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May 31, 2019 Practice Points

Asarco Attempts to Certify Rarely-Seen Defendant Class Action

The court’s order will help inform this area of the law and address many considerations, hopefully in a manner that continues to protect the rights afforded to defendants.

By Lorell M. Guerrero

On May 7, 2019, in a rarely seen move, plaintiff Asarco LLC filed a motion requesting certification of a defendant class of retirees pursuant to Rule 23 of the Federal Rules of Civil Procedure. In doing so, Asarco seeks to use “a class action [as] the best method” by which to attain declaratory relief that it has the right to modify medical and prescription drug benefits of Asarco retirees in a current dispute with its former employees and their respective unions. Mot. at 16.

Asarco states that “[t]he idea of a defendant class is not novel. Indeed, the text of Rule 23(a) expressly contemplates such classes, stating that [o]ne or more members of a class may sue or be sued as representative parties on behalf of all members.” Id. at 2 (citing Mary Kay Inc. v. Reibel, 327 F.R.D. 127, 129 (N.D. Tex. 2018) (internal quotations and citation omitted)). While not very common, other courts have certified defendant classes. Asarco cites to a number of these, including one in which it was also a plaintiff; however, all but one of the cases cited involved instances where defendants joined the motion for certification or stipulated to class certification. See id. at 2-3.

Asarco argues that, just as would be the case for a plaintiff class, all threshold requirements for class certification under Rule 23 are satisfied. See id. at 3. It points to the “sheer size and wide geographic diversity” of the proposed class, spanning over 740 defendants across 13 states, as evidence for establishing numerosity. Id. at 4. Asarco also identifies common questions of fact and law that apply equally to all defendants, including Asarco’s right to modify the retirees’ benefits and U.S. Supreme Court precedent regarding collective bargaining agreements. See id. at 5. As to typicality, Asarco overlooks any individualized arguments defendants could make, instead positing that class representatives will make the same arguments, “all based on the same legal theories,” that Asarco does not have the right to modify retirees’ benefits under the governing documents. Id. at 7. Further, according to Asarco, this shared interest in making such arguments also helps to establish that the named representatives will adequately represent the defendant class. See id. at 7–9. Asarco’s motion separately emphasizes that the court should assess the adequacy of counsel to serve as class representatives despite counsels’ protests against it. See id. at 10–11. Noting that Rule 23 does not require a willing representative, “merely an adequate one,” Asarco argues that “[w]here there are legal issues common to the class, the representative who defends his own interest will also be protecting the interests of the class.” Id. at 11 (internal citations omitted).  

Such a motion, especially one not joined by defendants, brings up a number of questions: Would a class representative who has no interest in being such provide adequate representation to a defendant class? How will the fact that defendants did not join Asarco’s motion or stipulate to certifying a class impact the court’s ruling? Would an unwilling defendant class have to bear the costs of class notification? How do opt-out suits counteract plaintiffs’ arguments for judicial economy? Would an order granting class certification in this instance infringe upon due process rights in a way not encountered in the context of plaintiff classes? Is the current standard that requires that each class plaintiff have a colorable claim against each defendant sufficient to protect the interests of unnamed class defendants? What special steps would the court have to take in order to assure fairness to absent defendant class members? Given the rarity of defendant classes, this court’s order will help inform this area of the law and address many of these considerations, hopefully in a manner that continues to protect the rights afforded to defendants under our justice system. 

Lorell M. Guerrero is an associate at Weil, Gotshal & Manges LLP in Miami, Florida.

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