Barnes et al v. Air Line Pilots Association, International

Filing 191

MEMORANDUM Opinion and Order Written by the Honorable Gary Feinerman on 9/30/2015.Mailed notice.(jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES BARNES, PHILLIP WHITEHEAD, WALTER
CLARK, DAVID BISHOP, and ERIC LISH,
individually and on behalf of all others similarly
situated,
Plaintiffs,
vs.
AIR LINE PILOTS ASSOCIATION,
INTERNANATIONAL,
Defendant.

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13 C 6243
Judge Feinerman

MEMORANDUM OPINION AND ORDER
United Airlines pilots James Barnes, Phillip Whitehead, Walter Clark, David Bishop, and
Eric Lish, on behalf of themselves and two putative subclasses of United pilots, the first
consisting of management pilots and the second of pilot instructors, brought this suit against Air
Line Pilots Association, International (“ALPA”), alleging that it unlawfully discriminated against
them in allocating $225 million of retroactive pay (“retro pay”) that United provided to its pilots
after ALPA and United entered into a collective bargaining agreement in late 2012. Doc. 29.
The amended complaint claims that ALPA breached its duty of fair representation (“DFR”) to
both subclasses under the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., and, in the
alternative as to the management pilots only, that ALPA unjustly enriched itself in violation of
Illinois law by accepting the management pilots’ payment of dues and contract maintenance fees.
Ibid. Earlier in the litigation, the court denied ALPA’s motion to dismiss and/or for summary
judgment, ruling that Plaintiffs were entitled to limited discovery on the question whether ALPA
discharged its duty of fair representation by providing a process for arbitrating disputes over how

1

the retro pay was allocated among United pilots. Docs. 83-84 (reported at 2014 WL 4057419
(N.D. Ill. Aug. 14, 2014)); see Air Wis. Pilots Protection Comm. v. Sanderson, 909 F.2d 213,
215-16 (7th Cir. 1990). Earlier today, the court granted ALPA judgment on the pleadings under
Federal Rule of Civil Procedure 12(c) as to the pilot instructors, holding that ALPA satisfied its
DFR as to those pilots, but allowed the management pilots’ claims to proceed. Docs. 188-189
(reported at 2015 WL ____ (N.D. Ill. Sept. 30, 2015)).
Now before the court is Plaintiffs’ motion for class certification under Rule 23. Doc. 47.
Because the claims brought by the individual pilot instructors (Bishop and Lish) have been
dismissed, the motion to certify a pilot instructor class is denied as moot. * For the following
reasons, class certification is granted to the management pilot class on both the DFR and unjust
enrichment claims.
Background
The relevant facts are set forth in the court’s Rule 12(c) opinion, familiarity with which is
assumed. To summarize, Barnes, Whitehead, and Clark, all of whom logged hours as

*

As explained at a recent status hearing, the court elected to resolve the Rule 12(c) motion
before the Rule 23 motion because, given the pilot instructors’ and management pilots’ adverse
interests—the pilot instructors’ preferred retro pay formula necessarily would have marginally
harmed the management pilots, and vice versa—class certification would have been denied on
the ground that the same counsel could not adequately represent both classes. See Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 627 (1997) (requiring “structural assurance of fair and
adequate representation for the diverse groups and individuals affected”). It therefore made
practical sense to first determine whether each pilot group had a viable claim. Cf. Comcast
Corp. v. Behrend, 133 S. Ct. 1426, 1432-33 (2013) (“By refusing to entertain arguments against
respondents’ damages model that bore on the propriety of class certification, simply because
those arguments would also be pertinent to the merits determination, the Court of Appeals ran
afoul of our precedents requiring precisely that inquiry.”); Amgen, Inc. v. Conn. Ret. Plans & Tr.
Funds, 133 S. Ct. 1184, 1195 (2013) (“Merits questions may be considered to the extent—but
only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for
class certification are satisfied.”). Neither side objected to the court taking up the motions in that
order.
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management pilots during the relevant time frame, complain about three features of ALPA’s
retro pay calculation: (1) offsetting their retroactive pay by the amount they received from
United in annual bonuses; (2) using the average number of pay credit hours flown by the
management pilot’s bid category, as opposed to their actual hours worked; and (3) excluding
certain credit hours from the calculation. Doc. 29 at ¶¶ 33-39; Doc. 96 at 3; Doc. 149-1 at 8. For
purposes of their DFR claim, they seek to represent a class of all United pilots who paid union
dues and/or contract maintenance fees to ALPA while working as a United management pilot at
any time from January 1, 2010 through December 18, 2012 (“Management Pilot DFR Class”).
Doc. 29 at ¶ 53. For purposes of their alternative unjust enrichment claim, they seek to represent
all United pilots who paid union dues and/or contract maintenance fees to ALPA while working
as a United management pilot (“Management Pilot Unjust Enrichment Class”). Ibid.
Discussion
A court’s analysis of class certification “is not free-form, but rather has been carefully
scripted by the Federal Rules of Civil Procedure.” Chi. Teachers Union, Local No. 1. v. Bd. of
Educ. of City of Chi, 797 F.3d 426, 433 (7th Cir. 2015). To be certified, a proposed class must
satisfy the four requirements of Rule 23(a): “(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 and 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); see Bell v. PNC Bank, Nat’l Ass’n, __ F.3d __, 2015 WL 5093052, at *910 (7th Cir. Aug. 31, 2015). If Rule 23(a) is satisfied, the proposed class must fall within one of
the three categories in Rule 23(b), which the Seventh Circuit has described as: “(1) a mandatory
class action (either because of the risk of incompatible standards for the party opposing the class

