Cochran et al v. Jefferson County Public Schools Board of Education et al

Filing 91

MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 9/18/2017. Plaintiffs' Motion for Class Certification and Appointment of Class Counsel (DN 57 ) is GRANTED. Counts II and III of this action shall be maintained as a plaintiff cl ass action. Attorneys Milton L. Chappell and Richard L. Masters are appointed as co-class counsel for Plaintiffs as they meet all of the requirements of Fed.R.Civ.P. Rule 23(g) for class counsel. Plaintiff's Motion for Oral Argument (DN 76 ) is DENIED. cc: Counsel(JWM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:15-CV-00751-GNS-CHL

CHERRI BECKHART et al.

PLAINTIFFS

v.

JEFFERSON COUNTY PUBLIC SCHOOLS
BOARD OF EDUCATION et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Motion to Certify Class and Appoint Class
Counsel (DN 57), and Plaintiffs’ Motion for Oral Argument (DN 76). The motions are ripe for
decision. For the reasons stated below, Plaintiffs’ Motion to Certify Class and Appoint Class
Counsel is GRANTED, and Plaintiffs’ Motion for Oral Argument is DENIED.
I.

STATEMENT OF FACTS AND CLAIMS

Effective June 25, 2012, the Jefferson County Board of Education and the Jefferson
County Association of Educational Support Personnel American Federation of State, County and
Municipal Employees on behalf of Local 4011 entered into a collective bargaining agreement
(“CBA”). (Verified Compl. Ex. A, DN 1-2). Under the CBA, Defendants American Federal of
State, County and Municipal Employees, AFL-CIO (“AFSCME”), AFSCME Indiana-Kentucky
Organizing Committee 962 (“Council 962”), and Jefferson County Association of Educational
Support Personnel, AFSCME, Local 4011 (“Local 4011”) can collect a “fair share fee” from
non-members employed in the Jefferson County Public Schools (“JCPS”). (Verified Compl. Ex.
A, at 7-8).

In 2014 and 2015, Council 962 provided written notice to all fair share fee payers as
required by the CBA. (Verified Compl. Exs. A-B, DN 1-3 to 1-4). On September 23, 2015,
Plaintiffs—who are fair-share-paying non-members of the union—filed this action on behalf of
themselves and others alleging the CBA and its enforcement are violations of their rights to free
speech and association protected by the First and Fourteenth Amendments which give rise to
claims under 42 U.S.C. § 1983. (Verified Compl. ¶¶ 72-92).
Plaintiffs have moved to certify a class of plaintiffs and for appointment of class counsel,
which Defendants emphatically oppose. (Pls.’ Mot. Class Certification & Appointment Class
Counsel, DN 57; Defs.’ Resp. Pls.’ Mot. Class Certification & Appointment Class Counsel, DN
69). Plaintiffs also request oral argument on the motion. (Pls.’ Mot. Oral Argument, DN 76).
II.

JURISDICTION

This Court has subject-matter jurisdiction of this matter based upon federal question
jurisdiction. See 28 U.S.C. § 1331.
III.
A.

DISCUSSION

Motion to Certify Class & for Appointment of Class Counsel

As outlined in the First Amended Complaint, Plaintiffs have defined the class as follows:
The class consists of all union nonmember employees who, at any time since
September 23, 2014 (and while this action is pending), are or were employed in
the Job Family 1A job classification and salary schedule for Jefferson County
Public Schools and are, were or will be required to pay a compulsory fee to
Defendants Local 4011, Council 962, and/or AFSCME pursuant to a compulsory
unionism agreement between the Unions and the Board.
(1st Am. Compl. ¶ 13). In determining whether to certify the proposed class, the Court must
consider whether Plaintiffs have satisfied the requirements of Fed. R. Civ. P. 23(a) and (b).

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1.

Fed. R. Civ. P. 23(a)

While this Court has broad discretion in certifying a class action, “it must exercise that
discretion within the framework of Rule 23.” Coleman v. Gen. Motors Acceptance Corp., 296
F.3d 443, 446 (6th Cir. 2002) (citing Cross v. Nat’l Tr. Life Ins. Co., 553 F.2d 1026, 1029 (6th
Cir. 1977)). In relevant part, Fed. R. Civ. P. 23(a) sets forth the prerequisites for certifying a
class and provides:
One or more members of a class may sue or be sued as representative parties on
behalf of all members only if:
(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.
Thus, as the moving party, Plaintiffs bear the burden of proof to “satisfy Rule 23(a)’s
requirements of numerosity, commonality, typicality, and adequacy of representation.” In re
Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996) (citations omitted); Coleman, 296 F.3d
at 446 (citing Fed. R. Civ. P. 23(a)).

This Court may not certify a class unless all four

requirements are met, and Plaintiffs “must demonstrate that the class fits under one of the three
subdivisions of Rule 23(b).” Coleman, 296 F.3d at 446.
a.

Numerosity

The numerosity requirement mandates that a class be “so numerous that joinder of all
members is impracticable . . . .” The Sixth Circuit has held that “[t]here is no strict numerical
test for determining impracticability of joinder.” Fed. R. Civ. P. 23(a)(1); In re Am. Med. Sys.,
Inc., 75 F.3d at 1079 (citation omitted).

Rather, “[t]he numerosity requirement requires

examination of the specific facts of each case and imposes no absolute limitations.” Gen. Tel.

