Jackson v. Motel 6 Multipurpose, Inc. Motion for Leave to File and Brief Amicus Curiae in Support of Suggestion of Rehearing En Banc

    No. 97-2360

IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

«

JANET JACKSON, et a l,

Plaintiffs-Appellees,

v .

MOTEL 6 MULTIPURPOSE, INC., et al.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Middle District of Florida

MOTION FOR LEAVE TO FILE AND BRIEF OF AMICUS CURIAE 
NAACF LEGAL DEFENSE & EDUCATIONAL FUND, INC.

IN SUPPORT OF SUGGESTION OF REHEARING EN BANC

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chackkin 
NAACP Legal Defense & 

Educational Fund, Inc. 
99 Hudson Street, 16th fl. 
New York, N.Y. 10013 
(212) 219-1900

Todd A. Cox 
Yvonne M. Williams 
NAACP Legal Defense & 

Educational Fund, Inc.
1275 K Street, N.W., Suite 301 
Washington, D.C. 20005 
(202) 682-1300

Attorneys for Proposed Amicus Curiae



Janet Jackson, et al. v. Motel 6 Multipurpose, Inc., et al., No. 97-2360 

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

Accor S.A., Defendant-Appellant

Michael C. Addison, Attorney for Plaintiffs-Appellees

Audrey J. Anderson, Attorney for Plaintiffs-Appellees

Karl Baldwin, Plaintiff-Appellee

Jennifer Bethel, Plaintiff-Appellee

William O. Bittman, Attorney for Defendants-Appellants

C. Oliver Burt, III, Attorney for Plaintiffs-Appellees

Burt & Pucillo, Attorneys for Plaintiffs-Appellees

Avis E. Buchanan, Attorney for Plaintiffs-Appellees

Norman J. Chachkin, Attorney for Amicus Curiae

Tanya Charles, Plaintiff-Appellee

Neil Chonin, Attorney for Defendants-Appellants

Chonin, Sher & Navarrete, P.A., Attorneys for Defendants-Appellants

Todd A. Cox, Attorney for Amicus Curiae

Lauren S. Dadario, Attorney for Plaintiffs-Appellees

John C. Davis, Attorney for Defendants-Appellants

Delois Evans, Plaintiff-Appellee

Page Cl of 3



Defendants-Appellants

Jonathan S. Franklin, Attorney for Plaintiffs-Appellees 

Brenda Hatcher, Plaintiff-Appellee

Hogan & Hartson L.L.P., Attorneys for Plaintiffs-Appellees

Craig A. Hoover, Attorney for Plaintiffs-Appellees

IBL Limited, Inc., Defendant-Appellant

Janet Jackson, Plaintiff-Appellee

Elaine R. Jones, Attorney for Amicus Curiae

Marcian Killsknight, Plaintiff-Appellee

Hon. Elizabeth A. Kovachevich, United States District Judge

Pitrall Lambert-Brown, Plaintiff-Appellee

Law Firm of Michael C. Addison, Attorneys for Plaintiffs-Appellees

Theodore J. Leopold, Attorney for Plaintiffs-Appellees

Motel 6 G.P., Inc., Defendant-Appellant

Motel 6 Multipurpose, Inc., Defendant-Appellant

Motel 6 Operating L.P., Defendant-Appellant

NAACP Legal Defense & Educational Fund, Inc., Amicus Curiae

Dennis M. O’Hara, Attorney for Defendants-Appellants

Janet Jackson, et al. v. Motel 6 Multipurpose, Inc., et al., No. 97-2360

Fowler, White, Gillen, Boggs, Villareal and Banker, P.A., Attorneys f o r

Page C2 of 3



Michael J. Pucillo, Attorney for Plaintiffs-Appellees

Reed, Smith, Shaw & McClay, Attorneys for Defendants-Appellants

Edward M. Ricci, Attorney for Plaintiffs-Appellees

Ricci, Hubbard, Leopold & Frankel, Attorneys for

Plaintiffs-Appellees

Steven J. Routh, Attorney for Plaintiffs-Appellees 

Joseph M. Sellers, Attorney for Plaintiffs-Appellees 

Chevon Screen, Plaintiff-Appellee 

Theodore M. Shaw, Attorney for Amicus Curiae 

Kent Spriggs, Attorney for Plaintiffs-Appellees 

Spriggs & Johnson, Attorneys for Plaintiffs-Appellees 

James Stems, Plaintiff-Appellee 

Charles Wachter, Attorney for Defendants-Appellants 

Edward M. Waller, Jr., Attorney for Defendants-Appellants 

Washington Lawyers’ Committee for Civil Rights and Urban Affairs, 

Attorneys for Plaintiffs-Appellees

Wicker, Smith, Tutan & O’Hara, Attorneys for Defendants-Appellants 

Yvonne M. Williams, Attorney for Amicus Curiae

Janet Jackson, et al. v. Motel 6 Multipurpose, Inc., et al., No. 97-2360

Mario Petaccia, Plaintiff-Appellee

Page C3 of 3



No. 97-2360
IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

JANET JACKSON, et al.,