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or because of the risk that the class adjudication would, as a practical matter, either dispose of
the claims of non-parties or substantially impair their interests), (2) an action seeking final
injunctive or declaratory relief, or (3) a case in which the common questions predominate and
class treatment is superior.” Spano v. Boeing Co., 633 F.3d 574, 583 (7th Cir. 2011); see also
Bell, 2015 WL 5093052, at *10. Plaintiffs argue for certification under all three categories.
Doc. 47 at 11-15. Finally, the class must be “identifiable as a class,” meaning that the “class
definitions must be definite enough that the class can be ascertained.” Oshana v. Coca–Cola
Co., 472 F.3d 506, 513 (7th Cir. 2006) (citing All. to End Repression v. Rochford, 565 F.2d 975,
977 (7th Cir. 1977)); see also Mullins v. Direct Dig., LLC, 795 F.3d 654, 659-61 (7th Cir. 2015).
“Failure to meet any one of the requirements of Rule 23 precludes certification of a
class.” Harriston v. Chi. Tribune Co., 992 F.2d 697, 703 (7th Cir. 1993) (internal quotation
marks omitted).
The putative class representative bears the burden of showing that each requirement is
satisfied. See Chi. Teachers Union, 797 F.3d at 433; Messner v. NorthShore Univ. Healthsystem,
669 F.3d 802, 811 (7th Cir. 2012); Retired Chi. Police Ass’n v. City of Chicago, 7 F.3d 584, 596
(7th Cir. 1993). Although “as a general principle, a court is not allowed to engage in analysis of
the merits in order to determine whether a class action may be maintained[,] … the boundary
between a class determination and the merits may not always be easily discernible,” Retired Chi.
Police, 7 F.3d at 598-99 (internal quotation marks omitted), and “the class determination
generally involves considerations that are enmeshed in the factual and legal issues comprising
the plaintiff's cause of action.” Chi. Teachers Union, 797 F.3d at 435 (quoting Behrend, 133 S.
Ct. at 1432); see also Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011) (noting that
class certification analysis “[f]requently ... will entail some overlap with the merits of the

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plaintiff's underlying claim”) (quoting Gen. Tel. Co. v. Falcon, 457 U.S. 147, 160 (1982))
(internal quotation marks omitted). As the Seventh Circuit has explained, “a district court must
make whatever factual and legal inquiries are necessary to ensure that requirements for class
certification are satisfied before deciding whether a class should be certified, even if those
considerations overlap the merits of the case.” Am. Honda Motor Co. v. Allen, 600 F.3d 813,
815 (7th Cir. 2010) (citing Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir.
2001)); see also Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 889-90 & n.6 (7th
Cir. 2011). The Seventh Circuit has instructed district courts to exercise “caution” before
certifying a class. Thorogood v. Sears, Roebuck & Co., 547 F.3d 742, 746 (7th Cir. 2008). That
caution demands a close look at each of the Rule 23 requirements. The court will discuss each
requirement, though not in the order set forth in the Rule. See Jefferson v. Ingersoll Int’l, Inc.,
195 F.3d 894, 898 (7th Cir. 1999) (“A court should endeavor to select the most appropriate
subsection, not just the first linguistically applicable one in the list.”).
I.