3

Co. of Nw., Inc. v. EEOC, 446 U.S. 318, 330 (1980). The “sheer number of potential litigants in
a class, especially if it is more than several hundred, can be the only factor needed to satisfy Rule
23(a)(1).” Bacon v. Honda of Am. Mfg., Inc., 370 F.3d 565, 570 (6th Cir. 2004) (citation
omitted). The Court may also consider the following factors in determining numerosity:
(1) judicial economy arising from the avoidance of a multiplicity of actions; (2)
the geographic dispersion of class members; (3) the financial resources of class
members; (4) the ability of claimants to institute individual lawsuits; (5) the
amount of each member’s individual claim; (6) knowledge of the names and
existence of the potential class members; and (7) whether potential class members
have already joined other actions.
Powell v. Tosh, 280 F.R.D. 296, 303 (W.D. Ky. 2012) (internal quotation marks omitted)
(quoting Primavera Familienstiftung v. Askin, 178 F.R.D. 405, 410 (S.D.N.Y. 1998)).
In their motion, Plaintiffs estimate that the proposed class includes approximately 900
non-members, and Defendants have previously admitted that “the number of persons in the class
exceeds 700 persons for the 2014-15 and subsequent school years.” (Pls.’ Mem. Supp. Mot.
Class Certification & Appointment Class Counsel 9; Defs.’ Answer ¶ 14, DN 55). Thus, the
likely size of the proposed class would satisfy the numerosity requirement. See Bacon, 370 F.3d
at 570.
The geographical dispersion of the potential class members, however, weighs against
numerosity. All of JCPS employees likely live in the area. (Pls.’ Mem. Supp. Mot. Class
Certification & Appointment Class Counsel 10). Thus, the close proximity of the potential class
members would make joinder practical.
The financial resources factor weighs in favor of numerosity. As this Court has noted:
One of the basic reasons for promulgating Rule 23 was to provide small claimants
with a method of obtaining redress for claims which would otherwise be too small
to warrant individual litigation. Therefore, when the size of each claim is
significant, and each proposed class member therefore possesses the ability to

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assert an individual claim, the goal of obtaining redress can be accomplished
without the use of the class action device.
Powell, 280 F.R.D. at 304 (internal quotation marks omitted) (internal citation omitted) (quoting
Primavera Familienstiftung, 178 F.R.D. at 411). The record developed thus far reflects that the
“fair share” fees at issue per relevant fee year are as follows: $79 (September through December
2014); $239 (2015), and $212 (2016). (1st Am. Compl. Ex. D; Cochran Decl. ¶ 7, DN 57-2;
Diemer Decl. ¶ 7, DN 57-3; Shina Decl. ¶ 7, DN 57-4; Thomas Decl. ¶ 7, DN 57-5; Thomas
Decl. Ex. 1, 57-6). Due to the relatively small amount potentially owed to each class member, it
would likely be cost-prohibitive for each member to pursue the claims individually.
In addition, it would appear to be relatively straightforward to identify the names and
existence of the class members. This information should be readily available in Defendants’
records. Thus, this factor would weigh against finding that the numerosity requirement has been
met. See Powell, 280 F.R.D. at 304.
Finally, allowing these claims to proceed together as a class would be beneficial to
judicial economy. Having more than 700 separate lawsuits involving the same issues and facts
would be extremely inefficient, which supports allowing this matter to proceed with the proposed
class.
After considering all of the factors, the Court concludes that the class of putative
plaintiffs would meet the numerosity requirement of Fed. R. Civ. P. 23(a). While the proposed
class members are in close geographical proximity, the sheer number of potential class members
would make joinder impractical.
b.

Commonality

Plaintiffs must also satisfy the commonality requirement, which requires that “there [be]
questions of law or fact common to the class . . . .” Fed. R. Civ. P. 23(a)(2). In general, this
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requirement may be satisfied if there is a “single issue common to all members of the class.” In
re Am. Med. Sys., 75 F.3d at 1080 (internal quotation marks omitted) (citation omitted). As the
Supreme Court has stated, “[c]ommonality requires the plaintiff to demonstrate that the class
members ‘have suffered the same injury . . . .’” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
349-50 (2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). As this Court
has stated:
The claims of the class members must depend upon a common contention;
additionally, that common contention “must be of such a nature that it is capable
of class[-]wide 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.”
Powell, 280 F.R.D. at 305 (alteration in original) (quoting Dukes, 564 U.S. at 350).
In this case, Plaintiffs have framed the common issues of law as follows:
One common question is whether Defendants have seized since September 23,
2014, and will continue to seize, compulsory union fees from Nonmembers in the
absence of all of the constitutionally required Hudson notice and procedural
safeguards, where such safeguards: i) fail to include independent audit
verification of Council 962’s expenses in the Revised Notice covering the
Union’s 2014 and 2015 fee years; ii) disclose expenses in Section A of the
Revised and 2016 Notices as chargeable that clearly are not chargeable; iii) fail to
explain unambiguously AFSCME and Council 962’s allocation method used in
Section B of the Revised and 2016 Notices to determine which expenses were
chargeable when several expense categories within that section, as described, are
not chargeable to Nonmembers; iv) fail to describe at the beginning of the
Revised and 2016 Notices the allocation method used by Council 962 that was
consistent with the Union’s actual allocation of its expenses into chargeable and
nonchargeable categories; and v) used constitutionally overbroad and vague
descriptions in the Revised and 2016 Notices for some of the Unions’ chargeable
expenses. The second common question is whether AFSCME and Council 962
are charging Nonmembers for union activities not constitutionally chargeable to
them under the First and Fourteenth Amendments for their 2014, 2015, and 2016
fee years, and will continue to do so in subsequent fee years.
(Pls.’ Mem. Supp. Mot. Class Certification & Appointment Class Counsel 13-14). Plaintiffs
have stated the common issues of fact are:

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[Whether], at some period of time since September 23, 2014: (1) all are or were
union nonmembers; (2) all are or were employed as Job Family 1A employees for
JCPS; (3) all had and/or continue to have union monies seized from their wages;
(4) none of them received all of the constitutionally required minimum notice and
procedural safeguards from Defendants; and (5) all of them had compulsory union
monies seized from their wages for AFSCME’s and Council 962’s activities not
constitutionally chargeable to Nonmembers.
(Pls.’ Mem. Supp. Mot. Class Certification & Appointment Class Counsel 14).
The Court finds that the commonality requirement is met among the potential class
members. Each potential class member asserts he or she was employed by the JCPS, had and/or
will continue to have union fees deducted from his or her wages, and that Defendants failed to
comply with the constitutional requirements relating to the withholding of funds.
c.

Typicality

To certify a class under Fed. R. Civ. P. 23(a), a plaintiff must also prove that “the claims
or defenses of the representative parties are typical of the claims or defenses of the class . . . .”
Fed. R. Civ. P. 23(a)(3). “Typicality determines whether a sufficient relationship exists between
the injury to the named plaintiff and the conduct affecting the class, so that the court may
properly attribute a collective nature to the challenged conduct.” Sprague v. Gen. Motors Corp.,
133 F.3d 388, 399 (6th Cir. 1988) (internal quotation marks omitted) (quoting In re Am. Med.
Sys., 75 F.3d at 1082). “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 if his or her claims are based
on the same legal theory.’” Beattie v. CenturyTel, Inc., 511 F.3d 554, 561 (6th Cir. 2007)
(quoting In re Am. Med. Sys., 75 F.3d at 1082).
Here, typicality exists because all of the claims of the proposed class members are
virtually the same. These claims derive from the same fee deducted from each class member’s
paycheck during the relevant time period and involve the same notice provided by Defendants.

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d.

Adequacy of Representation

The final requirement is that Plaintiffs show that “the representative parties will fairly
and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). “Rule 23(a)(4) is
designed to fulfill the due process requirements of the members of the class because a final
judgment in a class action is binding on all members of the class.” George v. Baltimore City
Pub. Schs., 117 F.R.D. 368, 371 (D. Md. 1987) (citation omitted). “The adequacy criteria tend to
merge with the commonality and typicality requirements, although courts chiefly inquire whether
the named plaintiffs’ interests are antagonistic to those of the class, and whether class counsel are
competent.” Spann v. AOL Time Warner, Inc., 219 F.R.D. 307, 320 (S.D.N.Y. 2014) (citations
omitted). The Sixth Circuit has articulated two criteria to satisfy this requirement: “1) [t]he
representative must have common interests with unnamed members of the class, and 2) it must
appear that the representatives will vigorously prosecute the interests of the class through
qualified counsel.” Senter v. Gen. Motors Corp., 532 F.2d 511, 525 (6th Cir. 1976) (citation
omitted). See also Powell, 280 F.R.D. at 308 (citing Senter, 532 F.2d at 524-25).
Plaintiffs maintain that they have satisfied the common interests requisite because
“[t]hey, like the proposed class, are nonmembers in Defendant Unions.” (Pls.’ Mem. Supp. Mot.
Class Certification & Appointment Class Counsel 17 (citing Cochran Decl. ¶ 4; Diemer Decl. ¶
4; Shina Decl. ¶ 4; Thomas Decl. ¶ 4)). Plaintiffs also argue that they have been the victims of
the same wrongs as the proposed class: improper notices, improper withholding of fees, and
improper charging of fees to them. (Pls.’ Mem. Supp. Mot. Class Certification & Appointment
Class Counsel 17 (citing Cochran ¶¶ 7-8; Diemer Decl. ¶¶ 7-8; Shina Decl. ¶¶ 7-8; Thomas Decl.
¶¶ 7-8)).

8

Plaintiffs have also presented affidavits from the named Plaintiffs to support the position
that they will vigorously prosecute the interests of the class in this litigation. They met with
counsel before filing this lawsuit, provided information about the subject of this litigation, and
have interacted with counsel regarding this case. (Pls.’ Mem. Supp. Mot. Class Certification &
Appointment Class Counsel 18 (citing Cochran Decl. ¶¶ 5-12; Diemer Decl. ¶¶ 5-12; Shina Decl.
¶¶ 5-12; Thomas Decl. ¶¶ 5-12; Hartsfield Decl. ¶ 14, DN 57-9)).
In opposing the certification of the proposed class, Defendants have challenged whether
Plaintiffs can satisfy this requirement. (Defs.’ Resp. Pls.’ Mot. Class Certification 6-25). In
particular, Defendants assert: (i) “the class representatives have contractually agreed to a course
of conduct that would require them, in the event of settlement discussions, to place the
institutional interests of the organization that is funding the lawsuit ahead of the interests of the
class they seek to represent”; and (ii) “the [class] representative[s’] interests are antagonistic to
or in conflict with the objectives of those being represented.” (Defs.’ Resp. Pls.’ Mot. Class
Certification 7, 12 (internal quotation marks omitted) (first alteration in original)). Each of these
arguments is addressed separately.
i.