Plaintiffs-Appellees, 

v.

MOTEL 6 MULTIPURPOSE, INC., et al.,

Defendants-Appellants.

Appeal from the United States District Court 
for the Middle District of Florida

MOTION FOR LEAVE TO FILE BRIEF OF AMICUS CURIAE 
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

IN SUPPORT OF SUGGESTION OF REHEARING EN BANC

The NAACP Legal Defense & Educational Fund, Inc. (LDF), by 

undersigned counsel, respectfully moves that this Court grant it leave to file 

the appended Brief as Amicus Curiae in support of the Suggestion of 

Rehearing En Banc filed by Plaintiffs-Appellees in this matter.

LDF has an extensive history of involvement in civil rights litigation, 

including class action cases involving a wide variety of substantive issues. 

Because of the profound impact that the December 10 ruling of a panel of 

this Court will have upon such cases, and because of the importance of the 

class action device in vindicating fundamental statutory civil rights, LDF



believes it is vitally important that an en banc Court be convened to reconsider 

that ruling. Accordingly, we desire to present the members of the Court with 

a brief statement of reasons why that course of action is imperative.

As of the time this brief is being submitted, counsel for proposed amicus 

has been unable to secure consent to its filing from counsel for Defendants- 

Appellants.

WHEREFORE, proposed amicus LDF respectfully prays that leave to 

file the appended Brief be granted.

Respe ^  ’

Elaine R. Jones 
Director-Counsel Yvonne M. Williams 

NAACP Legal Defense &
Theodore M. Shaw 
Norman J. Chachkin 
NAACP Legal Defense & Washington, D.C. 20005 

(202) 682-1300

1275 K Street, N.W., Suite 301
Educational Fund, Inc.

Educational Fund, Inc. 
99 Hudson Street, 16th fl. 
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Proposed Amicus Curiae

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Table of Contents
Page

Motion for Leave to File Brief ........................................................................i

Table of C itations................................................................................................iii

Certificate of Type Size and Style .................................................................vi

Statement of the Issue .....................................................................................  1

Summary of the Argument ..............................................................................  1

ARGUMENT-

I. Rehearing En Banc Should Be Granted Because The 
Panel Erred In Holding That Common Questions Do 
Not Predominate In A Class Action Alleging A
Nationwide Policy And Practice Of Racial 
Discrimination ............................................................................. 2

II. The Panel Ruling Ignores Critical Policy
Considerations Justifying The Use Of Class Actions ............  9

Conclusion ........................................................................................................... 14

Certificate of Service ...................................................................................... 15

Table of Citations

Cases:

Amchem Prod., Inc. v. Windsor,
117 S. Ct. 2231 (1997) ................................................................  4 ,5 ,12

Andrews v. American Tel. & Tel. Co.,
95 F.3d 1014 (11th Cir. 1996) ............................................................ 4, 5

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Cases (continued):

Clark v. Universal Builders, Inc.,
501 F.2d 324 (7th Cir.), cert, denied, 419
U.S. 1070 (1974) .................................................................................... 12

Concerned Tenants Ass'n v. Indian Trails Apartments,
469 F. Supp. 522 (N.D. 111. 1980) .......................................................  12

Cox v. American Cast Iron Pipe Co.,
784 F.2d 1546 (11th Cir.), cert, denied, 479
U.S. 883 (1986) .................................................................................  6, 11