Rule 23(a)
A.

Rule 23(a)(1): Numerosity

Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1). A plaintiff need not plead or prove the exact number of
class members to establish numerosity under Rule 23(a)(1), Marcial v. Coronet Ins. Co., 880
F.2d 954, 957 (7th Cir. 1987), and the court may make common sense assumptions to determine
numerosity. See Arreola v. Godinez, 546 F.3d 788, 797 (7th Cir. 2008) (finding numerosity after
the plaintiff had identified 14 class members and introduced evidence that “support[ed] a much
larger estimate”); Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978) (“[D]ifficulty in
determining the exact number of class members does not preclude class certification.”); William

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Rubenstein et al., Newberg on Class Actions §§ 3:13 (5th ed. 2015) (“Generally, a plaintiff must
show enough evidence of the class’s size to enable the court to make commonsense assumptions
regarding the number of putative class members.”). Still, “the party supporting the class cannot
rely on mere speculation or conclusory allegations as to the size of the putative class ...
for numerosity purposes.” Arreola, 546 F.3d at 797 (internal quotation marks omitted).
Although no magic number exists for satisfying the numerosity requirement, the Seventh Circuit
has held that “[e]ven if the class were limited to 40 [members] … that is a sufficiently large
group to satisfy Rule 23(a) where the individual members of the class are widely scattered and
their holdings are generally too small to warrant undertaking individual actions.” Swanson v.
Am. Consumer Indus., Inc., 415 F.2d 1326, 1333 n.9 (7th Cir. 1969); see also Stewart v.
Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001) (“No minimum number of plaintiffs is required to
maintain a suit as a class action, but generally if the named plaintiff demonstrates that the
potential number of plaintiffs exceeds 40, the first prong of Rule 23(a) has been met.”).
Plaintiffs contend that the putative management pilot class “comprises in excess of 120
members.” Doc. 29 at ¶ 55; see Doc. 47 at 7-8; Doc. 64 at 13-15. While not disputing this
figure, ALPA argues that Plaintiffs have not “satisf[ied] their burden of proving that the
proposed … [class] [is] so numerous that joinder is impractical.” Doc. 61 at 14. True enough,
even if the size of the proposed class satisfies Rule 23(a)(1), certification may be denied where
the class representative fails to “identif[y] a single potential class member” or “provide[]
sufficiently detailed testimony … to support the existence of a definitive, identifiable class.”
Arreola, 546 F.3d at 798. Those circumstances do not prevail here, as employment records
identify most (if not all) members of the class.

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B.

Rule 23(a)(4): Adequacy

The adequacy inquiry “consists of two parts: (1) the adequacy of the named plaintiffs as
representatives of the proposed class’s myriad members, with their differing and separate
interests, and (2) the adequacy of the proposed class counsel.” Gomez v. St. Vincent Health, Inc.,
649 F.3d 583, 592 (7th Cir. 2011). ALPA contends that Barnes, Clark and Whitehead are not
adequate representatives of the management pilot class for the DFR claim. Doc. 61 at 8. A
proposed class representative is inadequate if her interests are “antagonistic or conflicting” with
those of the other class representatives or the absent class members, Rosario v. Livaditis, 963
F.2d 1013, 1018 (7th Cir. 1992), or if she is subject to a defense not applicable to the class as a
whole, see CE Design Ltd. v. King Architectural Metals, Inc., 637 F.3d 721, 726 (7th Cir. 2011);
Randall v. Rolls–Royce Corp., 637 F.3d 818, 824 (7th Cir. 2011); Hardy v. City Optical Inc., 39
F.3d 765, 770 (7th Cir. 1994); Koos v. First Nat'l Bank of Peoria, 496 F.2d 1162, 1164-65 (7th
Cir. 1974). Likewise, “[a] person whose claim is idiosyncratic or possibly unique is an
unsuitable class member.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 758 (7th Cir. 2014).
ALPA contends that because Barnes “worked as a management pilot for only the first
eight months” of the relevant time period, “his interests are aligned with the line pilots and
antagonistic to management pilots, especially considering that any increase in the management
pilot allocation would reduce line pilots’ share.” Doc. 61 at 7. This contention fails to persuade.
Although the management pilots argue that a DFR-compliant retro pay allocation would have
resulted in their receiving a greater share and the line pilots receiving a lesser share of the $225
million, victory for the management pilots would result in ALPA paying them the difference
between what they were paid and what they should have been paid. See Int’l Bhd. of Elec.
Workers v. Foust, 442 U.S. 42, 49 (1979) (holding that DFR damages are designed to make the