Institutional Conflict

Plaintiffs have requested the appointment of Attorneys Milton L. Chappell (“Attorney
Chappell”), an attorney employed by NRWLDF based in Springfield, Virginia, and Richard L.
Masters (“Attorney Masters”), a partner in the firm of Masters, Mullins & Arrington in
Louisville, Kentucky, as co-class counsel pursuant to Fed. R. Civ. P. 23(g).1 (Pls.’ Mem. Supp.

1

On May 8, 2017, Attorney Sarah E. Hartsfield, an attorney employed by NRWLDF, filed a
notice to withdraw her request to serve as class counsel and to withdraw as counsel in this
matter. (Pls.’ Notice Withdrawal Appearance & Request Appointment Class Counsel, DN 89;
Pls.’ Suppl. Notice Withdrawal Appearance & Request Appointment Class Counsel, DN 90).
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Mot. Class Certification & Appointment Class Counsel 26-31, DN 57-1). Defendants oppose the
appointment of any attorney employed by the National Right to Work Legal Defense Foundation
(“NRWLDF”) as class counsel because NRWLDF’s “objective in funding class-action lawsuits
like this one against public-sector unions is to defend the interests of taxpayers, by weakening
the ability of unions to improve employee compensation and benefits paid from public funds at
taxpayer expense.” (Defs.’ Resp. Pls.’ Mot. Class Certification 26 (citation omitted)).
“The court reviews the adequacy of class representation to determine whether class
counsel are qualified, experienced and generally able to conduct the litigation . . . .” Stout v. J.D.
Byrider, 228 F.3d 709, 717 (6th Cir. 2000) (citing In re Am. Med. Sys.., 75 F.3d at 1083).
“Courts have previously approved class counsel with experience in conducting class actions as
adequate.” In re Skechers Toning Shoe Prods. Liab. Litig., No. 3:11-MD-2308-TBR, 2012 WL
3312668, at *5 (W.D. Ky. Aug. 13, 2012) (citing Smith v. Ajax Magnethermic Corp., No. 4:02CV-0980, 2007 WL 3355080, at *4 (N.D. Ohio Nov. 7, 2007)). To determine whether the
proposed class counsel is qualified, the Court must consider Fed. R. Civ. P. 23(g), which
provides:
(1)
Appointing Class Counsel. Unless a statute provides otherwise, a court
that certifies a class must appoint class counsel. In appointing class counsel, the
court:
(A)
must consider:
(i)
the work counsel has done in identifying or investigating
potential claims in the action;
(ii)
counsel’s experience in handling class actions, other
complex litigation, and the types of claims asserted in the action;
(iii)
counsel’s knowledge of the applicable law; and
(iv)
the resources that counsel will commit to representing the
class;
(B)
may consider any other matter pertinent to counsel’s ability to
fairly and adequately represent the interests of the class;
Thus, in addressing this motion, the Court will only consider the qualifications of Attorneys
Chappell and Masters.
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(C)
may order potential class counsel to provide information on any
subject pertinent to the appointment and to propose terms for attorney’s
fees and nontaxable costs;
(D)
may include in the appointing order provisions about the award of
attorney’s fees or nontaxable costs under Rule 23(h); and
(E)
may make further orders in connection with the appointment.
(2)
Standard for Appointing Class Counsel. When one applicant seeks
appointment as class counsel, the court may appoint that applicant only if the
applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate
applicant seeks appointment, the court must appoint the applicant best able to
represent the interests of the class.
Fed. R. Civ. P. 23(g)(1)-(2).
In applying the considerations articulated in Fed. R. Civ. P. 23(g), the Court concludes
that Attorney Chappell and Attorney Masters have sufficient experience to be qualified to serve
as co-class counsel in this case. Attorney Chappell has been licensed to practice since 1976 and
has served as a staff attorney to the NRWLDF since 1977. (Chappell Aff. ¶¶ 3-4, DN 57-7). As
a practicing attorney, he has handled both individual and class-action lawsuits of similar subject
matter as the case sub judice. (Chappell Aff. ¶ 4).
Assuming arguendo that NRWLDF and its counsel were not qualified to serve as class
counsel, Attorney Masters would certainly be. Attorney Masters has been licensed to practice
law in the Commonwealth of Kentucky since 1979, and he has practiced with firm of Masters,
Mullins & Arrington since 1990. (Masters Aff. ¶¶ 3-4, DN 57-8). Masters has also previously
served in numerous other roles in public entities including as Assistant Attorney General for
Kentucky. (Masters Aff. ¶ 4). Attorney Masters’ practice areas have included the same subject
matters at issue in the present litigation. (Masters Aff. ¶ 4). Attorney Masters also has been
appointed to serve as class counsel in other state and federal cases. (Masters Aff. ¶ 5).
While Defendants impute any disqualification of NRWLDF counsel to Attorney Masters,
the Court rejects that contention. (Defs.’ Resp. Pls.’ Mot. Class Certification 31 n.15). Attorney

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Masters’ continued participation in this litigation—assuming arguendo that NRWLDF’s
attorneys are disqualified—does not mean that Attorney Masters will not fulfill his ethical
obligations to his clients rather than serve a particular cause of NRWLDF. Masters’ firm also
has sufficient resources for him to serve in that role without tapping the resources of NRWLDF.
(Masters Aff. ¶ 11).
Separate from the qualifications of the proposed counsel, Defendants’ challenge their
ability to serve based on NRWLDF’s representation of Plaintiffs. In serving in the capacity of
class counsel, attorneys “must fairly and adequately represent the interests of the class.” Fed. R.
Civ. P. 23(g)(4). NRWLDF’s involvement in these types of cases has been challenged in
numerous courts across the country with mixed results. It is apparent that part of Defendants’
main concern relates to the nature of NRWLDF—an organization whose “mission is to eliminate
coercive union power and compulsory unionism abuses through strategic litigation, public
information, and education programs.”