Dolgow v. Anderson,
43 F.R.D. 472 (E.D.N.Y. 1968) .......................................................... 6

Franks v. Bowman Transp. Co.,
424 U.S. 747 (1976) ............................................................ 6, 7n. 10, 14

Holmes v. Continental Can Co.,
706 F.2d 1144 (11th Cir. 1983) ................................................  2, 3, 8, 9

International Bhd. of Teamsters v. United States,
431 U.S. 324 (1977) .........................................................  6, 7, 8, 10, 14

Jenkins v. Raymark Industries, Inc.,
782 F.2d 468 (5th Cir. 1986) ..............................................................  14

Kerr v. City of West Palm Beach,
875 F.2d 1546 (11th Cir. 1989) ............................................................ 2

Kirkpatrick v. J.C. Bradford & Co.,
827 F.2d 718 (11th Cir. 1987) ..............................................................  3

Nichols v. Mobile Bd. of Realtors, Inc.
675 F.2d 671 (5th Cir. Unit B 1982) ..................................................  3

Table of Citations (continued)
Page

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Cases (continued):

Rossini v. Ogilvy & Mather, Inc.,
798 F.2d 590 (2d Cir. 1986), cert, denied, 485
U.S. 959 (1988) ......................................................................................  4

Shroder v. Suburban Coastal Corp.,
729 F.2d 1371 (11th Cir. 1984) .......................................................  6, 13

Vuyanich v. Republic Nat’l Bank,
521 F. Supp. 656 (N.D. Tex. 1981) ..................................................... 7

Statutes and Rules:

Fair Housing Act of 1968,
42 U.S.C. §§ 3601 et seq......................................................................... 12

42 U.S.C. § 3613(c)(1) ..................................................................................... 12

Fed. R. Civ. P. 23(b)(2) ..........................................................................10, 11

Fed. R. Civ. P. 23(b)(3) ........................................................................ passim

Other Authorities:

110 Cong. Rec. 14270 (1964)   7

Note, Antidiscrimination Class Actions Under the Federal 
Rules of Civil Procedure: The Transformation of 
Rule 23(b)(2), 88 Yale L.J. 868 (1979) .............................................. 3

Gerald E. Rosen, Title VII Classes and Due Process:
To (b)(2) or not To (b)(3), 26 Wayne L. Rev.
919 (1980)   3

Table of Citations (continued)
Page

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CERTIFICATE OF TYPE SIZE AND STYLE

Pursuant to Rule 28-2(d) of the Circuit Rules of the United States Court 

of Appeals for the Eleventh Circuit, the undersigned counsel certifies that 14 

point Dutch Roman was the size and style of type used in the Brief for 

Amicus Curiae in Support of Suggestion of Rehearing En Banc.

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BRIEF OF AMICUS CURIAE
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.

IN SUPPORT OF SUGGESTION OF REHEARING EN BANC

Statement of the Issues

Whether a class action may be certified under Fed. R. Civ. P. 23(b)(3) 

in a case involving allegations of a nationwide policy or practice of racial 

discrimination on the part of a motel chain even though the rights of class 

members to damages will depend upon the individual circumstances 

surrounding their requests for service at one or more facilities associated with 

the chain.

Summary of the Argument

The panel held that, for purposes of class certification under Fed. R. 

Civ. P. 23(b)(3), the common issue of whether Motel 6 has a practice or policy 

of racial discrimination does not predominate over questions relating to the 

circumstances under which individual class members may have sought services 

at Motel 6 facilities. In the panel’s view, because individual class members’ 

entitlement to damages will not be solely determined by the question whether 

Motel 6 has a practice or policy of racial discrimination but will also require 

resolution of individual factual issues, the existence of such a policy or practice 

will be irrelevant to the plaintiffs’ claims. While the panel makes a passing 

reference to manageability concerns, its ruling rests upon a broad -  and 

erroneous -  conclusion that the question whether Motel 6 maintained a



national policy of racial discrimination could not have sufficient predominance 

in this case to justify class treatment.

The panel’s ruling turns the Rule 23(b)(3) inquiry on its head and 

establishes a principle that could be broadly applied to defeat class action 

treatment of a wide variety of civil rights cases, whenever damages relief as 

well as injunctive remedies are sought. The panel’s error warrants rehearing 

en banc by this Court.