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injured employee whole); Quinn v. DiGiulian, 739 F.2d 637, 646 (D.C. Cir. 1984) (“[T]he
breach of [the DFR] gives rise to liability for any damages that result.”). As ALPA admitted at a
hearing on August 19, 2014, because it has held back some of the $225 million in reserve to
satisfy any claims arising from legal challenges to the allocation, it would not claw back the
amounts already paid to the line pilots if the management pilots prevailed here. It follows that
Barnes’s service as both a line pilot and a management pilot does not render him an inadequate
representative of the management pilot DFR class. See Abbott v. Lockheed Martin Corp., 725
F.3d 803, 814 (7th Cir. 2013) (approving class certification and rejecting a challenge to adequacy
where no “investor who benefited from [the defendant’s] imprudent management would have her
[awarded] assets reduced as a result of this lawsuit”).
ALPA’s objections to Whitehead and Clark, both of whom worked as management pilots
for the entirety of the relevant period, Doc. 61-2 at ¶¶ 10, 12, submit that “their own parochial
interests,” based on their particular employment histories, are inextricably opposed and would
result in conflict over the proper allocation of the $225 million. Doc. 61 at 8. Specifically,
Clark, a “senior … manager who received no retro pay, wants senior managers included the retro
allocation (with no bonus offset), while Whitehead … actually would be harmed by the inclusion
of senior managers and [the] resulting reduction in the junior managers’ allocation.” Ibid. This
argument fails to persuade for the same reasons as ALPA’s objections to Barnes. It is possible
that in the context of clawbacks from those who received too much, conflict over the inclusion of
senior managers might make Whitehead’s and Clark’s interests inextricably opposed, and thus
render them inadequate representatives of a common class. As discussed above, however,
because victory for management pilots would result in ALPA’s disbursement of additional funds
to compensate them appropriately, the fact that a subgroup of management pilots may or may not

8

be included does not necessarily harm the other management pilots. See, e.g., Abbott, 725 F.3d
at 813 (“[T]his court has never held … that the mere possibility that a trivial level of intra-class
conflict may materialize as the litigation progresses forecloses class certification entirely.”);
Johnson v. Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 372 (7th Cir. 2012) (“It is
premature to declare the alleged conflicts of interest an insoluble bar to the class action.”); Kohen
v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 680 (7th Cir. 2009) (noting that “[a]t this stage in the
litigation, the existence of such conflicts is hypothetical,” that “[i]f and when they become real,
the district court can certify subclasses with separate representations of each,” and collecting
cases). In any event, if subsequent proceedings reveal that Whitehead and Clark suffer from
conflict that renders them inadequate, Barnes could carry on as the sole class representative.
C.

Rule 23(a)(3): Typicality

The Rule 23(a)(3) typicality requirement “directs the district court to focus on whether
the named representatives' claims have the same essential characteristics as the claims of the
class at large.” Retired Chi. Police, 7 F.3d at 597. A “plaintiff’s 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 his or her claims are based on the same legal theory.” De La Fuente v. Stokely-Van
Camp, Inc., 713 F.2d 225, 232 (7th Cir. 1983). “[T]ypicality under Rule 23(a)(3) should be
determined with reference to the company’s actions, not with respect to particularized defenses it
might have against certain class members.” CE Design, 637 F.3d at 725; see also Danvers
Motor Co. v. Ford Motor Co., 543 F.3d 141, 150 (3d Cir. 2008) (“Factual differences will not
defeat typicality if the named plaintiffs’ claims arise from the same event or course of conduct
that gives rise to the claims of the class members and are based on the same legal theory.”);
Rosario, 963 F.2d at 1018 (“[W]e look to the defendant’s conduct and the plaintiff’s legal theory

9

to satisfy Rule 23(a)(3).”). ALPA does not directly challenge typicality, and for good reason:
like all management pilots, Barnes, Clark, and Whitehead allegedly were deprived of their proper
share of the $225 million in retro pay allocated among all United pilots.
D.

