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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.

Related Posts (on one page):

  1. The Ladies Night Case and the Rules for Class Action Lawsuits:
  2. Ladies' Night and the 14th Amendment:
  3. Are "Ladies' Nights" Discriminatory?
marghlar:
Well, that's certainly true. On the other hand, he could easily replead this as all men as defined, who are also aggrieved by the practice. It would be a much smaller class, but probably still satisfy numerosity, right?
7.15.2007 12:33am
Ilya Somin:
On the other hand, he could easily replead this as all men as defined, who are also aggrieved by the practice. It would be a much smaller class, but probably still satisfy numerosity, right?

It's not clear whether it would satisfy numerosity. Remember that he would have to find men who 1) were charged higher prices at these particular night clubs on ladies night, and 2) opposed the practice. It's not enough to just have random men out there who dislike the practice but didn't actually go to the night clubs in question.

A large enough number of such men might be hard to find. Moreover, he would have to present proof of their opposition, which might be dificult to gather.
7.15.2007 12:39am
anonVCfan:
According to his profile, he's probably at least 50 years old.

I'll refrain from being too snarky, but for me that puts this case in a slightly different light.
7.15.2007 1:01am
anonVCfan:
....maybe it affects the typicality requirement.
7.15.2007 1:02am
Dave Hardy (mail) (www):
According to his profile, he's probably at least 50 years old.

I'll refrain from being too snarky, but for me that puts this case in a slightly different light.


The bankruptcy judge here, who was in his 60s, "got lucky" pretty often. Of course, he didn't worry about Ladies' Nights improving the odds, either.
7.15.2007 1:27am
JB:
If men chose not to go rather than go and pay higher prices, they should qualify, no? Their enjoyment of the bars was curtailed by this action.

I mean, that's no stupider than the lawsuit.
7.15.2007 1:32am
Libertarian1 (mail):
How would you feel if the law suit were about Ladies Day at the ball park? I don't think men are benefited in any way.
7.15.2007 1:45am
Oren (mail):

A large enough number of such men [complainers] might be hard to find. Moreover, he would have to present proof of their opposition, which might be dificult to gather.


And now we are down to the empirical question at the bottom of this entire mess: do most men agree with Hollender or Ilya? There's no sense certifying him class action if he wont' be able to find anybody to join his class.
7.15.2007 1:45am
marghlar:
It's not clear whether it would satisfy numerosity. Remember that he would have to find men who 1) were charged higher prices at these particular night clubs on ladies night, and 2) opposed the practice.

I'm pretty sure if he sent a paralegal around to query men at nightclubs whether this bugged them, and if he kept at it long enough, he could get more than 40 unique guys who satisfy those rules, and they could then certify that fact to the court. (I did say it would be a lot fewer -- I just bet there are easily 40 of them.)

None of this is to say that his lawsuit isn't frivolous and absurd; I'm just not sure that the class certification problem is his biggest hurtle. A 12-b-6 (hopefully coupled with a rule 11 sanction) seems a better vehicle for getting rid of this jerk.
7.15.2007 1:49am
Shelby (mail):
the rules government class actions

From context, this presumably should read "governing class actions"? At first I wondered how the government fit in...

As a plaintiff-side class action practitioner (with no background in discrimination law and no interest in actually researching the issue), I'm not sure how the court would treat an argument that places the putative class's interests in equal treatment and in saving money below the one of increasing the female-to-male ratio on particular nights.

Additionally, what percentage of the men affected actually were there for the primary purpose of seeking available women? How many were there to drink, or socialize generally, or seek available men? I ask this as a straight man with no particular aversion to going to bars to meet women, but who has never done so.
7.15.2007 2:11am
Ilya Somin:
As a plaintiff-side class action practitioner (with no background in discrimination law and no interest in actually researching the issue), I'm not sure how the court would treat an argument that places the putative class's interests in equal treatment and in saving money below the one of increasing the female-to-male ratio on particular nights.

That's not the argument I'm making. My point is that at least SOME of the members of the class place their interest in the male-female ratio above those two other interests. To the extent that SOME do, Hollender could not be certified as the representative for the entire class (including those whose interests are adverse to his). Whether this priority holds true, on average, for the class as a whole is legally irrelevant.
7.15.2007 2:16am
ReaderY:
As the Supreme Court pointed out in Atlanta Motel, discrimination legislation is in its essence morals legislation, no different from laws against lotteries or prostitution.

Accordingly, men get freed from the moral evil of differential sexual treatment, and the corresponding emotional distress this moral evil causes.

Society has the right to declare discrimination a moral evil and permit people who experience it to sue even if they don't experience easily quantitifiable economic damages. As long as everybody understands this is what is being done, one may disagree but I see no constitutional problem
7.15.2007 2:31am
Ilya Somin:
Society has the right to declare discrimination a moral evil and permit people who experience it to sue even if they don't experience easily quantitifiable economic damages. As long as everybody understands this is what is being done, one may disagree but I see no constitutional problem

The post doesn't deny any of this. It merely holds that, in this case, the class the plaintiff wants can't be certified because to do so would violate the Federal Rules of Civil Procedure.
7.15.2007 2:56am
Peter B. Nordberg (mail) (www):
I offer no comment on the merits of this suit, legal or otherwise. I do seriously question the claim that Rule 23(a)(4)'s adequacy requirement poses any major barrier to class certification, let alone an insuperable one. To defeat adequacy, it is not enough that some members of the class may "benefit" in some sense from the challenged conduct. Nor is it enough that some class members may be of the opinion that the suit should not have been brought. And this certainly does not appear to be a case in which any class members have a legally protected interest with which the class representative's interests are antagonistic.