ARGUMENT

I. Rehearing En Banc Should Be Granted Because The Panel Erred In 

Holding That Common Questions Do Not Predominate In A Class 

Action Alleging A Nationwide Policy And Practice Of Racial 

Discrimination.

A. The Predominance Requirement is Satisfied

This Circuit has applied the terms of Rule 23(b)(3) and held that in 

order for a class action to be certified under the rule, "[cjommon questions 

must predominate over any questions that affect individual parties, and the 

class device must be superior to all other available methods for the fair and 

efficient adjudication of the dispute." Holmes v. Continental Can Co., 706 F.2d 

1144, 1156 (11th Cir. 1983). See also Kerr v. City o f West Palm Beach, 875 F.2d 

1546, 1557-58 (11th Cir. 1989) ("‘the issues in the class action that are subject 

to generalized proof, and thus applicable to the class as a whole, must

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predominate over those issues that are subject only to individualized proof") 

(quoting Nichols v. Mobile Bd. of Realtors, Inc., 675 F.2d 671, 676 (5th Cir. 

Unit B 1982)). Determining whether a common issue predominates 

necessarily involves an inquiry into the factual and legal claims of the 

individual class members’ cases. It is axiomatic that some of the facts 

underlying the claims of individual class members may vary, but this does not 

preclude class treatment. In fact, Rule 23(b)(3) contemplates that the class 

members will be diverse, since "[ujnlike members of the (b)(2) class, members 

of the (b)(3) class are usually not united by an ongoing legal relationship or 

common trait that transcends the specific set of facts that gave rise to the 

litigation." "The drafters of Rule 23 envisioned the (b)(3) class as being 

‘heterogeneous in nature.’" Holmes, 706 F.2d at 1156 (citing Gerald E. Rosen, 

Title VII Classes and Due Process: To (b)(2) or not To (b)(3), 26 Wayne L. 

Rev. 919, 923 (1980) and Note, Antidiscrimination Class Actions Under the 

Federal Rules o f Civil Procedure: The Transformation o f Rule 23(b)(2), 88 Yale 

L.J. 868, 876 (1979).

Thus, the mere existence of factual differences among individual class 

members does not justify a finding that the common issues do not 

predominate and does not prevent class certification under Rule 23(b)(3). See 

Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 724-25 (11th Cir. 1987) ("In

view of the overwhelming number of common factual and legal issues

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presented . . .  the mere presence of' individual factual issues "could not render 

the claims unsuitable for class treatment"): Rossini v. Ogilvy & Mather, Inc., 798 

F.2d 590, 599 (2d Cir. 1986) ("Commonality was not destroyed merely because 

[a plaintiffs] individual claim also required proof of some facts that differed 

from those of the class claim"; allegations concerning the employers 

discriminatory policies constituted "common issues of law and fact [which] 

predominated over those that separated [the plaintiff] from the class"), cert, 

denied, 485 U.S. 959 (1988).

Here, the panel erred in determining that the common question whether 

or not Motel 6 has a policy or practice of discrimination does not predominate 

over the individual claims of the members of the plaintiff class for purposes 

of class certification under Rule 23(b)(3). Relying on Andrews v. American 

Tel. & Tel. Co., 95 F.3d 1014 (11th Cir. 1996), the panel held that the 

plaintiffs’ claims will require "distinctly case-specific inquiries into the facts 

surrounding each alleged incident of discrimination" and that any common 

factual claims "will require highly case-specific determinations at trial." Slip 

Op. at 14, 15. However, this case is not analogous to either Andrews or to 

Amchem Prod., Inc. v. Windsor, 117 S. Ct. 2231 (1997), upon which the panel 

relies. In Andrews, adjudication of the allegedly common question would have 

required the district court to consider the substantive law of 50 different states 

and would have required a review of various defendants’ "programs that in

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many cases ha[d] little in common . . . "Andrews, 95 F.3d at 1024. Similarly, 

Amchem involved consideration of different state laws which would apply to 

plaintiffs’ claims and their widely diverse circumstances, including varying 

levels of asbestos exposure, whether or not they had become ill, and, if so, 

with what disease. Amchem, 117 S. Ct. at 2243, 2250. The settlement 

formula, extinguishing class members’ opportunities separately to prosecute 

their claims, was the only feature that would have been common to all class 

members. In contrast, in this case, the same substantive federal law forms the 

basis of all of the claims of plaintiff class members for relief from Motel 6’s 

challenged discriminatory policy and practice.