Rule 23(a)(2): Commonality

“Commonality requires the plaintiff to demonstrate that the class members have suffered
the same injury” and that “[t]heir claims … depend upon a common contention … of such a
nature that it is capable of classwide resolution—which means that determination of its truth or
falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”
Dukes, 131 S. Ct. at 2551 (internal quotation marks omitted); see also Chi. Teachers Union, 797
F.3d at 434. “[F]or purposes of Rule 23(a)(2) even a single common question will do.” Dukes,
131 S. Ct. at 2556 (internal quotation marks and alterations omitted). “Rule 23(a)(2) does not
demand that every member of the class have an identical claim,” and some degree of factual
variation will not defeat commonality provided that common questions yielding common
answers can be identified. Spano, 633 F.3d at 585; see also Rosario, 963 F.2d at 1017-18. “In
this context, 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.” Chi. Teachers
Union, 797 F.3d at 434.
The commonality requirement is easily satisfied here. Each putative class member’s
claim presents a common question: whether ALPA breached its DFR to management pilots in
allocating the retro pay, or, in the alternative, whether ALPA unjustly enriched itself by
accepting dues and contract maintenance fees from management pilots even though it did not
represent them. Doc. 29 at ¶¶ 66-75. By contrast to the circumstances presented in Dukes, the
putative class members here were not affected by individual decisions made by different

10

decisionmakers. Instead, as to the DFR claim, each putative class member’s claim arises from a
single decision, ALPA’s retro pay allocation, and the answer to the question whether ALPA
violated its DFR will be the same for all putative class members. See Berger v. Xerox Corp. Ret.
Inc. Guarantee Plan, 338 F.3d 755, 763 (7th Cir. 2003) (“What is sought is a declaration that
Xerox’s method of computing the lump sums to which withdrawing employees are entitled is
unlawful. That is a ground common to all members of the class.”). As to the alternative unjust
enrichment claim, each putative class member’s claim arises from a single decision, ALPA’s
decision to accept dues and contract maintenance fees from pilots whom it did not represent, and
the answer to the question whether ALPA unjustly enriched itself will be the same for all
putative class members. See Chi. Teachers Union, 797 F.3d at 440 (“The plaintiffs have
demonstrated commonality by asserting that a uniform employment practice … used by the same
decision-making body … was discriminatory.”).
ALPA retorts that any claim related to its representation (or lack thereof) of the
management pilots necessarily raises the question whether the pilot relied on ALPA’s alleged
representation, and that “[a]nswering the question whether management pilots relied on or were
led to believe by ALPA that it was presenting them depends on an individualized inquiry into
each management pilot’s experience.” Doc. 61 at 10. As an initial matter, the presence of an
individual question does not defeat the existence of a common question. See Suchanek, 764 F.3d
at 759 (holding that “a supposed rule that individual issues necessarily predominate in cases
requiring individual subjective inquiries into causality … was an error of law”) (internal
quotation marks omitted); Pella Corp. v. Saltzman, 606 F.3d 391 393 (7th Cir. 2010) (holding
that “[t]he district court reasonably determined that the individual issues that necessarily arise in
a consumer fraud action would not prevent class treatment of the narrow liability issues” at issue

11

in the case). In any event, ALPA’s premise—that each putative class member must individually
prove reliance to demonstrate that ALPA represented her—is incorrect. “[C]ollective bargaining
is collective rather than individual.” C.P. Lesh Paper Co., 187 N.L.R.B. No. 142, at *1 n.2
(1970). If ALPA had an RLA-imposed duty to represent the management pilots as a class,
individual reliance on ALPA’s representations would not be necessary to allege a breach of the
DFR. See Suchanek, 764 F.3d at 759 (“Every consumer fraud case involves individual elements
of reliance or causation. … [A] rule requiring 100% commonality would eviscerate consumerfraud class actions.”); Pella Corp. v. Saltzman, 606 F.3d at 393 (“Proximate cause … is
necessarily an individual issue and the need for individual proof alone does not necessarily
preclude class certification.”).
Even assuming that individual reliance must be proved for each class member, and
(skipping ahead for a moment to Rule 23(b)(3)) even assuming that the reliance issue would
threaten to predominate, the court may certify a class under Rule 23(c)(4) to deal solely with
whether the allocation violated ALPA’s DFR to the management pilots. See Chi. Teachers
Union, 797 F.3d at 445 (“Rule 23(c)(4) permits the court to certify particular issues for
resolution as a class action.”); Butler v. Sears, Roebuck & Co., 727 F.3d 796, 800 (7th Cir.
2013); McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, 672 F.3d 482, 491 (7th Cir. 2012);
Kartman, 634 F.3d 883, 895 (7th Cir. 2011). The propriety of ALPA’s allocation of retro pay
“present[s] a[n] … issue[] that can most efficiently be determined on a class-wide basis,
consistent with” Rule 23(c)(4). McReynolds, 672 F.3d at 491.
II.

