MCLE Article: Rights for Wrongs

Recent clarifications have expanded the reach and remedies available under the Tom Bane Civil Rights Act

By Barry Litt and Genie Harrison

Barry Litt and Genie Harrison are partners in Litt, Estuar, Harrison, Miller & Kitson, LLP, a law firm in downtown Los Angeles representing plaintiffs in complex civil rights, class action, and employment cases.

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A county jail has a policy of routinely detaining arrestees after they have been ordered released. A large company pressures its employees to donate money to a fund supporting the candidates of one political party. A slumlord intimidates tenants who complain about building conditions by threatening to call the immigration department and file evictions.

Each of these scenarios involves a violation of a statute or constitutional provision1 that may only result in minimal economic damages if an individual claim is brought, and may require prohibitively high discovery costs if individual claims are joined. The only effective means to compensate victims under these circumstances is through class actions.

Traditionally, however, a class action under these circumstances would be vigorously opposed by defense counsel on the ground that the damages claims are particular to each individual plaintiff and, therefore, are not sufficiently common to allow certification of the class. While there are responses to that contention, class action attorneys thankfully now have an additional and potentially very effective weapon in their arsenal to counter this argument.

The California Supreme Court's decision in Venegas v. County of Los Angeles2 created a great potential for the expansion of class action claims through the proper use of Civil Code Sections 52.1 and 52. Sections 52.1 and 52 now may be used to certify class actions for damages when there is small economic damage and a state or federal statute has been violated through the use of threats, intimidation, or coercion. If Sections 52.1 and 52 are asserted in conjunction with each other, the statutory damages available under Section 52, which are $4,000 per plaintiff, should eviscerate the defense argument that a Section 52.1 class action cannot be certified because the damages are too individualized for each plaintiff. Thus, plaintiffs' attorneys should be able to certify class actions seeking damages for a violation of Section 52.1 using the statutory damages provided under Section 52. Civil Code Section 52.1, the codification of the Tom Bane Civil Rights Act, provides that:

1) Anyone who interferes or attempts to interfere by threats, intimidation, or coercion, with another's exercise or enjoyment of rights secured by the U.S. Constitution or laws of the United States or of California, may be sued for damages, including damages available under Civil Code Section 52,3 or for injunctive relief.4 Plaintiffs may bring suit even if the violator was acting under the color of law.
2) An action available under this law is independent of any other available action, remedy, or procedure, including actions brought pursuant to Civil Code Section 51.7.5 Section 51.7 is the codification of the Ralph Civil Rights Act and is commonly referred to as the hate crimes statute.
3) The plaintiff may be awarded a reasonable attorney's fee.6

For many years the reach of Section 52.1 was limited because courts incorrectly interpreted the section as being part of the hate crimes statute's framework. The hate crimes statute provides a cause of action for a plaintiff who has been subjected to violence, or intimidation by threat of violence, because of the the fact, or the perception, of the plaintiff's race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute.

In Boccato v. City of Hermosa Beach7 the court incorrectly applied the hate crimes requirements to a Section 52.1 claim, holding that Section 52.1 only provided relief to members of the classes protected under Section 51.7 against invidious discrimination. Thus the Boccato court concluded that to state a case under Section 52.1, a plaintiff had to be a member of a protected class under the hate crimes statute and the conduct complained of had to be due to the plaintiff's membership in that protected class.8 This was an unfortunate restriction on the scope of Section 52.1 claims, since the language of Section 52.1 is much broader than that of Section 51.7. In 2000 the legislature amended Section 52.1 to clarify that Boccato was decided in error and that Section 52.1 claims were not limited to those brought by members of a class protected under the hate crimes statute.9

After the legislature's amendment of Section 52.1, the California Supreme Court held in Venegas v. County of Los Angeles10 that Boccato's interpretation of Section 52.1 was not supported by the language of the statute. Venegas applied Section 52.1 to an overdetention in the Los Angeles county jail and, as a result of the opinion, there is little question that Section 52.1 applies generally to constitutional and statutory violations carried out through threat, intimidation, or coercion--not just to claims that meet the requirements of the hate crimes statute. As Justice Baxter said in his concurrence:

