees paid to the union.
Plaintiffs move to certify a class consisting of all personal assistants who, at
any point in time from April 22, 2008, to the present, were not members of the
union and who had fair-share fees deducted from payments made to them under
Illinois’s Home Services Program without their prior, written authorization. They
further request that their attorneys, including attorneys from the National Right to
Work Legal Defense Foundation, be appointed class counsel.
The central First Amendment issue in this case has been resolved by the
Supreme Court. But there are a few issues still on the table. Whether defendants’
conduct injured the plaintiffs, whether the affirmative defenses have merit, and
what is the appropriate remedy, if any, are all questions to be decided. While there
are certain common topics that may be suitable for class-wide resolution,
individualized questions predominate on the most pressing and important issue—
whether and how much money should be refunded to people who had fair-share fees
deducted from their pay. Plaintiffs’ motion for class certification is denied.
I.

Legal Standards
A plaintiff seeking to certify a class under Rule 23 of the Federal Rules of

Civil Procedure must first meet the “implicit requirement” that the class is defined
clearly and that membership is defined by objective criteria. Mullins v. Direct
Digital, LLC, 795 F.3d 654, 657 (7th Cir. 2015). The plaintiff must also meet the
four requirements of Rule 23(a)—numerosity, adequacy of representation,

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commonality, and typicality. Harper v. Sheriff of Cook County, 581 F.3d 511, 513
(7th Cir. 2009). Finally, the plaintiff must satisfy the requirements of at least one
subsection of Rule 23(b). Id. Because plaintiffs seek to certify a class under Rule
23(b)(3), they must show that issues common to the class members predominate
over questions affecting only individual members, and that a class action is superior
to other available adjudication methods. Fed. R. Civ. P. 23(b)(3); Messner v.
Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012).
A party seeking class certification “must affirmatively demonstrate”
compliance with Rule 23. Comcast Corp. v. Behrend, 133 S.Ct. 1426, 1432 (2013)
(quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011)); Szabo v.
Bridgeport Mach., Inc., 249 F.3d 672, 675 (7th Cir. 2001). Compliance with each
requirement must be shown by a preponderance of the evidence. Messner, 669 F.3d
at 811. A class may be certified only if a district court is “satisfied, after a rigorous
analysis,” that compliance with Rule 23 has been shown, even if the analysis entails
some overlap with the merits of the underlying claims. Wal-Mart Stores, Inc., 564
U.S. at 350–51; see also Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815 (7th
Cir. 2010). And if a class is certified, the district court must also appoint class
counsel. Fed. R. Civ. P. 23(g).
II.

Background
Under the Illinois Department of Human Services Home Services Program,

sometimes called the Rehabilitation Program, certain individuals who require inhome care can hire personal assistants, who are paid by the state. 20 ILCS § 2405/3.

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The statute provides that the personal assistants are considered public employees
only for the purposes of collective bargaining with the state, and SEIU serves as
their exclusive representative. Id. The union is obligated to represent all personal
assistants—both members of the union and nonmembers alike. 5 ILCS §§ 315/6,
315/8.
Personal assistants who are members of the union, naturally, pay union dues
in exchange for their membership. But until recently, the collective bargaining
agreements between the union and Illinois required that nonmembers pay fairshare fees to the union. Fair-share fees, also known as agency fees, are fees
collected from personal assistants who are represented by, but not members of, the
union and earmarked for activities related to collective bargaining, as opposed to
political or ideological activities. The Supreme Court has authorized the collection of
fair-share fees by public employee unions. Abood v. Detroit Bd. of Ed., 431 U.S. 209,
232 (1977).
Plaintiffs objected to the collection of those fees and filed suit. Their
complaint was dismissed, and that dismissal was affirmed by the Seventh Circuit.
The Supreme Court reversed and remanded the case for further proceedings.
Harris, 134 S.Ct. at 2644. Plaintiffs then filed an amended complaint and now move
for class certification. SEIU estimates that the putative class would include
approximately 80,000 personal assistants who paid approximately $32 million in
fair-share fees from April 2008 to the present. [106] ¶¶ 26, 29.1 Defendant SEIU

1

Bracketed numbers refer to entries on the district court docket.

