MAINE ASSOCIATION OF RETIREES et al v. BOARD OF TRUSTEES OF THE MAINE PUBLIC EMPLOYEES RETIREMENT SYSTEM et al

Filing 43

ORDER ON MOTION FOR CLASS CERTIFICATION granting without objection 39 Motion to Certify Class By JUDGE GEORGE Z. SINGAL. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MAINE ASSOCIATION OF RETIREES,
et al.,

)
)
)
Plaintiffs,
)
) Docket no. 1:12-cv-59-GZS
v.
)
)
BOARD OF TRUSTEES OF THE MAINE )
PUBLIC EMPLOYEES RETIREMENT
)
SYSTEM,
)
)
Defendant.
)

ORDER ON MOTION FOR CLASS CERTIFICATION

Before the Court is the Unopposed Motion for Class Action Certification (ECF No. 39).
Having reviewed the Motion, along with the entire docket, the Court now GRANTS the Motion
for reasons briefly explained herein.
I.

LEGAL STANDARD
Federal Rule of Civil Procedure 23 sets forth the prerequisites for certifying any class.

Generally, Rule 23(a) requires any class to have (1) numerosity, (2) commonality, (3) typicality,
and (4) an adequate class representative. See Campbell v. First American Title Ins. Co., 269
F.R.D. 68, 70-71 (D. Me. 2010) (citing Smilow v. Southwestern Bell Mobile Sys., 323 F.3d 32,
38 (1st Cir. 2003)). In addition to these four requirements, the proposed class must satisfy at
least one of the subdivisions of Rule 23(b), which determines what type of class can be
maintained. To certify a class under Rule 23(b)(2), as Plaintiffs attempt here, the Court must
also find that Defendants have ‘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).
It is Plaintiffs’ burden to establish a basis for certification. As the Supreme Court has
instructed, “[a] party seeking class certification must affirmatively demonstrate his compliance
with the Rule – that is, he must be prepared to prove that there are in fact sufficiently numerous
parties, common questions of law or fact, etc.” Wal-Mart Stores, Inc. v. Dukes, --- U.S. ---, 131
S. Ct. 2541, 2551 (2011) (emphasis in original). Moreover, the Court must undertake “a rigorous
analysis” of the prerequisites established by Rule 23. Id.; see also Campbell, 269 F.R.D. at 71
(quoting Smilow, 323 F.3d at 38). Nonetheless, at the class certification stage any inquiry into
the merits is limited “to the extent that the merits overlap the Rule 23 criteria.” Campbell, 269
F.R.D. at 71 (quoting In re New Motor Vehicles Canadian Export Antitrust Litig., 522 F.3d at
24). However, “when a Rule 23 requirement relies on a novel or complex theory as to injury, ...
the district court must engage in a searching inquiry into the viability of that theory and the
existence of the facts necessary for that theory to succeed.” Id. (quoting In re New Motor
Vehicles Canadian Export Antitrust Litig., 522 F.3d at 26).
Although the rule contemplates that the district court must decide whether to certify any
case as a class action “[a]t an early practicable time,” Fed. R. Civ. P. 23(c)(1)(A), “[c]ourts may
alter certification orders prior to final judgment.” See Brown v. Colegio de Abogados, 613 F.3d
44, 46 (1st Cir. 2010) (citing Fed. R. Civ. P. 23(c)(1)(C)).

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II.

DISCUSSION
Plaintiffs propose to certify a class defined as:
All retired State of Maine employees and public school teachers whose final
termination of service occurred before June 20, 2011, and who had become
eligible to receive service retirement benefits from the Maine Public Employees
Retirement System no later than that date.

(Pls. Mot. for Class Certification at 2.) Pursuant to the First Amended Complaint (ECF No. 33),
Plaintiffs press claims for: (1) Violation of the Contracts Clause of the United States Constitution
(Count I); (2) Violation of the Fifth Amendment of the United States Constitution (Count II); and
(3) Violation of 42 U.S.C. § 1983 (Count III).1 Ultimately, Plaintiffs ask this Court to declare
various provisions of Maine law, as passed by the Maine Legislature in 2011, unconstitutional
and to order Defendants to make retroactive cost-of-living adjustments to their retirement
benefits. Plaintiffs also request statutory attorney’s fees.
The Court readily finds that Plaintiffs satisfy the requirements of Rule 23(a). First, there
is numerosity based on Plaintiffs’ uncontested assertion that the class consists of approximately
28,000 members—a number that makes joinder impracticable. Second, there is commonality
among the class members; each class member claims that Maine’s 2011 Amendment amounts to
a unconstitutional deprivation of the cost-of-living adjustments.

