By Gerald L. Maatman, Jr., Nathan N. Norimoto, Nick Baltaxe
Duane Morris Takeaways: On January 17, 2024, in Anders, et al. v. California State University Fresno, et al., No. 23-15265, 2024 U.S. App. LEXIS 1063 (9th Cir. Jan. 17, 2024), the Ninth Circuit vacated the U.S. District Court for the Eastern District of California’s decision to deny Plaintiffs’ renewed motion for class certification. Specifically, the Ninth Circuit held that the District Court erred by finding the named plaintiffs would not be adequate class representatives due a “speculative” conflict of interest that could develop at the remedy stage of the litigation. The Ninth Circuit remanded the action to the District Court for further proceedings. The ruling is required reading on the procedural aspects of class certification in discrimination cases in general, and with respect to how actual or perceived conflicts on interest in particular implicate the Rule 23 (a)(4) analysis.
Case Background
Plaintiffs Taylor Anders, Hennessey Evans, Abbigayle Roberts, Megan Walaitis, Tara Weir, and Courtney Walburger were all former members of the California State University, Fresno (“Fresno State”) women’s lacrosse team. Id. at *2. Plaintiffs brought class claims alleging effective accommodation and equal treatment under Title IX. Id. Plaintiffs sought an injunction that would prohibit Fresno State “from eliminating Fresno State’s women’s lacrosse team (or any other women’s varsity intercollegiate athletic opportunities at Fresno State) unless and until Fresno State is and will be in compliance with Title IX.” Id. at *5, fn. 4.
Plaintiffs “sought certification of classes consisting of current and future female students at Fresno State who have participated in or are able and ready to participate in women’s varsity intercollegiate athletics at Fresno State.” Id. at *3. The District Court denied Plaintiffs’ class certification motion in its entirety on the basis that the Plaintiffs were not adequate class representatives under Rule 23(a)(4), as their affiliation and contentions favored the women’s lacrosse team over other women’s varsity sports. Id. Plaintiffs appealed to the Ninth Circuit.
The Ninth Circuit’s Ruling
The Ninth Circuit vacated the District Court’s decision to deny class certification of the effective accommodation and equal treatment claims. Id. at *6.
First, the Ninth Circuit noted that to defeat adequacy under Rule 23(a)(4), any conflict of interest between the named Plaintiffs and the putative class members must be “actual” and not “speculative,” which only exists if the remedy sought precludes “structural assurance of fair and adequate representation for the diverse groups and individuals affected.” Id. at *4.
With respect to Plaintiffs’ effective accommodation claim, the Ninth Circuit opined that the District Court erred in finding Plaintiffs would not be adequate class representatives due to a “conflict of interest with members of their proposed class” because the District Court only “speculat[ed] as to conflicts that may develop at the remedy stage.” Id. For example, if Fresno State “reinstate[s] at least one women’s sports team,” the Ninth Circuit reasoned that it was only speculation that “plaintiffs would be able to advocate for the reinstatement of the women’s lacrosse team at the expense of other women’s teams.” Id. at *4-*5. At the remedies stage, however, the Ninth Circuit determined that Fresno State “can comply with Title IX without reinstating women’s sports teams by leveling down programs instead of ratcheting them up to achieve substantial proportionality between male and female athletics opportunities.” Id. at *5 (internal quotation marks and citation omitted). Further, the Ninth Circuit pointed out that if Fresno State reinstates women’s sports teams at the remedies stage, the District Court did not identify any “evidence suggesting plaintiffs would have input into which teams are to be reinstated.” Id.
In addition, the Ninth Circuit held that the District Court erred by failing to “independently analyze the equal treatment claim,” and evaluate whether a conflict of interest exists with the respect to the claim. Id. at *5. The Ninth Circuit directed the District Court to analyze the Plaintiffs’ equal treatment claim in light of the “conclusion that the injunctive relief Plaintiffs seek under their effective accommodation claim does not necessarily require reinstatement of the women’s lacrosse team” and to “specifically assess whether a conflict exists under the equal treatment claim.” Id. at *5-*6.
In conclusion, the Ninth Circuit vacated the denial of class certification and remanded to the District Court for further proceedings on the class certification issue. Id. at *6.
Key Takeaways
The Ninth Circuit’s decision in Anders makes it easier for plaintiffs to certify a class in the Title IX context by messaging that challenges to the adequacy of a class representative in a Title IX lawsuit must be based on an actual conflict of interest. Importantly, any challenges to class certification based on the fairness of a potential remedy will likely fail as too “speculative.” Any entity that must comply with Title IX, and finds itself the potential victim of a class action based on Title IX, should keep this distinction in mind.