There is another difficulty, however, which seems more acute. Apparently Mr. Hollander seeks to serve both as a class representative and as counsel. One function of class reps is to serve as an independent check on class counsel, to help ensure that litigation strategy is guided by the best interests of the class (as opposed, e.g, to counsel's distinct interest in generating a fee). That check is substantially diluted if class rep and counsel are one and the same, and courts have therefore frowned on the practice. There is also a potential ethical issue, to the extent counsel would be a witness in the case (as class reps commonly are).

Query, meanwhile, why this would be brought as a class action at all? One might suspect mercenary motives, but apparently the requested relief is primarily injunctive and declaratory; only nominal damages are sought.
7.15.2007 3:56am
Peter B. Nordberg (mail) (www):
Minor amendment: The two-hat problem could be seen as an adequacy issue. But it is not the adequacy issue raised in the post.
7.15.2007 3:57am
eddy:
Would Hollender properly represent either classes of male homosexuals, or non-prowling happily married heterosexuals who wouldn't benefit from more women?

Should a heterosexual woman suing over lower country club membership fees for men be precluded from class representation because she allegedly benefits from the environment of a larger pool of eligible men?
7.15.2007 5:38am
Greedy Clerk (mail):
Ilya, as I don't believe you have ever litigated and your clerkship experience was on an appellate court, I don't begrudge you that you don't know this, but it is very, very, very routine for the definition of a class to evolve from the complaint stage to the class certification stage. If the guy is allowed discovery on class certification (I have no idea about the merits of his case and whether he could get past the pleadings and, moreover, whether federal judges in NY generally get discovery going despite pending motions to dismiss), it is certain that the definition of the class would change to address the problem you identify.
7.15.2007 6:01am
Greedy Clerk (mail):
I agree with Mr. Nordberg. It moreover seems that Ilya is just playing a clever "gotcha" with the pleadings, something that is simply not the way federal litigation works and has not worked for the last eighty years or so. You are not wedded to an overbroad class definition set out in the operative pleadings. Ilya may not like that rule, but it's been the rule for a long, long time.
7.15.2007 6:04am
Mark Bahner (www):
"As the Supreme Court pointed out in Atlanta Motel, discrimination legislation is in its essence morals legislation, no different from laws against lotteries or prostitution."

"As long as everybody understands this is what is being done, one may disagree but I see no constitutional problem."

How about that the Heart of Atlanta ruling was completely bogus, and in no way supported by the 14th amendment or the interstate commerce clause? Wouldn't that be a constitutional problem?
7.15.2007 9:53am
Oren (mail):

To the extent that SOME do, Hollender could not be certified as the representative for the entire class (including those whose interests are adverse to his). Whether this priority holds true, on average, for the class as a whole is legally irrelevant.


Playing semantics with the definition of the class does not change anything. He wants to represent a class of men, like him, that demand equal treatment and do not believe that these policies benefit them. He should be allowed to proceed to discovery as to the fact of whether such a class exists or not - that is the empirical question.
7.15.2007 11:50am
Just Dropping By (mail):
Mr. Nordberg is correct in his analysis. The "two-hat problem" (which courts normally do evaluate under Rule 23(a)(4)'s adequacy prong) is a much higher obstacle to class certification (it's almost a per se bar) than the question of whether some class members think they benefit from the alleged bad conduct. In almost every class action case there will be some, possibly many, class members who will have benefitted from the defendant's conduct or otherwise would disfavor having a class action brought. However, unless the goal pursued by the class representative is deemed highly antagonistic to the absent class members' interests, that won't stop a court from certifying the class. With all due respect, Prof. Somin is thinking like a law professor in his post, not a practitioner.

To address marghlar's suggestion on limiting the class definition to to men who have been aggrieved by the practice, that won't work because of the "ascertainability" problem. An the members of the class must be sufficiently ascertainable for purposes of notice and award of damages. Class definitions which are based on mental/emotional reactions are typically considered too vague. Unless bars kept records of which men protested to them about ladies' nights, there would be no way of determining membership in a class of men aggrieved by the practice.
7.15.2007 12:49pm
Oren (mail):

. . . members of the class must be sufficiently ascertainable for purposes of notice and award of damages. Class definitions which are based on mental/emotional reactions are typically considered too vague. Unless bars kept records of which men protested to them about ladies' nights, there would be no way of determining membership in a class of men aggrieved by the practice.