About, National Right to Work Legal Defense

Foundation, http://www.nrtw.org/about/ (last visited Sept. 15, 2017). As a sister court has noted,
however, NRWLDF “is a ‘bona fide, independent legal aid organization,’ which has successfully
sponsored class action litigation before the Supreme Court.” George, 117 F.R.D. at 371 (internal
citations omitted). Likewise, a sister court has noted the following in addressing a challenge to
NRWLDF serving as class counsel:
Defendants vociferously oppose certification of the named plaintiffs to act as
class representatives and their counsel to fairly protect the class interests.
Defendants’ concerns over the motivation of plaintiffs’ counsel or the National
Right to Work Foundation, while perhaps understandable, are irrelevant to
counsel’s prosecution of this case. As long as the Foundation has no affect on the
litigation of this matter, its doctrine and goals do not disqualify it from funding
plaintiffs’ assertion and protection of their First Amendment rights. Likewise,
plaintiffs’ counsel are bound by the same rules of procedure and conduct as are all
counsel in federal court actions. Counsels’ personal beliefs are irrelevant so long
as they do not result in conduct violative of the applicable court rules. Should any
12

party discover or suffer from any improper conduct, there are appropriate means
for challenging and, if necessary, sanctioning such activity.
Bromley v. Mich. Educ. Ass’n-NEA, 178 F.R.D. 148, 162 (E.D. Mich. 1998) (internal footnotes
omitted).
Defendants mainly rely on the Seventh Circuit’s decision in Gilpin v. American
Federation of State, County, and Municipal Employees, 875 F.2d 1310 (7th Cir. 1989), in
seeking to disqualify NRWLDF in this case. In Gilpin, NRWLDF filed suit on behalf of the
plaintiff-employees against their union “seeking repayment to all the bargaining unit’s nonunion
employees of the entire agency fees collected by the union” for a school year, plus interest and
punitive damages. Id. at 1313, 1316. After the trial court denied the certification of the
proposed class and the appointment of NRWLDF as class counsel, the plaintiffs appealed. The
Seventh Circuit affirmed that decision because it concluded that there was a serious conflict of
interest within the proposed class. See id. at 1313. As that court noted:
Two distinct types of employee will decline to join the union representing their
bargaining unit. The first is the employee who is hostile to unions on political or
ideological grounds. The second is the employee who is happy to be represented
by a union but won't pay any more for that representation than he is forced to.
The two types have potentially divergent aims. The first wants to weaken and if
possible destroy the union; the second, a free rider, wants merely to shift as much
of the cost of representation as possible to other workers, i.e., union members.
The “restitution” remedy sought by the [NRWLDF] . . . , which represents the
nine named plaintiffs, is consistent with—and only with—the aims of the first
type of employee.
Id. The court also held that NRWLDF was not adequate counsel because it was seeking punitive
damages on behalf of the class to financially punish the union while many of the class members
would only seek to recover actual fees paid. See id.
Unlike in Gilpin, Plaintiffs only seek to recover fees improperly paid to Defendants and
have not stated a claim for punitive damages.

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This important distinction renders Gilpin

inapposite. Since the Gilpin decision, other courts have held that NRWLDF’s attorneys could
adequately serve as class counsel. See Murray v. Local 2620, Dist. Council 67, Am. Fed’n of
State, Cty. & Mun. Emps., AFL-CIO, 192 F.R.D. 629, 635-36 (N.D. Cal. 2000); Cummings v.
Connell, No. CIVS992176WBS DAD, 1999 WL 1256772, at *5 (E.D. Cal. Dec. 20, 1999);
Bromley, 178 F.R.D. at 162.
Besides NRWLDF’s expressed anti-union mission, Defendants also criticize a disclosure
agreement executed by NRWLDF’s clients. When Plaintiffs retained NRWLDF to represent
them in this action, they signed the agreement, which contains the following salient provisions:
I understand that the Foundation’s legal aid program is financed by voluntary
contributions from the public and that it is essential to the Foundation’s program
for its other beneficiaries to be informed of the facts and developments of
Foundation-sponsored cases in order to ascertain and secure their rights. For
these reasons, I authorize the Foundation, should it provide me with legal
assistance, to inform its beneficiaries, potential beneficiaries, supporters, potential
supporters and the general public of the facts and developments of my case which
may be available from non-privileged sources. In addition, I agree that I will not
enter into a settlement agreement in my case which prevents or purports to
prevent the Foundation from disclosing the terms of the settlement agreement or
the facts and developments of my case which may be available from nonprivileged sources.
...
I fully understand that this agreement may cause my adversaries to refuse to settle
my case, and I freely accept that as a possible consequence of this agreement.
(Defs.’ Resp. Pls.’ Mot. Class Certification Exs., DN 69-10 to 69-15). Defendants also cite to
deposition testimony from Plaintiffs in which they acknowledge that the execution of the
agreement was a condition of representation. (Defs.’ Resp. Pls.’ Mot. Class Certification 8-9).
Defendants argue that the terms of the disclosure agreement improperly create a potential
conflict of interest between Plaintiffs and absent class members that renders Plaintiffs’ interests
“not ‘coextensive with those of the class’ they seek to represent,” and maintain that the necessity