Third, the claims of the

representative parties are typical of the claims of all class members. The Motion proposes seven
class representatives: Sally Morrissey, Paul Lynch, Dorothy Davis, Catherine Richard, Robert
Ruhlin, Philip Gonyar and Timothy Culbert.

The Court is satisfied that these seven

representatives are not only typical but also adequate. In short, their interests will not conflict

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The Court has not included in its list of class claims the two similarly worded claims under the Contracts Clause
and Takings Clause of the Maine Constitution, which are listed in the Plaintiff-Intervenor’s Complaint (ECF No.
36). If Plaintiffs intend to press these claims as class claims, they shall amend the First Amended Complaint to
make clear that all plaintiffs are pressing these claims.

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with the interests of other class members. Additionally, the Court is satisfied that the counsel
selected by Plaintiffs is “qualified, experienced and generally able to conduct the proposed
litigation.” Fed. R. Civ. P. 23(a)(4); see also Pls. Ex. A (ECF No. 39-1).
Turning to the requirements of Rule 23(b)(2), the Court is satisfied that Defendants have
acted on grounds that apply generally to the class, so the final injunctive relief or corresponding
declaratory relief will be the most appropriate remedy for the class if the class establishes
liability on any of its common claims. Based on the parties’ representation that any monetary
relief associated with a judgment for the class would require only a “mechanical, objective
calculation of benefits according to the pre-L.D. 1043 statutory formula,” the Court currently
sees no impediment to certifying the class under Rule 23(b)(2). (Pls. Mot. (ECF No. 39) at 10
n.3.)
In accordance with Rule 23(g) and absent any objection, the Court hereby appoints
Attorneys James Kilbreth and George Royle of Drummond, Woodsum & MacMahon as well as
Attorneys Jeffrey Young and Carol Garvan of McTeague Higbee, Case, Cohen, Whitney &
Toker, P.A. to act as class counsel. In making this appointment, the Court has given due
consideration to all of the factors listed in Rule 23(g)(1).
III.

CONCLUSION
For reasons just explained, the Court GRANTS WITHOUT OBJECTION Plaintiffs’

Motion for Class Action Certification (ECF No. 39).

This case shall proceed with Sally

Morrissey, Paul Lynch, Dorothy Davis, Catherine Richard, Robert Ruhlin, Philip Gonyar and
Timothy Culbert acting as class representatives for the following class:
All retired State of Maine employees and public school teachers whose final
termination of service occurred before June 20, 2011, and who had become
eligible to receive service retirement benefits from the Maine Public Employees
Retirement System no later than that date.

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Attorneys James Kilbreth and George Royle of Drummond, Woodsum & MacMahon as
well as Attorneys Jeffrey Young and Carol Garvan of McTeague Higbee, Case, Cohen, Whitney
& Toker, P.A. are hereby appointed as class counsel. On or before January 25, 2013, each class
counsel shall indicate whether he or she intends to simultaneously represent any of the three
organizational plaintiffs, which remain listed on the docket but are not members of the class, in
addition to fulfilling their duties as class counsel.

Given the number of attorneys being

appointed as class counsel, the Court expects that counsel will be diligent in coordinating their
work so as to avoid unnecessary duplication of efforts. See Fed. R. Civ. P. 23(g)(1)(C)&(D).
Under Rule 23(c)(2)(A), the Court need not immediately direct notice to class members
in this case. However, on or before January 25, 2013, class counsel shall file a proposal for
appropriate notice to the class in this action with said proposal indicating both a method and time
for notifying the class of this action.
SO ORDERED.
/s/ George Z. Singal
United States District Judge

Dated this 20th day of November, 2012.

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