If he could get a few hundred men that would sign an affidavit certifying that they:

(1) Were denied equal treatment by said establishment
(2) Protested said denial of equal treatment
(3) Can produce eyewitnesses wrt (1) and (2)
(4) Believe that such discrimination is contrary to their interests in equal treatment by said establishment, fancy economic arguments about mating odds notwithstanding.

My gut feeling is that he would not be able to round up more than a dozen or so and that class action would fail for lack of numerosity. Nevertheless, he's entitled to give it a try.

The burden is on the plaintiff to substantiate his claim that there is a large class of aggrieved parties - let him try to meet that burden.
7.15.2007 2:07pm
Dave Hardy (mail) (www):
How about that the Heart of Atlanta ruling was completely bogus, and in no way supported by the 14th amendment or the interstate commerce clause?

In law school, as I recall, Heart of Atlanta was depicted as a highly imaginative use of the commerce clause, maybe even a bit of a fishy one.

But having driven thru rural virginia, and seen a few painted over "Colored hotel" signs, I suspect it was very much a solid commerce clause case. That was before my time, but I suspect blacks actually did find it quite difficult to move in interstate commerce, having to hunt up special motels, special restaurants, etc. (the one I saw may have been the only one between Richmond and DC) -- that, at the very least, the burden was enough to move it clearly within Congressional powers. We're not talking aggregation, incidental effects, that manner of thing -- it was a genuine burden on interstate movement.

Actually, it wasn't quite before my time. I remember as a child coming up to a highway cafe here in Tucson that had a sign out "we do not welcome the colored trade." Dad turned around and said he guessed they didn't welcome our trade, either. (During WWII, he conducted the first sit in on a segregated bus. Sorry, Rosa Parks, you had to find out sometime). He sat in the back and refused to move, and in the end the driver gave up threatening him with arrest and went on driving).
7.15.2007 3:06pm
Ilya is wrong (mail):
The post doesn't deny any of this. It merely holds that, in this case, the class the plaintiff wants can't be certified because to do so would violate the Federal Rules of Civil Procedure.

Violates? It's a rule of federal procedure, and those rules are meant to guide judicial discretion. They are bent all the time. In any event, there is no reason why those who want to increase the male-female ratio shouldn't have to use gender-neutral means to acheive the same effect. I am sure that men who pay more to get into Ladies' Nights would prefer an equivalent male-female ratio without the price discrimination. After all, the way to stop discriminating on the basis of sex is to stop discriminating on the basis of sex.
7.15.2007 3:22pm
Peter B. Nordberg (mail) (www):
I don't want to overstay my welcome, but there persists a seeming misunderstanding, in some of the comments, of the adequacy requirement, and/or of the class certification inquiry more generally. That inquiry is largely discretionary and context-dependent, and so there may exist some specific situations in which intra-class dissension would legitimately represent one ground (perhaps among several) to deny class certification. In general, however, the analysis does not proceed by asking how class members would vote on the lawsuit, or by polling some sample of them to see how many of them feel "aggrieved." (Indeed, discovery of putative class members is normally disfavored.) Such a mode of inquiry would seem especially misplaced in a discrimination suit.

The confusion may arise, in part, from Rule 23(a)(4)'s use of the word "interest," to which some may be assigning a broader meaning than it generally carries in the case law. Sometimes there is also a cognitive temptation to turn each element of Rule 23 into a microcosm of the whole rule. Certain arguments against certifiability in this case might find more comfortable logical habitats in other elements of Rule 23. Adequacy of representation is not the only requirement that the rule imposes.

In that vein, one last thought. If damages were the only or primary relief sought, the class would probably be certifiable only under Rule 23(b)(3), which would entitle class members who didn't want to be part of the proceedings, or to be bound by the results, to opt out. Insofar as the primary relief requested here is injunctive and declaratory, however, the likely vehicle for certification would be Rule 23(b)(2). Rule 23(b)(2) doesn't provide for opting out, but that's partly because Rule 23(b)(2) is available in the first place only if "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declarative relief with respect to the class as a whole." Some of the arguments against certification that have been raised in this space might be relevant to that question (although again, it's not normally a condition for (b)(2) certification in a discrimination suit that the discriminatees be united in their desire to end the unlawful discrimination -- from which some discriminatees may even think they benefit in some way).

My apologies to Mr. Hollender for misspelling his name before.
7.15.2007 4:20pm
EIDE_Interface (mail):
Ladies night never hurt anyone, why can't a club owner run his club like he sees fit. What happened to freedom in America, god-dangit.
7.15.2007 4:22pm
scote (mail):

They are bent all the time. In any event, there is no reason why those who want to increase the male-female ratio shouldn't have to use gender-neutral means to acheive the same effect. I am sure that men who pay more to get into Ladies' Nights would prefer an equivalent male-female ratio without the price discrimination.

This brings up an important but subtle aspect of the Ladies' Night discrimination practiced by bars and nightclubs. The Ladies' Night discounts are are not meant to increase the number of women at a club they are meant to increase the ratio of women to men. If the club just wanted more women they could give a discount to everyone. That would increase the number of women. However, they want to actively decrease the number of men by charging them more to affect the ratio.

Ladies night never hurt anyone, why can't a club owner run his club like he sees fit. What happened to freedom in America, god-dangit.