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opposes class certification, while defendant Governor Rauner takes no position. See
[176].
The Supreme Court held that the “First Amendment prohibits the collection
of an agency fee from personal assistants in the Rehabilitation Program who do not
want to join or support the union,” Harris, 134 S.Ct. at 2644, but several issues are
still pending. In particular, SEIU has asserted affirmative defenses, including good
faith, unjust enrichment, estoppel, and the statute of limitations (to the extent
plaintiffs seek a remedy for violations outside the applicable period). [90] at 4–5. If
defendants are found liable for First Amendment violations, the remedy must be
determined. Pursuant

to

42

U.S.C. § 1983, plaintiffs seek nominal and

compensatory damages from the union, and in particular, seek a full refund of all
fair-share fees deducted from their pay. [79] at 11–12.
III.

Analysis
A.

First Amendment Injury and the Proposed Class Definition

At the heart of the parties’ arguments over class certification are the
necessary elements of an injury in the context of compelled subsidization of thirdparty speech, and whether such an injury can be proven on a class-wide basis.
“Section 1983 is a tort statute. A tort to be actionable requires injury.” Bart v.
Telford, 677 F.2d 622, 625 (7th Cir. 1982). Relatedly, “there can be no award of
compensatory damages if there is no harm (i.e., no loss to compensate for).” Gilpin
v. Am. Fed’n of State, Cty., and Mun. Emps., AFL-CIO, 875 F.2d 1310, 1314 (7th
Cir. 1989) (emphasis in original).

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The union insists that an individual cannot suffer a First Amendment injury
for compelled subsidization unless she also subjectively opposed the payment at the
time. Plaintiffs believe that a First Amendment injury occurs whenever an
individual is compelled to subsidize the speech of another without prior
authorization. And because the union received fair-share fees from nonmember
personal assistants without their affirmative consent, plaintiffs conclude that all
the nonmember personal assistants who paid fair-share fees suffered First
Amendment injuries—their money was wrongfully seized whether they agreed with
the union or not.
In Knox v. Service Employees International Union, Local 1000, 132 S.Ct. 2277
(2012), the Court decided whether a public union could collect a special fee, to be
used for political activities, from nonmembers who had previously objected to
subsidizing such activities, and what procedural safeguards the union must put in
place to comport with the First Amendment. It ultimately held that the union had
to first seek nonmembers’ affirmative consent before collecting fees for political
activities, because failing to do so “creates a risk that the fees paid by nonmembers
will be used to further political and ideological ends with which they do not agree.”
Knox, 132 S.Ct. at 2290. The Court held that the First Amendment prohibited the
fee-collection practice at issue, but it did so in the context of developing a procedural
framework that would minimize the risk of First Amendment infringement.
Although “[c]ourts ‘do not presume acquiescence in the loss of fundamental rights,’”
id. (quoting College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense

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Bd., 527 U.S. 666, 682 (1999)), the Court did not hold that everyone from whom fees
were taken suffered a First Amendment injury.
Implicit in the Court’s reasoning on compelled subsidization is a requirement
of the payor’s contemporaneous subjective opposition. For example, the First
Amendment prohibits public sector unions from extracting a loan from “unwilling”
nonmembers. Knox, 132 S.Ct. at 2293. This suggests that a loan extracted from a
willing nonmember would not encroach on the willing nonmember’s free-speech
rights. Opt-in procedures and obtaining affirmative consent minimizes the risk to
First Amendment values that comes with compelled subsidies. See id. at 2295–96
(quoting United States v. United Foods, Inc., 533 U.S. 405, 411 (2001)). But the
harm to be avoided is the forced support of speech that the compelled person does
not want to support. In invalidating the fair-share fees in this case, the Court relied
on “the bedrock principle that, except perhaps in the rarest of circumstances, no
person in this country may be compelled to subsidize speech by a third party that he
or she does not wish to support.” Harris, 134 S.Ct. at 2644. It follows that if a
personal assistant wants to support the union, collecting a fair-share fee from her
would not result in a First Amendment injury. Thus, to prove injury, and the
complete constitutional tort, plaintiffs must prove contemporaneous subjective
opposition to the compelled payments.
The possibility that not every individual included in the class definition was
injured does not preclude class certification. See Suchanek v. Sturm Foods, Inc., 764
F.3d 750, 757 (7th Cir. 2014) (“[A] class will often include persons who have not