The panel’s concern that proof of liability in this case will degenerate 

into individual adjudications of the specific factual circumstances underlying 

each member’s claim is misplaced. To the contrary, a challenge to a 

defendant’s policy of racial discrimination does not require that each class 

member offer proof of potentially divergent individual factual and legal claims 

at this stage of the litigation. The proper inquiry in the class certification 

phase is whether Motel 6 may have a policy of encouraging or tolerating 

discrimination at its motels across the country. The factual allegations 

contained in the affidavits submitted to the court below illustrate that this 

issue is common to all class members. Although there may be other factual 

questions, such as those related to specific injuries or damages of individual

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plaintiffs, which may not be common to all class members, this is not 

dispositive of the class certification issue under Rule 23(b)(3). As this Circuit 

has recognized, "[t]he fact that questions peculiar to each individual member 

of the class may remain after the common questions have been resolved does 

not dictate the conclusion that a class action is not permissible." Shroder v. 

Suburban Coastal Corp., 729 F.2d 1371,1378 (11th Cir. 1984) (quoting Dolgow 

v. Anderson, 43 F.R.D. 472, 490 (E.D.N.Y. 1968)). Indeed, this Circuit has 

held that once plaintiffs have proven the existence of a common policy of 

discrimination, the burden shifts to the defendant to prove that individual class 

members were not, in fact, victims of that discrimination. Cox v. American 

Cast Iron Pipe Co., 784 F.2d 1546, 1559 (11th Cir.) (citing International Bhd. 

of Teamsters v. United States, 431 U.S. 324, 336 (1977) and Franks v. Bowman 

Transp. Co., 424 U.S. 747, 772 (1976)), cert, denied, 479 U.S. 883 (1986).

B. Pattern and Practice Cases are Appropriate for Class Treatment

The proper analysis in this case is, therefore, analogous to the analytical 

framework defined by the Supreme Court for proving a pattern or practice of 

discrimination in employment discrimination cases under Title VII in 

Teamsters, which the Court itself recognized was not limited to the 

employment context: "There would be a pattern or practice if, for example, 

a number of companies or persons in the same industry or line of business

discriminated, if a chain of motels or restaurants practiced racial discrimination

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throughout all or a significant part o f their system . . . Teamsters, 431 U.S. at 

336 n.16 (emphasis supplied) (quoting 110 Cong. Rec. 14270 (1964).1

Under this analysis, a class of plaintiffs has the initial burden of proving 

that the alleged "unlawful discrimination has been a regular procedure or 

policy followed by an employer or a group of employers." Id. at 336, 360. In 

order to facilitate the litigation, courts bifurcate the case into liability and 

remedial phases. Id. at 361. Of course, during the liability phase, the 

defendants may challenge plaintiffs’ proof of a policy through cross- 

examination and the presentation of rebuttal evidence. Id. at 360. However, 

at this stage, plaintiffs need not present evidence that each person who will 

ultimately seek relief was a victim of the discriminatory policy, but only that 

such a policy exists. Id. See Vuyanich v. Republic Nat’l Bank, 521 F. Supp. 

656, 661 (N.D. Tex. 1981) (Higginbotham, J.) (class action treatment of 

liability issue avoids "minuet" of "proof and counterproof" for each individual 

claimant).

At the end of the liability stage, if it is determined that the defendant 

has engaged in a regular practice of discrimination, the case moves to a

1Teamsters was a suit brought by the United States Attorney General; 

however, the principles articulated in the Court’s opinion apply equally to

cases brought by private plaintiffs. See Franks, 424 U.S. at 772-73.

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remedial phase to determine the individual relief to which each plaintiff is 

entitled. Teamsters, 431 U.S. at 361, 362. In this phase, "the proof of the 

pattern or practice supports an inference that any particular employment 

decision during the period in which the discriminatory policy was in force was 

made in pursuance of that policy." Id. at 362. The presumption of 

discrimination also shifts to the defendants the burden of demonstrating that 

the individual plaintiffs were not victims of the discriminatory policy. Id. at 

362. It is at this point that the specific claims of plaintiffs are explored to 

evaluate the effect which the discriminatory policy has had on individual 

plaintiffs.