All business are regulated by Federal, State and local laws. This tired mantra that business are "private" and can be run however they want is false and has always been false.

You can argue that busniness should be able to discriminate against men in any and all cases(unconvincingly, I think) but you can't argue that business are allowed to act however they please and are thus allowed to discriminate against men (and by extension, any other protected class).
7.15.2007 5:11pm
Oren (mail):

Ladies night never hurt anyone, why can't a club owner run his club like he sees fit. What happened to freedom in America, god-dangit.


Freedom to discriminate or freedom to use public accommodation without being discriminated against, you may only have one.
7.15.2007 5:32pm
John Herbison (mail):

"[T]he Heart of Atlanta ruling was completely bogus, and in no way supported by the 14th amendment or the interstate commerce clause[.]"

While I am loath to feed a troll, can anyone seriously contend that segregation by merchants and innkeepers did not affect interstate commerce? The only factor that I can think of that has had as great an impact on the economy of the Southern states as desegregation is perhaps the invention of air conditioning.
7.15.2007 5:41pm
Mark Bahner (www):
"In law school, as I recall, Heart of Atlanta was depicted as a highly imaginative use of the commerce clause, maybe even a bit of a fishy one."

I don't consider "highly immaginative" to be a good description of when Supreme Court judges ignore the Constitution in favor of their notions about how society should be. (Even if I share their notions of how society should be.) This sort of "highly imaginative" ruling essentially dispenses with the rule of law, and replaces it with rule by men (or women, or transgenders).

The sort of ruling that was made in the Heart of Atlanta case merely leads to even more "highly immaginative" ignoring of the rule of law, such as the PGA vs Casey Martin case.

"But having driven thru rural virginia, and seen a few painted over "Colored hotel" signs, I suspect it was very much a solid commerce clause case. That was before my time, but I suspect blacks actually did find it quite difficult to move in interstate commerce, having to hunt up special motels, special restaurants, etc."

But the interstate commerce clause wasn't meant to address private actions that may (or may not, especially in the case of a hotel in downtown Atlanta) affect interstate commerce. It was meant to address impediments on interstate commerce by state governments during the Articles of Confederation era.

Actually, it wasn't quite before my time. I remember as a child coming up to a highway cafe here in Tucson that had a sign out "we do not welcome the colored trade." Dad turned around and said he guessed they didn't welcome our trade, either. (During WWII, he conducted the first sit in on a segregated bus. Sorry, Rosa Parks, you had to find out sometime). He sat in the back and refused to move, and in the end the driver gave up threatening him with arrest and went on driving).

It's men like your father and the brave young black men here in North Carolina who simply refused to back down from a request to be served who make possible to fight fundamental injustices in a legal way. (As opposed to the illegal method of Supreme Court judges essentially writing their own laws.)

If there are men who are offended by nightclubs and bars that charge women less then men, let those offended men find nightclubs and bars that don't charge women less than men. Or if they can't find any such nightclubs or bars, let them buy/build/run their own nightclubs and bars.

It's not necessary to pretend that a state government is engaging in restrictions on interstate commerce, or engaging in violations of the 14th amendment, merely because the state governments don't step in between private nightclub and bar owners and their patrons.
7.15.2007 5:58pm
Mark Bahner (www):
"...can anyone seriously contend that segregation by merchants and innkeepers did not affect interstate commerce?"

You are confusing segregation with discrimination. They are not the same thing, at all. Segregation is when state governments LEGISLATE forced separation. That can quite properly viewed as a violation of the 14th amendment (and in some cases an infrigement on interstate commerce).

As I just commented, the power of the federal government under the Constitution to regulate (make regular) interstate commerce was fundamentally an attempt to prevent STATE government impediments to interstate commerce. Gibbons vs Ogden is a good example:

Gibbons vs Ogden (1824)

"The only factor that I can think of that has had as great an impact on the economy of the Southern states as desegregation..."

Again, the Heart of Atlanta case, and the Ladies Night case, are not "segregation." They have nothing to do with the State governments stepping in and requiring nightclub and bar owners to charge women less money. They are descrimination cases, wherein private nightclub and bar owners think that they'll do more business--or more profitable business--by charging women less.

They may be wrong. They may even be bad people. But they are doing nothing that warrants the federal government stepping in...under our Constitution as currently written. And neither are the state governments in which they are located doing something that warrants the federal government stepping in.

Now, if you or anyone else thinks a Constitutional amendment is needed, fine. That's what the amendment process is for. (I don't think you'd get such an amendment on this particular issue, because I don't you'd get the votes in Congress or in state legislatures to support such an amendment.)
7.15.2007 6:19pm
Peter B. Nordberg (mail) (www):
"If there are men who are offended by nightclubs and bars that charge women less than men, let those offended men find nightclubs and bars that don't charge women less than men. Or if they can't find any such nightclubs or bars, let them buy/build/run their own nightclubs and bars."

Substitute "blacks" for "men" and "whites" for "women" throughout, and this begins to have a decidedly familiar ring.

