The Ladies Night Case and the Rules for Class Action Lawsuits:

In my last post, I considered the constitutional flaws in attorney Roy Hollender’s suit claiming that ladies nights at night clubs are unconstitutional sex discrimination. In this one, I explain why his proposed lawsuit also violates the rules governing class actions. According to the National Law Journal, Hollender is “seeking to be named class representative for all men charged more money or burdened by stricter time restraints than women at [four New York night] clubs over the last three years.”

A class action is a law suit where one “named plaintiff” represents the interests of other individuals who are not directly involved in the case, but have suffered from the same allegedly illegal behavior that the plaintiff is seeking to prevent or rectify. Under the Federal Rules of Civil Procedure, a class can only be certified by a district court if it meets the standards set out in FRCP Rule 23. In this case, the crucial requirement is Rule 23(A)(4), which requires the court to ensure that the class representative “will fairly and adequately protect the interests of the class.”

Hollender clearly fails to meet this requirement because many of the members of the class in question (“men charged more money or burdened by stricter time restraints than women” at the night clubs in question) actually benefit from these practices. At the risk of belaboring the obvious, a key purpose of ladies nights at night clubs is to benefit (heterosexual) men. Many night clubs and bars become relatively unappealing to men because the male-female ratio is too high, reducing male patrons’ chances of picking up a date. By attracting more women, ladies’ nights improve the dating odds for male patrons. To be sure, there are men such as Hollender who decry ladies nights as invidious discrimination. But many of the men belonging to the class specified in Hollender’s suit probably prefer a night club with ladies night that increases the percentage of female customers to a nondiscriminatory policy that results in a more unbalanced male-female ratio. Many, perhaps the vast majority, of the men in the class Hollender proposes to represent have interests diametrically opposed to the result he seeks to achieve. For that reason, the district court should refuse to certify his proposed class.

Hollender says that “[w]hether this case succeeds or fails, it will result in a much needed victory for men.” True enough (except maybe for the “much needed” part). If he wins, men who agree with him will get a “victory,” but those who benefit from ladies nights will be harmed. If he loses, the male beneficiaries of ladies nights will have reason to celebrate. Since there are male night club customers with interests on both sides of the suit, Hollender should not be certified as an acceptable representative of this class.

UPDATE: I have corrected a minor but annoying typo in the first sentence of the post.