14

of the Court approving any final settlement does not eliminate this issue. (Defs.’ Resp. Pls.’
Mot. Class Certification 10, 11 (citation omitted)).
In support of this argument, Defendants cite to In re Ocean Bank, No. 06 C 3515, 2007
WL 1063042 (N.D. Ill. Apr. 9, 2007). In that case, the retainer agreement “contracted away [the
class representative’s] ability to direct the case by requiring her ‘to follow the recommendation
of [her] attorney in connection with whether this case should be settled and the terms of such
settlement.’” Id. at *6 (citation omitted). Noting there are often potential conflicts of interest
between class counsel and class members, the court explained that “[a] class representative
cannot protect the class against the potential divergent interests of class counsel if he or she is
contractually obligated to follow counsel’s advice on settlement . . . .” Id. In stark contrast, the
disclosure agreement at issue here exclusively addresses the issue of confidentiality and does not
purport to otherwise empower class counsel to dictate the terms of settlement or condition any
settlement on class counsel’s approval. Thus, the Court concludes that In re Ocean Bank is
inapposite.
Likewise, Defendants’ reliance on Rodriguez v. West Publishing Corp., 563 F.3d 948
(9th Cir. 2009), and Radcliffe v. Experian Information Solutions Inc., 715 F.3d 1157 (9th Cir.
2013), is misplaced. Both of those cases involved incentive awards, and as the Radcliffe court
noted, “incentive awards [] corrupt the settlement by undermining the adequacy of the class
representatives and class counsel.” Radcliffe, 715 F.3d at 1164. In Rodriguez, the incentive
agreement was not disclosed at the class certification stage “when it should have been and where
it was plainly relevant” in determining adequacy. Rodriguez, 563 F.3d at 959. The present case,
however, does not involve an incentive agreement, which renders it distinguishable.

15

The Court finds the decision in George v. Baltimore City Public Schools to be more
analogous to the present case. In George, like the case sub judice, public school teachers sued to
stop the deduction of union representation fees from the wages of nonunion members. See
George, 117 F.R.D. at 369. NRWLDF also represented the plaintiffs in that case, and the
defendants raised a similar challenge to the disclosure agreement signed by the plaintiffs. In
rejecting arguments similar to Defendants’, that court stated:
Defendants also cite the [NRWLDF]’s . . . “Disclosure Agreement” to
demonstrate how this organization controls plaintiffs’ case. [The] writing [does
not] give[] the [NRWLDF] or its attorney unfettered control over plaintiffs’
litigation. The “Disclosure Agreement” insures that plaintiff will not forfeit in
settlement the right to disclose the case history and settlement terms. This enables
the [NRWLDF] to publicize its recent legal aid advances. [The] document [does
not] allow[] the [NRWLDF] to control plaintiffs’ case.
George, 117 F.R.D. at 371. This Court agrees with the George court’s conclusion that the
disclosure agreement does not improperly remove control from Plaintiffs and does not preclude a
finding of adequacy to certify the proposed class.2

2

Defendants’ argument regarding the disclosure agreement also seems illusory given the
applicability of the Kentucky Open Records Act (“Act”) to JCPS. The Act applies to any
“public agency,” which is defined to include “every . . . school district board . . . .” KRS
61.805(2)(c). It provides that “[a]ll public records shall be open for inspection by any person,
except as otherwise provided by KRS 61.870 to 61.884”, and “[a]ny person shall have the right
to inspect public records.” KRS 61.872(1), (2). As a sister court has explained, “[t]he public’s
‘right to know’ under the Open Records Act is premised upon the public’s right to expect its
agencies properly to execute their statutory functions.” Williams v. City of London, 252 F. Supp.
2d 388, 400 (E.D. Ky. 2003) (internal quotation marks omitted) (citation omitted). As the
Kentucky Supreme Court has noted, however, “[t]here could be no viable contention that an
agreement which represents the final settlement of a civil lawsuit whereby a governmental entity
pays public funds to compensate for an injury it inflicted is not a public record.” LexingtonFayette Urban Cty. Gov’t v. Lexington Herald-Leader Co., 941 S.W.2d 469, 471 (Ky. 1997).
See also Washington v. City of Georgetown, No. 08-402-KSF, 2009 WL 530782, at *5 (E.D. Ky.
Mar. 3, 2009) (discussing the lack of confidentiality applicable to settlement agreements with
governmental entities); Cent. Ky. News-Journal v. George, 306 S.W.3d 41, 46 (Ky. 2010)
(holding that confidential settlement agreements between a school board and certain employees
were not exempt from disclosure under the Act because “[the settlement agreements are
presumably public records subject to disclosure, regardless of their confidentiality provisions.”).
16

For these reasons, Attorney Chappell and Attorney Masters satisfy the requirements of
Fed. R. Civ. P. 23(g)(1)-(2) to be appointed co-class counsel in this case. Defendants have failed
to show that there is an institutional conflict that would preclude these attorneys—including one
employed by NRWLDF—from representing the proposed class members in this case.
ii.

