Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association
2005 Vol. 28, No. 10
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.
By reading this article and answering the accompanying test
questions, you can earn one MCLE credit. To apply for credit, please
follow the instructions on the test.
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
1) A sufficient number of class members so that joinder is impracticable
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
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
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).
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.
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.
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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