Rule 23(b)(3)
Although Plaintiffs contend that the putative class satisfies all three Rule 23(b)

categories, Doc. 47 at 11-15, it is necessary to discuss only Rule 23(b)(3), the most appropriate

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category for the claims in this case. See Jefferson, 195 F.3d at 898 (“When substantial damages
have been sought, the most appropriate approach is that of Rule 23(b)(3).”). A proposed class
satisfies Rule 23(b)(3) if “the questions of law or fact common to class members predominate
over any questions affecting only individual members, and … a class action is superior to other
available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P.
23(b)(3). Factors pertinent to predominance and superiority include: “(A) the class members’
interests in individually controlling the prosecution or defense of separate actions; (B) the extent
and nature of any litigation concerning the controversy already begun by or against class
members; (C) the desirability or undesirability of concentrating the litigation of the claims in the
particular forum; and (D) the likely difficulties in managing a class action.” Ibid.
A.

Predominance

“Analysis of predominance under Rule 23(b)(3) begins … with the elements of the
underlying cause of action.” Messner, 669 F.3d at 815 (quoting Erica P. John Fund, Inc. v.
Halliburton Co., 131 S. Ct. 2179, 2184 (2011)) (internal quotation marks omitted). “The Rule
23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to
warrant adjudication by representation.” Amchem Prods., 521 U.S. at 623. As the Supreme
Court has explained:
To gain class-action certification under Rule 23(b)(3), the named plaintiff
must demonstrate, and the District Court must find, that the questions of law
or fact common to class members predominate over any questions affecting
only individual members. This predominance requirement is meant to test
whether proposed classes are sufficiently cohesive to warrant adjudication by
representation, but it scarcely demands commonality as to all questions. In
particular, when adjudication of questions of liability common to the class will
achieve economies of time and expense, the predominance standard is
generally satisfied even if damages are not provable in the aggregate.
Behrend, 133 S. Ct. at 1436-37 (alterations, citations, and internal quotation marks
omitted).
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While similar to the Rule 23(a)(2) commonality requirement, the predominance
requirement is “far more demanding.” Amchem Prods., 521 U.S. at 624. Predominance is not
satisfied where liability determinations are individual and fact-intensive, see Kartman, 634 F.3d
at 891, and “[m]ere assertion by class counsel that common issues predominate[] is not enough,”
Parko v. Shell Oil Co., 739 F.3d 1083, 1085 (7th Cir. 2014) (alterations omitted). Predominance
also fails where “affirmative defenses will require a person by person evaluation of conduct to
determine whether [a defense] precludes individual recovery.” Clark v. Experian Info., Inc., 233
F.R.D. 508, 512 (N.D. Ill. 2005), aff’d, 256 F. App’x 818 (7th Cir. 2007); see also Myers v.
Hertz Corp., 624 F.3d 537, 551 (2d Cir. 2010) (“[W]hile it is well established that the existence
of a defense potentially implicating different class members differently does not necessarily
defeat class certification, it is equally well established that courts must consider potential
defenses in assessing the predominance requirement.”) (alterations and internal citations
omitted).
Predominance is satisfied here. As noted above in discussing commonality, the most
significant issues in this case—whether ALPA breached its DFR the management pilots in its
discretionary allocation of retro pay, or, in the alternative, whether ALPA’s collection of dues
and maintenance fees from management pilots constituted unjust enrichment—can be resolved
on a classwide basis, without any individual variation. See Keele v. Wexler, 149 F.3d 589, 595
(7th Cir. 1998). Most of ALPA’s arguments against predominance mirror its arguments against
commonality, Doc. 61 at 11-13, which are without merit for the reasons set forth above. ALPA’s
two other arguments against predominance also lack merit.
ALPA first contends that an “individualized, fact-specific inquiry” is necessary because
the putative class member worked for different lengths of time as management pilots during the