Under section 52.1 as now amended, whenever any person, whether or not acting under color of law, interferes by threats, intimidation, or coercion with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, a civil action may be brought under its provisions for greatly expanded compensatory damages, substantial fines ($25,000), injunctive and other appropriate equitable relief, as well as attorney fees.11

Subsequent cases rejected attempts to limit the statute to hate crimes.12 The California Supreme Court had earlier characterized Section 52.1 as requiring only "an attempted or completed act of interference with a legal right, accompanied by a form of coercion."13 This language was fairly broad, but the scope of the statute had yet to be determined. While California courts have not extensively interpreted the sweep of Section 52.1's language regarding intimidation, threat, or coercion, those terms in other statutes have been given an expansive interpretation.14

The California Supreme Court has observed that portions of Section 52.1 were modeled on the Massachusetts Civil Rights Act of 1979, and also has examined Massachusetts decisions construing the statute.15 The Massachusetts courts have given a broad reading to their analogue to Section 52.1, ruling in one case that "where one party deprives another of rights due under a contract or makes it impossible, due to sexual harassment, for another to continue her employment," the statute is violated.16 In another case, the Massachusetts statute was violated when a security guard ordered a candidate for political office who was distributing handbills to stop doing so.17 The Massachusetts Supreme Court characterized that holding as supporting the conclusion that the Massachusetts statute's coercion provision "was satisfied simply because the natural effect of the defendant's action was to coerce [the candidate] in the exercise of his rights."18

When Section 52.1, as currently interpreted, is coupled with the "per violation" damages provision of Section 52, plaintiffs have access to a potentially powerful weapon for redress of claims that may not have been economically viable to pursue previously. This is so because Section 52.1(b) specifically incorporates and makes available the damages provided under Section 52--including minimum statutory damages of $4,000 for each offense.19 The conclusion that Section 52.1 incorporates the damages provision of Section 52 is supported by the straightforward language of Section 52.1(b) that a private party "may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages, including, but not limited to, damages under Section 52." According to one court construing the statutes:

[S]ection 52--which applies to both access to accommodation claims under section 51 and civil actions for denial of constitutional rights under section 52.1 (Section 52, subds. (a), (b))--created liability for up to a maximum of three times the amount of actual damage suffered by any person denied specified rights "but in no case less than one thousand dollars ($1,000) [now $4000], and any attorney's fees that may be determined by the court in addition thereto...."20

An argument against this interpretation of Section 52 is that Section 52(a), which contains the $4,000 damages provision, specifically makes its provisions applicable to Sections 51, 51.5, or 51.6--Section 52.1 is not mentioned. Defendants will assert that Section 52(a) only applies to those three listed statutes. The response to the argument is that it makes a nullity of the language in Section 52.1 providing for damages under Section 52 and contravenes the basic rules of statutory construction.21

Class action lawyers should aggressively pursue Section 52.1 claims and the minimum damages of $4,000 per offense to certify appropriate cases. Without the availability of the per violation damages provision of Section 52, certifying cases for those whose civil rights have been violated but have suffered minimal economic damage could prove difficult, though not impossible, due to the "individualized damages" defense argument. With the availability of $4,000 damages per violation under Section 52, this defense argument should be relatively easy to overcome.

Criteria for Class Actions

Understanding the effect that the availability of statutory per violation damages has on certifying a class requires a grasp of basic class action law and procedure.22 In California, courts draw liberally on federal law regarding class certification and often refer to Rule 23(a) of the Federal Rules of Civil Procedure.23 The trial court has considerable discretion in determining whether to certify a class, and on appeal a court's class certification decision is reviewed for an abuse of discretion.24 Courts should exercise their discretion liberally because "if there is to be an error made, let it be in favor and not against the maintenance of the class action, for it is always subject to modification should later developments during the course of the trial so require."25 Hence, there is a presumption in favor of certifying a class.26 As a result, courts of appeal are "noticeably less deferential to the district court when that court has denied class status than when it has certified a class."27

In deciding a motion for class certification, the court accepts the plaintiffs' allegations as true. An inquiry into the merits of the case is improper at the class certification stage:28 "The Court's inquiry on a class certification motion is limited to whether the requirements of Rule 23 have been satisfied, and is not supposed to extend to whether plaintiff class representatives have successfully stated a cause of action or will prevail on the merits."29

Rule 23(a) provides that the prerequisites to maintain a class action are:

1) A sufficient number of class members so that joinder is impracticable ("numerosity").
2) The questions of law or fact are common to the class ("commonality").
3) The claims of class representatives are typical of the class ("typicality").
4) Class representatives will fairly and adequately represent the interests of the class ("adequacy of representation").