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been injured by the defendant’s conduct.” (quoting Kohen v. Pac. Inv. Mgmt. Co.,
571 F.3d 672, 677 (7th Cir. 2009))). If the class includes a significant number of
people who could have been injured, but were not, it may be certified. But if “a great
many” or “a great number of” putative class members could not have been harmed
by defendants’ conduct, then the proposed class is too broad and should not be
certified. Kohen, 571 F.3d at 677; Messner, 669 F.3d at 824.
The union provides compelling evidence that a substantial number of
proposed class members did not object to paying the fair-share fee, and would have
consented if they had been given a choice. These personal assistants could not have
suffered a First Amendment injury. The majority of personal assistants in 2003
voted for union representation, and a majority ratified the CBA in 2008 and 2012.
The union points out that 65% of the proposed class members who are still personal
assistants have since joined the union. While views can change over time—and a
decision to join the union at a later date does not guarantee that the person
supported the union earlier—the union believes these people likely have always
supported the union and would not have objected to the deduction of fair-share fees.
Plaintiffs do not rebut this evidence; instead, plaintiffs argue that class members
who support the union should opt out after certification. This procedure might be
suitable if the class definition were not overly broad, but plaintiffs have the burden
to demonstrate—with evidence—that class certification is appropriate. Without
evidence to rebut the defense showing that a great many nonmembers who paid

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fair-share fees had no subjective opposition to the union, the proposed class includes
too many people who could not have been injured by the deduction.
Alternatively, if SEIU committed a complete First Amendment tort by taking
fees without consent (whether or not the nonmember wanted to support the union),
or if the proposed class simply includes people who were not (as opposed to could not
have been) damaged, class certification—as currently proposed by plaintiffs—is
nevertheless inappropriate under Rule 23.
B.

Rule 23(a)

“The general gate-keeping function of Federal Rule 23(a) ensures that a class
format is an appropriate procedure for adjudicating a particular claim by requiring
that the class meet the following requirements: (1) the class is so numerous that
joinder of all members is impracticable (numerosity);2 (2) there are questions of law
or fact common to the class (commonality); (3) the claims or defenses of the
representative parties are typical of the claims or defenses of the class (typicality);
and (4) the representative parties will fairly and adequately protect the interests of
the class (adequacy of representation).” Bell v. PNC Bank, Nat. Ass'n, 800 F.3d 360,
373 (7th Cir. 2015).3
The union does not challenge the numerosity requirement. According to defendant, the
proposed class would contain more than 80,000 members. [106] ¶ 26. This satisfies the
numerosity requirement of Rule 23(a).
2

Plaintiffs must demonstrate that the proposed class is sufficiently definite such that its
members are ascertainable. Mullins v. Direct Digital, LLC, 795 F.3d 654, 657 (7th Cir.
2015). The class definition must be 1) precise, 2) defined by objective criteria, and 3) not
defined in terms of success on the merits. Id. Plaintiffs’ proposed class is precisely defined
by union membership status and defendants’ conduct, and the definition does not depend
on the defendants’ liability. The ascertainability requirement, which defendant does not
challenge, is satisfied.
3

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1.