But I don't believe it's contended, in any event, even by Mr. Hollender, that Mr. Hollender's claim is actionable because the discriminatory pricing offends some people's sensibilities. Obviously the lawsuit itself offends some people's sensibilities. But I think what Mr. Hollender contends is that his claims are actionable because Mr. Hollender is charged more.
7.15.2007 6:24pm
TruePath (mail) (www):
Two quick questions

1) What are the interests that the law recognizes as valid reasons for rejecting class certification because members of the class have interests in conflict with the representative? In particular what makes it the case that potential reduced ability to hook up with a hot girl doesn't qualify.

2) Does anyone have any guesses as to WHY class certification is being pursued here at all?

---
Well I for one think that the laws preventing private parties from discriminating, including companies, eventually need to be phased out. These laws were needed only because the problem of discrimination was so bad and pervasive that it was a hugely serious problem. After all this is why the discrimination laws pick out certain classes for protection and not others.

Now it would be absurd to believe that discrimination no longer affects anyone or only has negligible harms now but that is a far cry from saying that it is necessary to retain specific laws governing the way private actors must behave on the issue. In particular the pressure of public opinion and threats of boycotts will likely be just as effective in keeping stores from adopting discriminatory policies while things like making members of an ethnic group feel unwelcome at the small community store are very difficult to curtail with the current law.

So yah, I'm willing to take the plunge and say we ought to abolish the laws about private store discrimination.
7.15.2007 6:31pm
Ilya Somin:
You are not wedded to an overbroad class definition set out in the operative pleadings. Ilya may not like that rule, but it's been the rule for a long, long time.

I don't deny that. However, narrowing the definition would make it much harder (perhaps impossible) for Hollender to identify the relevant members and get a large enough number to satisfy the "numerosity" requirements.
7.15.2007 6:40pm
Greedy Clerk (mail):
As opposed to the illegal method of Supreme Court judges essentially writing their own laws.

Wow, what an absurdly false, or perhaps ignorant, statement -- in the cases referred to, the Supreem Court was not "writing their own laws," they were upholding the constitutionality of a duly enacted statutes passed by both Houses of Congress and signed by the President of the United States, who take the same oath as members of the Supreme Court take. I'll say it once, and I say it again: some "conservatives" really do live in fanatasy land (another example is saying, as if it is obvious, that a hotel in downtown Atlanta does not affect interstate commerce -- really!?!!!).
7.15.2007 6:41pm
marghlar:
To address marghlar's suggestion on limiting the class definition to to men who have been aggrieved by the practice, that won't work because of the "ascertainability" problem. An the members of the class must be sufficiently ascertainable for purposes of notice and award of damages.

Care to cite some case law for that one, JDB? Specifically, I wonder how much that is true for an action seeking only injunctive relief, as here. You don't need to track the class members down to hand anything out, so how ascertainable do they actually have to be? I also seem to remember cases involving classes of the homeless; it would certainly be hard to ascertain them in a manner sufficient for notice, but they could get certified nonetheless, right? Especially, it seems to me, in a 23b2 suit.

Maybe I'm off the mark here, but it seems like being able to define the class so as to be able to reach them seems more of an issue in a damages action.
7.15.2007 7:09pm
Libertarian1 (mail):



Greedy Clerk wrote:
Wow, what an absurdly false, or perhaps ignorant, statement -- in the cases referred to, the Supreem Court was not "writing their own laws," they were upholding the constitutionality of a duly enacted statutes passed by both Houses of Congress and signed by the President of the United States, who take the same oath as members of the Supreme Court take.


I ask this as a non attorney. Does your definition above include Brown, Miranda, Roe vs Wade, Lawrence, Mapp v Ohio, Reynolds v Sims etc? Were there duly enacted statutes passed by both Houses of Congress and signed by the President? If not why can't their actions be called "writing their own laws"?
7.15.2007 8:11pm
John Noble (mail):
It strikes me that shareholder class actions often present a significant threat of serious aggregate harm to the corporation and to the invidividual class-member's long-term investment, which likely outweighs the dubious benefit of the class-member's de minimus share of damages recoverd in a class action -- even before taking into account the award of attorneys' fees, which is wholly detrimental to the investor.
7.15.2007 8:13pm
doubting thomas (mail):
This is a two-sided markets problem. Assume that the club believes it is catering to a heterosexual clientele, and that it makes money by serving as a type of clearinghouse for intergender introductions. The club (like an auctionhouse) has two distinct types of customers: men and women (think of them as buyers and sellers and the club is the broker). The trick for clubs is getting the right ratio. Too many men, and it's a cockfest and the club will fail. Same problem with too many women. This creates a chicken and egg problem. Men won't attend if not enough women and vice versa. Men and women, however, apparently have different price elasticities for club attendance. Therefore, clubs think that in order to get the profit-maximizing balance of men and women the have to price differently for men and women. Ladies night is just a kind of pricing technique to achieve the profit-maximizing male-female balance. The club thinks it can't get enough women to attend unless it has low prices for them, and if the women don't attend, then the men won't and the business will fail. I don't think civil rights law (or antitrust law, frankly) really knows how to address the problems posed by two-sided markets.
7.15.2007 9:13pm
Mark Bahner (www):
"Substitute "blacks" for "men" and "whites" for "women" throughout, and this begins to have a decidedly familiar ring."