In addition, one of the provisions of Rule 23(b) of the Federal Rules must be met. Rule 23(b)(1) provides certain standards for certification that, as a practical matter, are rarely relied upon.30

Rule 23(b)(2) governs injunctive relief class actions and provides for class certification when "the party opposing the class has acted...on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." Indeed, "Rule 23 class actions were designed specifically for civil rights cases seeking broad declaratory or injunctive relief for a numerous and often unascertainable or amorphous class of persons."31 Injunctive relief class actions are relatively easy to certify, so long as the claims asserted arise from the widespread implementation and application of an unlawful policy.

A potential advantage of an injunctive relief claim is that, as a practical matter, certification of a (b)(2) class may make the court more amenable to certification of a monetary relief class. An action that seeks both injunctive and monetary relief may be certified under Rule 23(b)(2), and, if a class qualifies under (b)(2), it often makes it easier for a court to certify the money damages aspect of the case on the ground that money is not the main relief sought.32

Although Rule 23(b)(3) does not say so explicitly, it is the rule that normally controls damages class actions. Rule 23(b)(3) provides that class certification should be granted where "the Court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." In addition, according to Rule 23(b)(2)(D), the "difficulties likely to be encountered in the management of a class action" are major issues in certifying a damages class.

Defendants typically argue in large class actions that a case "is not suitable for class certification because the litigation of the class claims will require a multitude of 'mini-trials' on liability and damages."33 In Mack v. Suffolk County, a case involving strip searches of arrestees, the court noted that liability could appropriately be addressed through the class mechanism, and that, "although individualized inquiries into the impact of the searches on particular class members may be necessary, the potential for differing amounts of restitution does not automatically preclude class certification..."34 This is the critical issue when a claim is based on a clear, unlawful policy or practice, because defendants will use the argument of individualized damages to try to defeat class certification of cases that otherwise would qualify for class treatment.

The language of Rule 23(b)(3) invites such protestations because, regarding the issue of commonality, it states that common questions must predominate.35 Defendants may dovetail this requirement with the provisions of Rule 23(b)(3) that address the difficulties of the management of the class. They will argue that with such a wide variety of individual damages claims, common questions do not predominate and the class is not manageable. As a result, according to this analysis, the requirements for certifying the class as a damages class are not met.

There may be sound policy arguments for the proposition that the existence of individual damages claims does not change the fundamental equation regarding what constitutes a class. However, the intersection of individual damages and manageability of the class is where the statutory per violation damages come into play. If statutory per violation damages are available, then 1) individual damages determinations are not necessary, and 2) the class can be certified so that only relief under the statutory damages provision is available. Thus, with statutory minimum damages, manageability of the class and individualized damages determinations are no longer at issue. In the past, this approach was only available in discrimination class action claims under Civil Code Section 51 or equivalent statutes, and even then it was not heavily utilized. After Venegas, this remedy is now potentially available in a much wider range of cases under Section 52.1.

Class action plaintiffs can avoid the individualized damages issue by proposing that the class be limited to those who will accept the minimum statutory damages.36 Furthermore, plaintiffs arguably can request that the jury be allowed to determine whether to increase the statutory damages by some multiple--an action permitted by Section 52.