Commonality and Typicality

Commonality and typicality are frequently assessed together, as “both serve
as guideposts for determining whether under the particular circumstances
maintenance of a class action is economical and whether the named plaintiff's claim
and the class claims are so interrelated that the interests of the class members will
be fairly and adequately protected in their absence.” Wal-Mart Stores, Inc., 564 U.S.
at 349 n.5 (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147,
157–58 n.13 (1982)).
To satisfy Rule 23(a)’s commonality requirement, plaintiffs must show that
the claims “depend upon a common contention that is capable of class-wide
resolution.” Bell, 800 F.3d at 374. And “class-wide resolution means that
determining the truth or falsity of the common contention will resolve an issue that
is central to the validity of each claim.” Id. “Where the same conduct or practice by
the same defendant gives rise to the same kind of claims from all class members,
there is a common question.” Suchanek, 764 F.3d at 756. Similarly, plaintiffs can
satisfy the typicality requirement if they show that their claim “arises from the
same event or practice or course of conduct that gives rise to the claims of other
class members and . . . [the] claims are based on the same legal theory.” Oshana v.
Coca-Cola Co., 472 F.3d 506, 514 (7th Cir. 2006) (quoting Rosario v. Livaditis, 963
F.2d 1013, 1018 (7th Cir. 1992)).

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The plaintiffs had fair-share fees deducted without consent,4 and in that
respect, defendants’ conduct gives rise to the same kinds of claim across the
proposed class. The union argues that plaintiffs’ claims are neither typical nor
common because many class members had no objections to financially supporting
the union. I agree that whether class members were injured (or what amount of
damages would compensate for the injury, discussed below) is an individual
question. But “[t]he fact that the plaintiffs might require individualized relief or not
share all questions in common does not preclude certification of a class.” Bell, 800
F.3d at 379. Rule 23(a) does not require that all issues be common to the class, or
even the most important issue. See Wal-Mart Stores, Inc., 564 U.S. 338 at 359.
Classes may be certified even if “individual class members will still have to prove
the fact and extent of their individual injuries.” Mejdrech v. Met-Coil Sys. Corp., 319
F.3d 910, 912 (7th Cir. 2003).
Although the claim as a whole cannot be resolved on a class-wide basis, there
exist common issues that can, and Rule 23(c)(4) permits certification on particular
issues. “If there are genuinely common issues . . . identical across all the claimants,
. . . the accuracy of the resolution of which is unlikely to be enhanced by repeated
proceedings, then it makes good sense, especially when the class is large, to resolve
those issues in one fell swoop while leaving the remaining, claimant-specific issues
Plaintiff Yencer-Price does not meet the typicality requirement because the union’s
records show that she has been paying union dues rather than fair-share fees. Although she
disputes her union membership (and a copy of her union card is not in defendant’s records)
it does appear that she is not a person who had fair-share fees deducted, and thus is not a
class member. The dispute over her union-membership status makes her claim
“idiosyncratic or possibly unique” and makes her an unsuitable class representative.
Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 758 (7th Cir. 2014).
4

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to individual follow-on proceedings.” McReynolds v. Merrill Lynch, Pierce, Fenner &
Smith, Inc., 672 F.3d 482, 491 (7th Cir. 2012) (quoting Mejdrech, 319 F.3d at 911).
Whether defendant escapes liability because it acted in good faith based on the law
in effect at the time, whether the doctrine of unjust enrichment precludes monetary
relief, and whether plaintiffs should be estopped from seeking monetary relief
because they accepted the benefits of the CBA’s, are questions that are not
dependent on the individualized inquiries. Plaintiffs’ claims are typical of the
proposed class’s with respect to these common defenses. But in this case, plaintiffs
seek class certification “primarily to require that SEIU-HCII return to personal
assistants the monies wrongfully seized from them.” [81] at 1. With this professed
focus on the damages remedy, and without additional briefing on the prospect of
narrower, issue-based class certification, I decline—at this time—plaintiffs’
invitation to certify any alternative class I deem appropriate.
If class-wide compensatory damages is plaintiffs’ goal, their proposal for class
certification is not workable. As discussed above, I reject plaintiffs’ argument that a
First Amendment injury has already been established for each class member. But
even if injury can be assumed, the extent of the injury—the amount of damages
beyond nominal damages—will depend on the nonmembers’ subjective beliefs. If the
nonmember would have willingly paid a fair-share fee if given the choice, then the
deduction did not cause a monetary loss to that nonmember.5 The amount of fair-

5

The union’s evidence indicates there are many such people within the proposed class.