It should! They're both discrimination. Not serving blacks is discrimination. Charging women less than men is discrimination, too.

Now, substitute "senior citizens" for women, and you've got another case of blatant discrimination. Giving senior citizens discounts for movies, restaurants, museums, etc. is blatantly discriminatory.

Student discounts (e.g. to movie theaters, for software, and elsewhere) are also blatantly discriminatory.

The difference in ALL those cases is that people here accept some forms of discrimination as OK, and don't accept others as OK. And SOME people here think that the federal government is authorized to make everything OK. Well, that's complete BS.

There's nothing in the 14th amendment that in any way limits private citizens' RIGHT (under the 9th amendment) to discriminate against or for others.

And I challenge anyone here to provide historical evidence that the men who actually WROTE the interstate commerce clause ever intended Congress to be able to tell a hotel (or inn/tavern) owner whom he or she may or may not serve, or what he or she may or may not charge their customers.

No one here will be able to do so. But SOME people here don't care, because SOME people apparently think the Constitution should be changed without amendment. And SOME people here call people who disagree with that opinion a "troll"...or perhaps worse, a "conservative." ;-)
7.15.2007 9:19pm
Mark Bahner (www):
"Wow, what an absurdly false, or perhaps ignorant, statement -- in the cases referred to, the Supreem Court was not "writing their own laws," they were upholding the constitutionality of a duly enacted statutes passed by both Houses of Congress and signed by the President of the United States,..."

PGA versus Casey Martin was the Supreme Court merely upholding the law? And you accuse ***me*** of making an "absurdly false, or perhaps ignorant" statement?

"...who take the same oath as members of the Supreme Court take."

So I guess G.W. Bush, Richard Nixon, FDR, and so on, never violated their oaths of office?

"...that a hotel in downtown Atlanta does not affect interstate commerce -- really!?!!!)."

The Constitution does NOT address "interstate commerce." It gives Congress the power to regulate commerce "among the several states." Specifically, it says,

"The Congress shall have Power ...To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes."

And no, a transaction between a customer and an owner of a hotel in downtown Atlanta is ***not*** "commerce among the several states." (Neither is it commerce with foreign Nations or Indian Tribes, in case you thought those were possibly appropriate.)
7.15.2007 9:43pm
Mark Bahner (www):
"But I don't believe it's contended, in any event, even by Mr. Hollender, that Mr. Hollender's claim is actionable because the discriminatory pricing offends some people's sensibilities. Obviously the lawsuit itself offends some people's sensibilities. But I think what Mr. Hollender contends is that his claims are actionable because Mr. Hollender is charged more."

So...it is actionable for people who are not senior citizens to sue movie theaters and restaurants for price discrimination?

It's actionable for people who don't receive Microsoft and other software producers' discounts for students and professors to sue for price discrimination?

Under WHAT LAW? Again, there is nothing in the 14th amendment that authorizes the federal government to step into transactions between owners of private businesses and customers. And there's nothing in the history of the Constitutional Convention that leads to even the slightest idea that the Founding Fathers--who actually wrote the #@*^ (fine) thing--ever intended the Constitution's "interstate commerce" clause to apply here.
7.15.2007 9:51pm
Peter B. Nordberg (mail) (www):
I didn't say anything should or should not be actionable. I said only that if something is actionable in this case, it would be discriminatory pricing by gender -- my point being that the matter is trivialized unfairly if it's portrayed merely as a question of someone's having gotten "offended." Personally, I happen to think price discrimination based on race, ethnicity, gender, or religious belief is different in kind from age-based pricing structures, but that's just my opinion; I could be wrong. I also happen to think it's a stretch to bring this claim under the 14th amendment, because state action would seem lacking. Whether there's a basis for some other legal claim, I can't say.
7.15.2007 10:53pm
Mark Bahner (www):
"I didn't say anything should or should not be actionable. I said only that if something is actionable in this case, it would be discriminatory pricing by gender -- my point being that the matter is trivialized unfairly if it's portrayed merely as a question of someone's having gotten 'offended.'"

Well, it *is* trivial, in the sense that a very large number of the male customers, if not even a *majority* of the male customers, probably support the discrimination in this case.
So the plaintiff's "class" basically consists of easily offended men, without much sense of proportion in their lives.

"Personally, I happen to think price discrimination based on race, ethnicity, gender, or religious belief is different in kind from age-based pricing structures, but that's just my opinion; I could be wrong."

Different in kind? Why? What law would apply to race, ethnicity, gender, or religious belief that wouldn't apply to age-based price discrimination?

"I also happen to think it's a stretch to bring this claim under the 14th amendment, because state action would seem lacking."

Yes, exactly like the Heart of Atlanta case.

"Whether there's a basis for some other legal claim, I can't say."

Well, if it's not the 14th amendment, what other part of the Constitution would authorize the federal government to get involved? The interstate commerce clause, which Supreme Court judges seem to use as desired to justify essentially infinite federal power, seems to be the only other possibility.