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relevant period. Doc. 61 at 12. But if ALPA ultimately is found to have violated the DFR, the
need to calculate damages for each putative class member under a DFR-compliant allocation
does not defeat predominance. See Butler, 727 F.3d at 801 (“It would drive a stake through the
heart of the class action device, in cases in which damages were sought rather than an injunction
or a declaratory judgment, to require that every member of the class have identical damages.”);
Messner, 669 F.3d at 819 (“[R]equir[ing] not only common evidence and methodology, but also
common results for members of the class … would come very close to requiring common proof
of damages for class members, which is not required.”); Keele, 149 F.3d at 593 (“The damages
recoverable for the class members’ injuries may differ … but the fact remains that their injuries
are the same.”). Indeed, “[i]t is routine in class actions to have a final phase in which
individualized proof must be submitted.” Chi. Teachers Union, 797 F.3d at 442 (internal
quotation marks omitted). Because “the [named] plaintiffs’ claims and those of the class they
would like to represent all derive from a single course of conduct by [the defendant],” Suchanek,
764 F.3d at 756, and because “adjudication of questions of liability … will achieve economies of
time and expense,” Chi. Teachers Union, 797 F.3d at 444, predominance is satisfied.
Second, ALPA contends that “courts routinely find that unjust enrichment claims do not
satisfy the predominance requirement.” Doc. 61 at 12. But the denial of certification of some
unjust enrichment claims does not mean that the claim in this case fails predominance. See
O’Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1391 (C.D. Ill. 1992) (describing
“the logical fallacy known as the Converse Accident (hasty generalization) … when a person
erroneously creates a general rule from observing too few cases”). The central question
presented by that claim, whether ALPA unjustly enriched itself by accepting dues and fees from

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the management pilots if it turns out that ALPA was not in fact representing them, easily
predominates over any conceivably individual issue pertinent to that claim.
B.

Superiority

The four Rule 23(b)(3) factors all support a finding of superiority. First, “the class
members’ interests in individually controlling the prosecution or defense of separate actions,”
Fed. R. Civ. P. 23(b)(3)(A), is minimal, as no management pilots have brought individual suits.
Doc. 64 at 12. Second, because no other cases involving the management pilots’ retro pay share
has been brought to the court’s attention, “the extent and nature of any litigation concerning the
controversy already begun by or against class members” is not a factor. Fed. R. Civ. P.
23(b)(3)(B). Third, “the desirability or undesirability of concentrating the litigation of the claims
in the particular forum” favors predominance, Fed. R. Civ. P. 23(b)(3)(C), as questions regarding
the allocation formula should be decided only once, lest inconsistent results arise, and the
Northern District of Illinois is as appropriate a forum as any given that ALPA “resides, maintains
offices, and does business in the district” and that “a substantial part of the events giving rise to
Plaintiffs’ claims arose in this district,” Doc. 29 at ¶ 11. Fourth, “the likely difficulties in
managing a class action” in this case are minimal given the predominance of common issues, the
readily available identity of all class members, and the relative ease of administering the claims
process. Fed. R. Civ. P. 23(b)(3)(D). Finally, “as part of a careful application of Rule 23(b)(3)’s
superiority standard, [the court] must recognize both the costs and benefits of the class device.”
Mullins, 795 F.3d at 663. Parallel litigation for each class member here would entail the same
discovery and require multiple courts to weigh the same factual and legal bases for recovery.
That would make no sense.