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share fees these people paid would not be a measure of the interference in their
First Amendment rights.
In addition, to the extent the compelled payment resulted in some tangible
benefit to the nonmember from the union, the deduction may not be an accurate
measure of loss. Compensatory damages are measured by the plaintiff’s loss, not the
defendant’s gain, see 1 D. Dobbs, Law of Remedies § 1.1, p. 5 (2d ed. 1993), and so if
the personal assistants received something of value, the net loss is not the amount
of the fair-share deduction. See Gilpin, 875 F.2d at 1316 (discussing, as a matter of
restitution, the prospect of offsetting improperly taken fees by the benefits obtained
by the union’s efforts). Perhaps the services received were not an adequate, or even
partial, substitute for the money that plaintiffs paid. Or perhaps the loss of the
opportunity to choose how to spend one’s own money should never be measured by
reference to the benefits coincidentally received. The point here is that the
compensatory damages remedy that plaintiffs seek is not simply a matter of
calculating full refunds of fair-share fees.
So even though plaintiffs’ claims share common questions with the proposed
class’s, and are typical in that they involve fair-share fee deductions, it would not
make sense to certify a class only to immediately enter a phase of individualized
damages inquiries—likely leading to decertification of the class for reasons of
adequacy and predominance.

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2.

Adequacy

Rule 23(a)(4) requires that the representative parties “fairly and adequately
protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “[A] class is not fairly and
adequately represented if class members have antagonistic or conflicting claims.”
Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993)
(quoting Rosario, 963 F.2d at 1018).
Plaintiffs argue that they are adequate representatives of their proposed
class because, in their view, they experienced the same First Amendment injury
resulting from the same conduct as the rest of the class members and share with
them an interest in not being compelled to pay fair-share fees without consent. The
union contends that plaintiffs’ requested relief and their anti-union ideology create
a fundamental conflict between them and the rest of the proposed class, which
includes

union

members

and

supporters,

making

plaintiffs

inadequate

representatives.
The union relies on Gilpin, 875 F.2d 1310, to argue that the relief sought by
plaintiffs conflicts with the interests of the rest of the class, precluding class
certification. Gilpin, another case sponsored by the National Right to Work Legal
Defense Foundation, involved a challenge by nonmembers to the calculation of fairshare fees imposed by a union. Id. at 1312. In that case, the named plaintiffs sought
a refund of the full fair-share fee amount—relief that was essentially punitive in
nature because it exceeded actual damages. Id. at 1315. In upholding a denial of
certification of a class of non-union members, the Seventh Circuit determined that

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such punitive relief was aligned with the pronounced anti-union ideology of the
Foundation rather than the goals of class members who opposed being overcharged
but otherwise supported the existence and activities of the union. Id. at 1313.
Gilpin is not quite as on-point as defendant suggests because the
compensatory damages remedy sought here—available only to those who did not
wish to join or support the union—is not punitive and can be awarded to those who
may not share plaintiffs’ ideological opposition to the union, but still did not want to
support the union with money.6 But to avoid the problems of a fail-safe class
definition, the proposed class necessarily includes people who do support the union
and are in ideological conflict with the named plaintiffs. Each of the named
plaintiffs believes that she did not receive any benefit from union representation,
and would seek damages even if it hampered or destroyed the union in its
representational capacity. [107-3] at 23–25, 28; [107-4] at 42, 44–45, 51; [107-5] at
24, 28. Plaintiffs Riffey and Yencer-Price testified that they did not want a union
representing personal assistants at all. [107-3] at 24; [107-5] at 23. And plaintiff
Watts accepted a national award from the Right to Work Foundation, whose goal is