Despite what Dubyah might think, it's hard to see how this could be a national defense issue. ;-)
7.15.2007 11:45pm
Oren (mail):

Well, it *is* trivial, in the sense that a very large number of the male customers, if not even a *majority* of the male customers, probably support the discrimination in this case.


Objection #1 - assumes facts not in evidence.

Objection #2 - irrelevant: the consent or even outright support by the discriminated-against does not weigh in favor of the change.
7.16.2007 12:34am
Learn to read (mail):
This brings up an important but subtle aspect of the Ladies' Night discrimination practiced by bars and nightclubs. The Ladies' Night discounts are are not meant to increase the number of women at a club they are meant to increase the ratio of women to men. If the club just wanted more women they could give a discount to everyone. That would increase the number of women. However, they want to actively decrease the number of men by charging them more to affect the ratio.

A. The above does not mean that:
1. Price discrimination is the only available means.
2. No gender-neutral means will work to increase the male-female ratio.

B. The clubs need not want to discourage men from showing up through price discrimination, because:
1. Clubs have capacity.
2. Ladies' Nights often offer the discount during a certain time period.

Assume a capacity of 300 and that 250 men and 250 women will show on a given night. If all the women show up first, the male:female ratio will be 5:1. The point need not be to deter men from showing, but simply to put women at the front of the line.
7.16.2007 1:49am
Greedy Clerk (mail):
Mr. Bahner, you appear to have a view of the Constitution that has been rejected by every single Supreme Court Justice over the last 50 years (with the possible exception of Justice Thomas). Indeed, your understanding of the Commerce Clause is probably contrary to every single opinion of the Supreme Court I have ever read, especially Gibbons. I don't begrudge you that, but the fact that you find your view to be self-evidently correct---such that you mock anyone with the contrary and much mor well-accepted view---is quite annoying. Indeed, it borders on trolling.

Furthermore, the cases I was referring to were obviously the cases upholding the various 60's era civil rights statutes against constitutional challenge, as those were the cases being referenced.
7.16.2007 2:23am
Just Dropping By (mail):
Care to cite some case law for that one, JDB?

Try these for starters:

Adashunas v. Negley, 626 F.2d 600 (7th Cir. 1980) (Rule 23(b)(2) certification denied due to ascertainability problem for class defined as "children entitled to a public education who have learning disabilities and 'who are not properly identified and/or who are not receiving' special education.").

DeBremaecker v. Short, 433 F.2d 733 (5th Cir. 1970) (Rule 23(b)(2) certification denied due to ascertainability problem for class defined as "residents of this State active in the 'peace movement' who have been harassed and intimidated as well as those who fear harassment and intimidation in exercising their First Amendment right of free expression in the form of passing out leaflets in furtherance of their cause.").

While it is true that ascertainability is often less important for Rule 23(b)(2) purposes, it is still something that must be evaluated. Your proposed definition was similar in key respects to the rejected class in DeBremaecker in that class membership would have been dependent on an individual's subjective reaction to the policy.
7.16.2007 10:58am
David M. Nieporent (www):
While I am loath to feed a troll, can anyone seriously contend that segregation by merchants and innkeepers did not affect interstate commerce?
I don't believe anybody can seriously make that argument, no. But you'll notice that the Constitution doesn't say anything about "affecting." It's Wickard, not Heart of Atlanta, that's the problem for Commerce Clause purposes.
7.16.2007 11:37am
Peter B. Nordberg (mail) (www):
Mark B:

I didn't say that there is or should be a federal claim either. I frankly don't know whether there is. I would think a state public accommodations law might be the first place to look.

In saying that price discrimination based on race, ethnicity, gender, or religion worries me more than discrimination based on age, I was reporting an intuition rather than a carefully thought-through judgment -- as was candidly disclosed. I do believe most people would find something disturbing about price discrimination based on race or religious belief; many people would want that to be illegal. Gender worries me less than race but more than age. What I don't think is that any discrimination problem is negated, or rendered "trivial," merely because some or many members of the discriminatee class are down with it, for libidinal or other reasons. (It's actually the hypothesized libidinal interests of the supposed discrimination-favoring male majority that strike me as the best candidate for "trivial" here.)
7.16.2007 12:14pm
marghlar:
I guess we read DeBremaecker very differently. To me, it stands for the obvious (and readily distinguishable) proposition that defining a class by reference to membership in the "peace movement" is exteremly vague; there would probably be more ambiguous cases of such membership than clear cases. But that isn't the case here; the issue here isn't vagueness, but a class dependent on a mental state. (I refer to the only part of DeBremaecker that I find coherent; the remainder of the class certification part seems only to be making an underanalyzed point about numerosity -- i.e., that maybe the chilling effect is narrow enough that the class shouldn't be certified, with no assertion of the probable number of people affected.)

Ashdunas doesn't fare much better in my view; it is a case stating that you can't define a class as people who are unknown, because it makes almost every otehr aspect of the class certification process impossible.