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ALPA submits that the possible individual recoveries in this case are so large that the
policy motivating class actions, which “is to overcome the problem that small recoveries do not
provide the incentive for any individual to bring a solo action prosecuting his or her rights,”
Amchem Prods., 521 U.S. at 617, would not be advanced by certification. Doc. 61 at 13-14. The
relatively substantial recovery awaiting many of the management pilots, standing alone, does not
defeat superiority. Indeed, “the text of Rule 23(b)(3) does not exclude from certification cases in
which individual damages run high.” Amchem Prods., 521 U.S. at 617. The case where the
Seventh Circuit reversed class certification due in part to the substantial individual awards for
class members, In re Rhone-Poulenc Rorer, Inc., 51 F.3d 1293 (7th Cir. 1995), is inapposite.
Rhone-Poulenc involved a mass tort in which persons with hemophilia sought class certification
in an action against manufacturers of blood solids, use of which, the plaintiffs claimed, had
infected them with HIV. Id. at 1294. The resultant multimillion dollar suits threatened to send
“a major segment of the international pharmaceutical industry … into Chapter 11.” Id. at 1300.
As the Seventh Circuit noted, one of its primary concerns with consolidating multiple claims was
“forcing the[] defendants to stake their companies on the outcome of a single jury trial, or be
forced by fear of the risk of bankruptcy to settle even if they have no legal liability.” Id. at 1299.
ALPA faces no such existential threat here. The lesson of Rhone-Poulenc, as the Seventh Circuit
later emphasized, is that “only a decentralized process of multiple trials, involving different
juries, and different standards of liability, in different jurisdictions” will yield the information
needed for accurate evaluation of mass tort claims.” In re Bridgestone/Firestone, Inc. Tire
Prods. Liability Litig., 288 F.3d 1012, 1020 (7th Cir. 2002) (quoting Rhone-Poulenc, 51 F.3d at
1299) (citation and internal quotation marks omitted). That lesson does not pertain here.

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III.

Definitiveness and Ascertainability
As noted above, a class definition “must be definite enough that the class can be

ascertained.” Oshana, 472 F.3d at 513; see also Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481,
495-97 (7th Cir. 2012); 7A Charles Alan Wright et al., Federal Practice and Procedure § 1760
(3d ed. 2005) (“[T]he requirement that there be a class will not be deemed satisfied unless the
class description is sufficiently definite so that it is administratively feasible for the court to
determine whether a particular individual is a member.”). “Class definitions have failed this
requirement when they were too vague or subjective, or when class membership was defined in
terms of success on the merits (so-called “fail-safe” classes).” Mullins, 795 F.3d at 657. ALPA
does not challenge ascertainability, and indeed it could not, because class membership is as
objective as it comes: all United pilots who, during any part of the period from January 1, 2010
through December 18, 2012, paid union dues and/or contract maintenance fees to ALPA while
working as a United management pilot, or, in the alternative, all United pilots who paid union
dues and/or contract maintenance fees to ALPA while working as a United management pilot.
Doc. 29 at ¶ 53. Given the Seventh Circuit’s disavowal of the heightened ascertainability
requirement adopted by some other circuits, see Mullins, 795 F.3d at 658, the alternative classes
here are easily ascertainable.
Conclusion
For the foregoing reasons, the court certifies alternative management pilot classes to
pursue the DFR and unjust enrichment claims against ALPA. “An order that certifies a class
action must define the class and the class claims, issues, or defenses, and must appoint class
counsel under Rule 23(g).” Fed. R. Civ. P. 23(c)(1)(B); see Chapman v. First Index, Inc., 796

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F.3d 783, 785 (7th Cir. 2015) (“[T]he obligation to define the class falls on the [district] judge’s
shoulders under” Rule 23(c)(1)(B).).
The class with regard to the DFR claim (“Management Pilot DFR Class”) is defined as
follows: “All United pilots who, during any part of the period from January 1, 2010 through
December 18, 2012, paid union dues and/or contract maintenance fees to ALPA while working
as a United management pilot.” The claim to be tried is whether ALPA breached its DFR to the
Management Pilots in its allocation of the $225 million of retro pay provided by United after
ALPA and United entered into the 2012 United Pilot Agreement. The subsidiary issues are: (1)
whether ALPA owed a DFR to the Management Pilots in its allocation of the retro pay; and, if
so, (2) whether ALPA’s allocation of the retro pay was arbitrary and/or discriminatory. The
class with regard to the alternative unjust enrichment claim (“Management Pilot Unjust
Enrichment Class”) is defined as follows: “All United pilots who paid union dues and/or contract
maintenance fees to ALPA while working as a United management pilot.” The claim to be tried
is, assuming that ALPA did not owe a DFR to the Unjust Enrichment Class, whether ALPA
unjustly enriched itself in receiving dues and maintenance fees from those pilots. Barnes, Clark,
and Whitehead are appointed as class representatives. Pursuant to Rule 23(g), Myron M. Cherry
and Jackie C. Volna of Myron M. Cherry & Associates, LLC, are appointed as class counsel.

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The parties shall confer regarding class notice and shall file a status report with their joint
proposal or competing proposals by October 14, 2015.

September 30, 2015

United States District Judge

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