It is well established that if class damages are susceptible to a predetermined mathematical formula, a class is appropriate.37 Indeed, courts have certified class actions when the class was based on statutory damages under Civil Code Section 52.38 However, there may be circumstances when, despite the apparent applicability of Sections 52 and 52.1, a court rejects their use for one reason or another.39

Statistical Sampling and Aggregate Evidence

The use of aggregate evidence, including evidence based on a random sample of the class, to establish damages is a new and growing development in class actions.40 The U.S. Supreme Court has observed, in an antitrust context, that it is sufficient to establish damages "if the evidence shows the extent of the damage as a matter of just and reasonable inference, although the result be only approximate," for the "wrongdoer is not entitled to complain that they cannot be measured with exactness and precision that would be possible if the case, which he alone is responsible for making, were otherwise."41

Due process and Seventh Amendment objections have been raised to the use of statistical sampling to determine damages, but these arguments should not be determinative.42 Moreover, the Seventh Amendment does not apply to claims brought in state court,43 and California law has long allowed aggregate determinations of the causation of damages, which is conceptually indistinguishable from an aggregate determination of the amount of damages.44

Although not an ideal approach, plaintiffs also can consider circumventing class damages issues by limiting class certification to the question of liability. Rule 23(c)(4) of the Federal Rules of Civil Procedure provides that "when appropriate (A) an action may be brought or maintained as a class action with respect to particular issues." Thus, plaintiffs can argue that the court should certify the class for liability purposes only, leaving the damages for individual determination.45

Developments in California law present significant opportunities for the expansion of the remedies available to redress violations of civil rights. In light of recent judicial clarifications, Civil Code Section 52.1 claims are no longer confined to addressing discrimination claims. Imaginative and creative plaintiffs' lawyers should be aware of the potential for pursuing claims for groups of people harmed by a pattern of abuse, even though individual damages might not be readily determined. Defendants may be more willing to change illegal policies voluntarily once they recognize the potential economic cost of not doing so. In the appropriate case, the effort to pursue a class action is a worthwhile one, because it can result in significant policy changes as well as compensation to the class. Defense counsel should similarly be aware that Section 52.1 is likely to be available for claims that, in the past, were determined to be beyond its reach.