The union does put forth evidence suggesting that a full refund of all fair-share fees would
be burdensome, and if plaintiffs’ injury and damages theory were correct, it would cripple
the union. SEIU collected roughly $32 million in fair-share fees from nonmember personal
assistants during the six-year class period. [106] ¶ 26. In 2014, it collected approximately
$7.3 million in union dues from members. Id. ¶ 27. The implication is that providing a full
refund of fair-share fees would be difficult given its limited annual income. Plaintiffs’
approach to remedy, while in the guise of compensatory damages, could be seen as a
litigation strategy designed to undermine the union. But the union does not elaborate on
either its ability to provide a refund or the effect a refund would have on its operations and
activities. In any event, not every class member suffered a First Amendment injury that
would entitle them to a refund, and a truly compensatory damages remedy would not be
punitive.
6

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to weaken or destroy public unions. [107-4] at 46–47; [107-8] at 2. In contrast,
defendant submitted 57 declarations from personal assistants in the proposed class,
from a variety of backgrounds, who say they support the union and did not object to
the fair-share fees deducted from their paychecks. See [110]–[166]. Some even
mistakenly thought they were members of the union while paying fair-share fees.
See [122] ¶ 5; [135] ¶ 7; [145] ¶ 3; [148] ¶ 3; [161] ¶ 7. These class members do not
want a refund and are worried about a large damages award’s effect on the union.
See, e.g., [115] ¶ 6; [152] ¶ 7; [159] ¶ 9. The class includes current members of the
union (formerly fair-share-fee-payors), and, the union argues, their views will not be
fairly and adequately represented by people who would be undeterred by the
prospect of the union’s dissolution.
The union also relies on Schlaud v. Snyder, 785 F.3d 1119 (6th Cir. 2015)
cert. denied sub nom. Schlaud v. Int’l Union, UAW, 136 S.Ct. 1512 (2016), to argue
that a conflict of interest precludes class certification. In Schlaud, the Sixth Circuit
upheld the denial of class certification under a similar set of facts because of a
conflict of interest between the named plaintiffs and the rest of the class. Id. at
1128. The court emphasized the fact that the proposed class included union
members, including “a substantial number” of workers who had voted in favor of the
collective bargaining agreement requiring fair-share fees. Id. at 1125. Because
members of the class were likely willing to financially support the union without
compulsion, the court held that the named plaintiffs did not fairly and adequately
represent their interests. Id. at 1128.

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In response, plaintiffs say that their private motives and thoughts on
unionization are irrelevant, because they do not affect the merits of the case. In
their view, liability turns on the lack of affirmative consent to the fair-share fees, so
they seek the same relief that absent class members are already entitled to. They
argue that any ideological conflict between themselves and absent class members
will only manifest itself in a split between those injured class members who want a
remedy for their injuries and those who do not, and that those who do not want a
remedy can simply opt out of the class. But as noted above, subjective support of the
union, or lack thereof, for each absent class member is central to this case, and not
just a factor in the decision to seek a remedy.
The Sixth Circuit’s concern about certifying a class with people who were not
damaged is less weighty here, in light of the Seventh Circuit’s repeated admonition
that class certification can be appropriate even when some class members
experienced no harm and do not have valid claims. See, e.g., Suchanek, 764 F.3d at
757–58. In addition, the “adequacy of class representatives is an issue that can be
examined throughout the litigation.” In re Sw. Airlines Voucher Litig., 799 F.3d 701,
715 (7th Cir. 2015). But in the end, both Schlaud and Gilpin point out that a class
representative who wants to undermine the union is not likely to be a suitable
representative for a group that includes people who have no such hostility. If Riffey
and Watts seek damages to weaken the union, they are not likely to faithfully
identify and inform class members who would want to opt out. This is a First
Amendment case in which subjective beliefs are critical to resolution of the

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remaining issues, yet plaintiffs seek to represent a class that includes many people
who would not want to associate with plaintiffs. The named plaintiffs are not
adequate representatives of such a class.7
C.