Antagonistic Interests

Defendants also oppose certification of the class because they maintain that the class
representatives are inadequate to serve the interests of entire class. (Defs.’ Resp. Pls.’ Mot. Class
Certification 12). “[T]he existence of minor conflicts alone will not defeat a party’s claim to
class certification: the conflict must be a ‘fundamental’ one going to the specific issues in
controversy.” Valley Drug. Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1189 (8th Cir. 2003)
(citations omitted). In particular, Defendants assert that the seminal case on this issue is the
Supreme Court’s decision in Hansberry v. Lee, 311 U.S. 32 (1940), which they maintain
illustrates the type of intraclass conflict that precludes certification. (Defs.’ Resp. Pls.’ Mot.
Class Certification 12). Citing Hansberry, the Sixth Circuit has stated that “[i]t is well settled
that the constitutional requirements of due process and full faith and credit mandate that absent
class members are not bound by a judgment in a class action unless the class representative
provided adequate and fair representation.” Nathan v. Rowan, 651 F.2d 1223, 1227 (6th Cir.
1981) (citations omitted). As one treatise has cautioned:
Hansberry should not be read too broadly, however. The issue of adequacy of
representation in that case was raised as a means of collaterally attacking the class
judgment. Thus, once the court found that there were some class members
against the enforcement of the covenant, there was no way to avoid the
necessarily conflicting interests. In cases in which this sort of conflict is raised at
the outset of the action, the court need not dismiss the suit on grounds of
Accordingly, any settlement agreement in which JCPS contributed funds to the settlement would
involve the expenditure of public funds and would likely be subject to public disclosure under
the Act.
17

inadequate representation simply because all persons subject to a challenged
agreement or regulation do not agree with the named representative. The court
may use one of a wide assortment of curative mechanisms available in Rule 23 to
assure proper representation. As long as both those seeking to uphold and those
desiring to strike the particular regulations are adequately represented, the suit
may proceed as a class action.
7A Charles Alan Wright et al., Federal Practice & Procedure § 1768 (3d ed. 2017) (internal
footnotes omitted).
In this case, the injuries allegedly incurred by Plaintiffs are substantially the same as the
injuries of the proposed class members. The factual circumstances and the legal theories on
which Plaintiffs’ claims are based are also similar, if not identical.

Thus, Plaintiffs share

common interests with the members of the proposed class.
Plaintiffs argue that this case is about redressing violations of the class members’
constitutional rights, rather than weakening or destroying unions.

(Pls.’ Reply Mot. Class

Certification & Appointment Class Counsel 5, DN 75). Clearly, the parties are antagonistic to
each other, but the Court is not going to second-guess the class representatives’ stated motive.
Moreover, the relief sought by Plaintiffs appears tailored to redress harm caused by the alleged
improper notices rather than punish Defendants like in Gilpin.
For these reasons, the Plaintiffs’ views are not antagonistic to the proposed class and do
not preclude certification of the proposed class in this matter. Based on the claims asserted by
Plaintiffs and the facts outlined in the Complaint, Plaintiffs have satisfied the requirements for
class certification pursuant to Fed. R. Civ. P. 23(a).
2.

Fed. R. Civ. P. 23(b)

After determining that requirements of Fed. R. Civ. P. 23(a) have been met, the Court
must determine whether to certify the proposed class under Fed. R. Civ. P. 23(b). In particular,
Plaintiffs seek certification of the proposed class of plaintiffs under Fed. R. Civ. P. 23(b)(1), (2),
18

and (3). (Pls.’ Mem. Supp. Mot. Class Certification & Appointment Class Counsel 20-26). Each
of these subsections is addressed below.
a.

Fed. R. Civ. P. 23(b)(1)

Rule 23(b) provides that a court may permit a class action if:
(1)
prosecuting separate actions by or against individual class members would
create a risk of:
(A)
inconsistent or varying adjudications with respect to individual
class members that would establish incompatible standards of conduct for
the party opposing the class; or
(B)
adjudications with respect to individual class members that, as a
practical matter, would be dispositive of the interests of the other members
not parties to the individual adjudications or would substantially impair or
impede their ability to protect their interests . . . .
Fed. R. Civ. P. 23(b)(1). As the Advisory Committee has noted with regard to Fed. R. Civ. P.
23(b)(1):
The difficulties which would be likely to arise if resort were had to separate
actions by or against the individual members of the class here furnish the reasons
for, and the principal key to, the propriety and value of utilizing the class-action
device. The considerations stated under clauses (A) and (B) are comparable to
certain of the elements which define the persons whose joinder in an action is
desirable as stated in Rule 19(a), as amended.
Fed. R. Civ. P. 23 advisory committee’s note (citations omitted).
“For this subsection of Rule 23(b) to apply, the party opposing the prospective class
must be subject to the risk of inconsistent adjudications that would establish incompatible
standards of conduct.” Leer v. Wash. Educ. Ass’n, 172 F.R.D. 439, 451 (W.D. Wash. 1997)
(citing Winder Licensing, Inc. v. King Instrument Corp., 130 F.R.D. 392, 394 (N.D. Ill.1990)).
Given the number of separate lawsuits that could be filed if the proposed class were not certified,
there is serious risk that courts could impose different and inconsistent duties upon Defendants.
Sister courts have certified the proposed classes of nonunion members in similar challenges to
the sufficiency of the Hudson notice under Fed. R. Civ. P. 23(b)(1). See Murray, 192 F.R.D. at
19

636; Hohe v. Casey, 128 F.R.D. 68, 71 (M.D. Pa. 1989); Hunter v. City of Philadelphia, No.
CIV.A. 98-4598, 1999 WL 181388, at *3 (E.D. Pa. Jan. 29, 1999); Mitchell v. Los Angeles
Unified Sch. Dist., 744 F. Supp. 938, 944 (C.D. Cal. 1990), rev’d on other grounds, 963 F.2d 258
(9th Cir. 1992). Accordingly, the Court will certify the proposed class pursuant to Fed. R. Civ.
P. 23(b)(1).
b.