Endnotes

1 See U.S. Const. art. 4 and Cal. Const. art. I, §13 (prohibition against unreasonable search and seizure); Lab. Code §§1101, 1102 (prohibition of prevention or control of employee political activities by employer); Civ. Code §§1941, 1942 (warranty of habitability).
2 Venegas v. County of L.A., 32 Cal. 4th 820 (2004).
3 Civ. Code §52.1(b).
4 Civ. Code §52.1(a), (b).
5 Civ. Code §52.1(g).
6 Civ. Code §52.1(h).
7 Boccato v. City of Hermosa Beach, 29 Cal. App. 4th 1797, 1809 (1994).
8 Id.
9 Civ. Code §52.1(g).
10 Venegas v. County of L.A., 32 Cal. 4th 820, 843 (2004).
11 Id. at 850.
12 Francis v. State of Cal., 2004 WL 1792627, at 10 (N.D. Cal. 2004).
13 Jones v. Kmart Corp., 17 Cal. 4th 329, 334 (1998).
14 See, e.g., Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F. 3d 208 (2d Cir. 2001); Franklin v. Consolidated Edison Co., 1999 WL 796170 (S.D. N.Y. Sept. 30, 1999); Crescent City M Dealership, L.L.C. v. Mazda Motor of Am., Inc., 2000 WL 1372965, at *6 (E.D. La. 2000); Walker v. City of Lakewood, 272 F. 3d 1114 (9th Cir. 2001); Brown v. City of Tucson, 336 F. 3d 1181, 1191 (9th Cir. 2003).
15 Jones, 17 Cal. 4th at 335.
16 Buster v. George W. Moore, Inc., 438 Mass. 635, 647 (2003).
17 Batchelder v. Allied Stores Corp., 473 N.E. 2d 1128 (Mass. 1985).
18 Redgrave v. Boston Symphony Orchestra, Inc., 399 Mass. 93, 100 (Mass. 1987).
19 See Civ. Code §52(2). Although §52.1 contains a $25,000 civil penalty provision, and Justice Baxter stated in his concurrence in Venegas that a $25,000 civil penalty appeared to be available to an individual under §52.1, that interpretation may be flawed. It is likely that §52.1 civil penalties (as distinguished from minimum statutory damages) may be obtained only if sought by the attorney general, a district attorney, or a city attorney due to the specific language of §52.1.
20 Gatto v. County of Sonoma, 98 Cal. App. 4th 744, 752-53 (2002). See also Francis v. State of Cal., 2004 WL 1792627, at *9 n.7 (N.D. Cal. 2004) (assuming Civ. Code §52 damages provision applies to violations of Civ. Code §52.1).
21 "'Interpretive constructions which render some words surplusage...are to be avoided.'" California Mfrs. Ass'n. v. Public Utils. Comm'n, 24 Cal. 3d 836, 844 (1979).
22 For further analysis and additional citations of cases, see Barry Litt, Class Certification in Police/Law Enforcement Cases, 18 Civil Rights Litigation and Attorney's Fee Annual Handbook ch. 3, at 3-4 through 3-25 (2002) [hereinafter Litt].
23 See, e.g., City of San Jose v. Superior Court, 12 Cal. 3d 447, 453 (1974). See Cal. R. of Ct. 1850 et seq. (procedures for pursuing class actions in California state courts, effective Jan. 1, 2002).
24 Barber v. Hawaii, 42 F. 3d 1185, 1197 (9th Cir. 1994); Hilao v. Estate of Marcos, 103 F. 3d 767, 774 (9th Cir. 1996).
25 Esplin v. Hirschi, 402 F. 2d 94, 99 (10th Cir. 1968), cert. denied, 394 U.S. 928 (1969).
26 H.B. Newberg, 4 Newberg on Class Actions §7.17, at 60 (4th ed. 2002) [hereinafter 4 Newberg on Class Actions]; In re School Asbestos Litigation, 789 F. 2d 996 (3d Cir. 1986), cert. denied, 479 U.S. 852 (1986).
27 Lundquist v. Security Pac. Auto. Fin. Servs., 993 F. 2d 11, 14 (2d Cir. 1993) (citing Robidoux v. Celani, 987 F. 2d 931, 935 (2d Cir. 1993)).
28 Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78 (1974); Blackie v. Barrack, 524 F. 2d 891, 901 & n.17 (9th Cir. 1975).
29 Longden v. Sunderman, 123 F.R.D. 547, 551 (N.D. Tex. 1988). In practice, however, courts do consider the merits of the claim, and some courts have indicated that they consider it appropriate to consider the merits at the class certification stage.
30 This may change as plaintiffs' attorneys in some jurisdictions face greater difficulties in certifying damages claims previously certified under Rule 23(b)(3) of the Federal Rules of Civil Procedure. For example, plaintiffs' class counsel in the Fifth Circuit have been looking at Rule 23(b)(1) as a potential means to overcome the hurdle posed by Allison v. Citgo Petroleum Corp. and its progeny. Allison, 151 F. 3d 402, 426 (5th Cir. 1998) (Certification under Rule 23(b)(3) was not appropriate because "plaintiffs' claims for compensatory and punitive damages must...focus almost entirely on facts and issues specific to individuals rather than the class as a whole.").
31 4 Newberg on Class Actions, supra note 26, §4.11, at 4-39.
32 Patrykus v. Gomilla, 121 F.R.D. 357, 363 (N.D. Ill. 1988); Love v. City of Chicago, Ill., 1997 WL 120041, at *5 (N.D. Ill. Mar 11, 1997). There are potential procedural hurdles to these claims in federal court.