Rule 23(b)(3)

Because plaintiffs seek to certify the class pursuant to Rule 23(b)(3), they
must show that “the 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.” Fed R. Civ. P. 23(b)(3). “Predominance is satisfied when ‘common
questions represent a significant aspect of [a] case and . . . can be resolved for all
members of [a] class in a single adjudication.’” Costello v. BeavEx, Inc., 810 F.3d
1045, 1059 (7th Cir. 2016) (quoting Messner, 669 F.3d at 815). “Ultimately, the court
must decide whether classwide resolution would substantially advance the case.”
Suchanek, 764 F.3d at 761.
Damages—the primary reason plaintiffs seek class certification—cannot be
resolved in a single adjudication, and the damages questions for 80,000 potential

At this point, it is not necessary to address the adequacy of class counsel. See Fed. R. Civ.
P. 23(g)(4). Like the named plaintiffs, if class counsel want to advance an agenda to weaken
the union through class-wide damages, they would not adequately represent the interests of
class members who are current union members. But if a more limited, issue-based class
were certified, these concerns would be minimized. The attorneys—who have the skills and
resources to be class counsel—would be ethically bound to exercise their independent legal
judgment (not take direction from the National Right to Work Legal Defense Foundation)
and represent the interests of the class. Plaintiffs and their counsel may be adequate
representatives for a class that does not depend on the subjective beliefs of class members.
For example, whether the union can assert a good faith defense is a question that named
plaintiffs and their attorneys should be able to litigate without intra-class conflict. But, as
noted above, this prospect has not been briefed by the parties.
7

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class members would predominate over other questions. Predominance might not be
an issue if a class were certified solely to adjudicate the affirmative defense of good
faith before determining liability, but as currently conceived, plaintiffs’ pursuit of
class-wide refunds is the most significant issue remaining in the case. Now that
plaintiffs have prevailed on the central First Amendment question—whether fairshare fees can be deducted without consent—the predominant issue is the scope of
relief, and that is an individual, not a class, question.
In addition, plaintiffs’ proposed class presents significant manageability
issues. See Fed. R. Civ. P. 23(b)(3)(D). Personal assistants are in a profession with
high turnover. [106] ¶ 29. Obtaining evidence from each class member would be
difficult, see [106] ¶ 32 (reporting difficulty with phone numbers and addresses for
personal assistants), and plaintiffs propose no plan that would successfully
determine on a class-wide basis whether fair-share-fee-paying personal assistants
did not want to join or support the union. In light of my conclusion that subjective
beliefs about the fair-share fees are relevant, indeed paramount, to the availability
and amount of relief here, individual interests in controlling the First Amendment
claim would be significant. See Fed. R. Civ. P. 23(b)(3)(A). And there is no longer
any reason to concentrate each proposed class member’s claim for damages in a
single forum, see Fed. R. Civ. P. 23(b)(3)(C), because, armed with Harris, any
individual who did not want to join or support the union can pursue individual relief
(with the potential benefit of 42 U.S.C. § 1988 fee-shifting). Plaintiffs have not met

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their burden to demonstrate predominance and superiority for their proposed class
under Rule 23(b)(3).
IV.

Conclusion
Plaintiffs’ motion for class certification [80] is denied. The proposed class

definition is too broad because it contains a great number of people who could not
have been injured by defendants’ conduct. But even if injury can be presumed,
plaintiffs’ pursuit of refunds on behalf of a class requires individualized
determinations that predominate over the remaining common questions. This
denial is without prejudice to plaintiffs revising their proposed class definition or
seeking class certification on non-damages issues.

ENTER:
___________________________
Manish S. Shah
United States District Judge
Date: 6/7/16

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