So I still think you need some more support for your "no internal mental state" prinicple before I would really buy it as a limit on b2 class actions.
7.16.2007 1:13pm
dave m (mail):
Oren,
I disagree with your objection #1 concerning speculation about member of the class. It seems the only facts currently in evidence are that one individual objects to a clubs gender pricing models. This post initially started out as a question concerning the certification of a class for the civil procedure. Speculation on whether a class exists that was harmed is germane to this discussion.

dave
7.16.2007 1:50pm
Peter B. Nordberg (mail) (www):
The strategy of addressing this perceived problem by defining the class to include only persons "aggrieved" seems faulty to me, regardless of whether it would be permissible (as I tend to doubt). First, as already discussed, it's dubious that any real problem exists (of the sort raised in the initial post, anyway). But second, if one did exist, the definitional solution wouldn't really solve it. One primary function of the class definition, and perhaps the primary one in the context of injunctive and declaratory relief, is to identify the parties bound by the judgment. The injunction would presumably be prospective, and would bar higher prices for some defined set of males. The club owner, and the customers, will need to know who's within the injunction's scope. The injunction might: (a) bar the club from charging higher prices to Mr. Hollander (if no class is certified but Mr. Hollander prevails on the merits); (b) bar the club from charging higher prices to any male; or (c) bar the club from charging higher prices to any "aggrieved" male. I wouldn't know what an injunction of type (c) even meant, or how to determine whether any given customer fell in that category. Will class members get to decide, after the suit is over, whether they are to be counted as having been parties to it? How else, other than relying on the customers' say-so, are we to decide who is or was "aggrieved"? (I'm not asking for ingenious legislative ideas here. I'm asking how we're to know under current law.)
7.16.2007 4:23pm
Mark Bahner (www):
"Mr. Bahner, you appear to have a view of the Constitution that has been rejected by every single Supreme Court Justice over the last 50 years (with the possible exception of Justice Thomas)."

Well, thank you! There is virtually no doubt in my mind that the view of the Constitution of virtually every single Supreme Court Justice over the last 50 years would be decisively rejected by virtually every one of the Founding Fathers (with the possible exception of Alexander Hamilton).

So you can stick with the view of the Constitution of the men and women of today who don't even try to follow it. And I'll stick with the view of the Constitution of the men who actually *wrote* it.

"Indeed, your understanding of the Commerce Clause is probably contrary to every single opinion of the Supreme Court I have ever read, especially Gibbons."

Gibbons was a state granting a monopoly which reduced trade among the states. Where in the Ladies Night case is a state intervening to reduce trade among states? In fact, where is any restraint at all in trade among states?

You can pretend all you like that modern Supreme Court judges decisions bear any relationship to the Constitution. Just like you can pretend all you like that the Founding Fathers intended the the Ladies Night case to be an example of the federal government stepping in and making regular "commerce among the several states."

But it's your fantasy world. Not fact. Why don't you bring any historical evidence forward regarding the Constitutional Convention or any of the Founding Fathers written opinions that you think supports the view that the Founding Fathers wrote the Commerce Clause with such a case (a dispute between private individuals...and no money even remotely involved in crossing state lines)? Why don't you ask someone here to provide such evidence?

If you're honest, you'll either provide such evidence, have someone else provide it, or admit that there probably isn't any evidence.
7.16.2007 11:44pm
Mark Bahner (www):

Well, it *is* trivial, in the sense that a very large number of the male customers, if not even a *majority* of the male customers, probably support the discrimination in this case.



Objection #1 - assumes facts not in evidence.


No offense, Oren, but have you ever owned a bar or similar establishment? No? Well, neither have I.

But the men and women who actually OWN bars have Ladies Nights. Given the fact that 50 percent of the population is male, it must not be a big deal to them to have price discrimination in favor of women.

This is obvious from simple economics. Bar owners try to maximize profits. In their attempts to MAXIMIZE profits, they are even allowing women to pay LESS then men. So it's obvious that men don't mind very much. In fact, there is clear evidence that they approve. That's because if men did NOT approve, there would be too many women during Ladies Nights, and the bar owners would make less and less profit.

It's a bit annoying to me when people who DON'T own the businesses in question seem to think that they know more than the owners of such businesses.

If men are offended by price discrimination in favor of women (and against men) in bars, then the men won't go to the bars, and the bar owners will make less money. In fact, bars that did NOT have Ladies Nights would take all the male business away from bars that did have Ladies Nights, if men objected.

How can you observe very clear human behavior, and deny that behavior is "evidence"?

"Objection #2 - irrelevant: the consent or even outright support by the discriminated-against does not weigh in favor of the change."

Yes, the consent and even outright support of the discriminated-against merely shows how completely screwed up our legal system is.

Here we have a case where there is NO state law against Ladies Nights (nor one requiring them). AND we have evidence of the consent or even outright support of the discriminated against. And this case has absolutely nothing to do with commerce among the several states. And it has nothing to do with the 14th amendment.

But still we have some people advocating that the federal government should step in.

Where have I read about such insanity? Well, I guess it would be Thomas Sowell's "The Quest for Cosmic Justice." (As Thomas Sowell points out, regular justice is frequently diminished in the quest for cosmic justice.)
7.17.2007 12:12am