33 Mack v. Suffolk County, 191 F.R.D. 16, 25 (D. Mass. 2000).
34 Id. (citing Samuel v. University of Pittsburgh, 538 F. 2d 991, 995 (3d Cir. 1976)).
35 Cf. Fed. R. Civ. P. 23(a). This rule's provision for commonality only requires the existence of common questions of law or fact, not that those questions predominate.
36 The $4,000 figure likely only applies to conduct occurring after Jan. 1, 2002, under normal rules of statutory construction.
37 See, e.g., Six (6) Mexican Workers v. Arizona Citrus Growers, 904 F. 2d 1301, 1305-06 (9th Cir. 1990); Windham v. American Brands, Inc., 565 F. 2d 59, 68 (4th Cir. 1977), cert. denied, 435 U.S. 968 (1978); Brown v. Pro Football, Inc., 146 F.R.D. 1, 5 (D. D.C. 1992); Walsh v. Pittsburgh Press Co., 160 F.R.D. 527, 531 (W.D. Pa. 1994)).
38 See Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439 (N.D. Cal. 1994); Moeller v. Taco Bell Corp., 2004 WL 615085 (N.D. Cal. 2004); cf. Botosan v. Paul McNally Realty, 216 F. 3d 827, 835 (9th Cir. 2000).
39 See text infra regarding the arguments against the application of §52 damages to §52.1. Further, defendants continue to argue that violence is an element of §52.1, despite Venegas.
40 See 4 Newberg on Class Actions, supra note 26, §10.01 ("There are occasions when it is feasible and reasonable to prove aggregate monetary relief for the class from an examination of the defendant's records, or by use of a common formula or measurement of damages multiplied by the number of transactions, units, or class members involved, or by reasonable approximation with proper adherence to recognized evidentiary standards."); Bell v. Farmers Ins. Exch., 115 Cal. App. 4th 715, 746-56 (2004) (extensive discussion upholding use of statistical sampling to prove damages in wage and hour class action); Hilao v. Estate of Marcos, 103 F. 3d 767, 785-86 (9th Cir. 1996) (A class action trial based on the use of a randomly selected sample was appropriate for the determination of damages for a class of 10,000 people subject to torture, murder, and disappearance by the Marcos regime in the Philippines); Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris, Inc., 113 F. Supp. 2d 345, 372-76 (E.D. N.Y. 2000) (approving the use of statistical sampling evidence to support damages claim). See Litt, supra note 22.
41 Story Parchment Co. v. Patterson Parchment Co., 282 U.S. 555, 563 (1931), cited in Allaptatah Servs. v. Exxon, 157 F. Supp. 2d 1291, 1313 (S.D. Fla. 2001).
42 See Bell, 115 Cal. App. 4th at 746-64 (Statistical sampling to prove damages in wage and hour class action does not violate due process.); Hilao, 103 F. 3d at 786-87 (Aggregated damages are not a violation of due process.); In re Estate of Marcos Human Rights Litig., 910 F. Supp. 1460, 1468-69 (D. Haw. 1995); Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris Inc., 113 F. Supp. 2d 345, 372-76 (E.D. N.Y. 2000); Blue Cross & Blue Shield of New Jersey, Inc. v. Philip Morris USA Inc., 344 F. 3d 211, 225-27 (2d Cir. 2003) (The use of aggregate proof to determine causation and damages for thousands of claims does not violate the Seventh Amendment.).
43 See Gasperini v. Center for Humanities, 518 U.S. 415, 431 (1996).
44 See Summers v. Tice, 33 Cal. 2d 80, 84 (1948); Sindell v. Abbot Labs., 26 Cal. 3d 588, 610-11 (1980); but see, e.g., Cimino v. Raymark, 151 F. 3d 297 (5th Cir. 1998); Arch v. American Tobacco Co., 175 F.R.D. 469, 493 (E.D. Pa. 1997); Estate of Mahoney v. R. J. Reynolds Tobacco Co., 204 F.R.D. 150, 160 (S.D. Iowa 2001). Cf. In re Chevron U.S.A., Inc., 109 F. 3d 1016, 1017 (5th Cir. 1997); In re Fibreboard Corp., 893 F. 2d 706, 710 (5th Cir. 1990).
45 See, e.g., Valentino v. Carter-Wallace, Inc., 97 F. 3d 1227, 1234 (9th Cir. 1996) ("Even if the common questions do not predominate over the individual questions so that class certification of the entire action is warranted, Rule 23 authorizes the district court in appropriate cases to isolate the common issues under Rule 23(c)(4)(A) and proceed with class treatment of these particular issues."); Sterling v. Velsicol Chem. Corp., 855 F. 2d 1188, 1196-97 (6th Cir. 1988). Class action treatment is appropriate as long as "common questions of law or fact" predominate. See, e.g., Blackie v. Barrack, 524 F. 2d 891, 905 (9th Cir. 1975); Robinson v. Metro-North Commuter R.R. Co., 267 F. 3d 147, 168-69 (2d Cir. 2001) (District courts should "'take full advantage of th[is] provision'" to certify separate issues "in order...'to reduce the range of disputed issues' in complex litigation" and achieve judicial efficiencies.).

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