Fed. R. Civ. P. 23(b)(2)

Although it is unnecessary to certify the proposed class under more than one subsection
of Rule 23(b), the Court will consider Plaintiffs’ request for certification under Fed. R. Civ. P.
23(b)(2). Under that subsection, a class action may be maintained if, inter alia, “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 . . . .” Fed. R. Civ. P. 23(b)(2). As the Advisory Committee’s note reflects:
This subdivision is intended to reach situations where a party has taken action or
refused to take action with respect to a class, and final relief of an injunctive
nature or of a corresponding declaratory nature, settling the legality of the
behavior with respect to the class as a whole, is appropriate. Declaratory relief
“corresponds” to injunctive relief when as a practical matter it affords injunctive
relief or serves as a basis for later injunctive relief. The subdivision does not
extend to cases in which the appropriate final relief relates exclusively or
predominantly to money damages. Action or inaction is directed to a class within
the meaning of this subdivision even if it has taken effect or is threatened only as
to one or a few members of the class, provided it is based on grounds which have
general application to the class.
Fed. R. Civ. P. 23 advisory committee’s note (citation omitted).
The Court believes that the present dispute clearly falls under Fed. R. Civ. P. 23(b)(2).
While Plaintiffs do seek recovery of the fees paid under allegedly deficient Hudson notices, the
main thrust of this action is a determination of whether the notices provided by the JCPS
complied with Hudson. It is also noteworthy that sister courts have certified proposed classes

20

pursuant to Fed. R. Civ. P. 23(b)(2) in similar cases. See Murray, 192 F.R.D. at 636-37; Hohe,
128 F.R.D. at 71; Hunter, 1999 WL 181388, at *3; George, 117 F.R.D. at 372; Damiano v.
Matish, 644 F. Supp. 1058, 1059 (W.D. Mich. 1986), rev’d on other grounds, 830 F.2d 1363 (6th
Cir. 1987). Accordingly, the Court will certify the proposed class pursuant to Fed. R. Civ. P.
23(b)(2).
c.

Fed. R. Civ. P. 23(b)(3)

Lastly, Plaintiffs request certification under Fed. R. Civ. P. 23(b)(3), which is appropriate
in cases where “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). As the
advisory committee has noted:
In the situations to which this subdivision relates, class-action treatment is not as
clearly called for as in those described above, but it may nevertheless be
convenient and desirable depending upon the particular facts. Subdivision (b)(3)
encompasses those cases in which a class action would achieve economies of
time, effort, and expense, and promote uniformity of decision as to persons
similarly situated, without sacrificing procedural fairness or bringing about other
undesirable results.
Fed. R. Civ. P. 23 advisory committee’s note (citation omitted). The Sixth Circuit has explained
that Rule 23(b)(3) is best suited for certain types of cases:
In complex, mass, toxic tort accidents, where no one set of operative facts
establishes liability, no single proximate cause equally applies to each potential
class member and each defendant, and individual issues outnumber common
issues, the district court should properly question the appropriateness of a class
action for resolving the controversy. However, where the defendant’s liability
can be determined on a class-wide basis because the cause of the disaster is a
single course of conduct which is identical for each of the plaintiffs, a class action
may be the best suited vehicle to resolve such a controversy.
Sterling v. Velsicol Chem. Corp., 855 F.2d 1188, 1197 (6th Cir. 1998).

21

In light of advisory committee’s note and the Sterling decision, the Court believes that
the present case is not appropriate for certification under Fed. R. Civ. P. 23(b)(3). A basic set of
operative facts applies to all claims for the potential class members. Thus, the Court will not
certify the proposed class under Fed. R. Civ. P. 23(b)(3).
While the facts of this case lend themselves to certification under Fed. R. Civ. P. 23(b)(1)
and (2), this is not a mass-tort type of case where certification under Rule 23(b)(3) is appropriate.
Accordingly, the Court declines to certify the proposed class under Fed. R. Civ. P. 23(b)(3).
B.

Motion for Oral Argument

Plaintiffs have also moved for oral argument on their motion to certify. (Pls.’ Mot. Oral
Argument, DN 76). Because the Court finds that oral argument is unnecessary to address the
issues raised by the parties, the motion will be denied.
IV.

CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED as follows:
1.

Plaintiffs’ Motion for Class Certification and Appointment of Class Counsel (DN

57) is GRANTED, and Counts II and III of this action shall be maintained as a plaintiff class
action under Fed. R. Civ. P. 23(b)(1)(A) and 23(b)(2) by Plaintiff Class Representatives on
behalf of the class, defined as:
All union nonmember employees who, at any time since September 23, 2014,
(and while this action is pending), are or were employed in the Job Family 1A
classification and salary schedule for Jefferson County Public Schools and are,
were or will be required to pay a compulsory fee to Defendants Jefferson County
Association of Educational Support Personnel, American Federation of State,
County and Municipal Employees Local 4011 (“Local 4011”), American
Federation of State, County and Municipal Employees, Indiana-Kentucky
Organizing Committee 962 (“Council 962”), and/or American Federation of
State, County and Municipal Employees, AFL-CIO pursuant to a compulsory
unionism agreement between Local 4011, Council 962, Jefferson County Public
Schools Board of Education, and Donna M. Hargens, Superintendent.

22

Attorneys Milton L. Chappell and Richard L. Masters are appointed as co-class counsel for
Plaintiffs as they meet all of the requirements of Fed. R. Civ. P. Rule 23(g) for class counsel.
2.

Plaintiffs’ Motion for Oral Argument (DN 76) is DENIED.

Greg N. Stivers, Judge
United States District Court
September 18, 2017

cc:

counsel of record

23