Therefore, as this Court determined in Holmes, 706 F.2d at 1157-58, 

while the liability phase "stresses claims common to the class as a whole, and 

if liability is found, results in injunctive or declaratory relief," the damages 

stage "resolves whether a particular employee is in fact a member of the 

covered class, has suffered financial loss, and thus is entitled to back pay or 

other appropriate relief."

This is precisely the process this Circuit has previously determined is 

appropriate for class actions certified under Rule 23(b)(3): there must be 

common questions which predominate over questions which affect individual 

plaintiffs, but there may also be diverse, heterogeneous claims unique to 

individual parties. Such diversity is at the heart of Rule 23(b)(3) class

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certification and this Court has endorsed the bifurcation process because it 

"reflects a sensitivity toward the heterogeneous quality of the claims resolved 

at the [damages] stage. . . Holmes, 706 F.2d at 1158.

The district court in this case had before it the sworn declarations of 

members of the putative class, describing virtually identical experiences of 

discrimination at Motel 6 facilities, which amply support an inference of a 

systematic policy or practice of discrimination by Motel 6. It is this common 

question regarding the policy of discrimination raised by this evidence that 

predominates. The fact that there may be some individual claimants with 

differing factual issues related to the damages remedy they seek does not bar 

certification of the class under Rule 23(b)(3). Rather, this Court has 

contemplated that a class certified under Rule 23(b)(3) would resolve any 

individual divergent claims at the remedy phase, not at the liability trial, as 

suggested by the panel. Thus, the fact that Motel 6 will later have the 

opportunity, in any remedial stage of the litigation, to challenge the individual 

claims of discrimination which resulted from this common policy, underscores 

the importance of considering the claims in the class context.

II. The Panel Ruling Ignores Critical Policy Considerations Justifying The 

Use Of Class Actions

The panel’s ruling represents a clear distortion of the predominance 

requirement of Rule 23(b)(3). It also disregards important policy concerns

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and threatens to undermine the ability of civil rights plaintiffs to maintain 

class actions. The decision’s application to discrimination claims is particularly 

troubling because it has the potential to preclude, or at least severely to 

restrict, within this Circuit, class certification of these claims under Rule 

23(b)(3). Moreover, by its logic the ruling could be extended to (b)(2) class 

actions in which back pay or damages is sought, contrary to the controlling 

holdings in Teamsters and Franks. In this fashion, the decision could affect 

class treatment not only of other public accommodations claims involving 

restaurants, entertainment and lodging, but also of a wide variety of claims of 

discrimination in employment, housing and education. The en banc Court 

should be convened to prevent this result by reversing the panel’s decision.

The practical effect of the panel’s decision is easy to predict. In any 

discrimination case challenging an institutional pattern or practice, the 

defendant will oppose -  and may all too often defeat -- class certification on 

the ground that the circumstances surrounding the application of the 

discriminatory policy to individual victims predominate over issues common 

to the class. Obviously, a policy or practice must be applied to individuals or 

implemented by a defendant before it is discernible and before it may cause 

harm. The defense to class certification now available under the panel’s ruling 

can be raised in virtually every case challenging such a policy or practice and 

at a minimum will preclude Rule 23(b)(3) class certification in every instance.

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The ramifications of this decision on other discrimination claims are 

obvious. For example, class claims alleging employment discrimination in 

hiring and/or promotions have long been recognized within this Circuit. See, 

e.g., Cox v. American Cast Iron Pipe Co. With the availability of compensatory 

and punitive damages under the Civil Rights Act of 1991, it is reasonable to 

expect an increase in class claims of employment discrimination that may be 

brought under both Rule 23(b)(2) and Rule 23(b)(3). Under the panel’s 

reasoning, persons moving for class certification of such claims will be forced 

to overcome the presumption that the application of the allegedly unlawful 

policy to individual victims is fraught with so many disparate factual issues that 

class certification is improper. Plaintiffs in employment cases will be faced 

with the almost insurmountable task of demonstrating that the circumstances 

surrounding the employment decisions, such as the job qualifications of 

individual class members, the number and nature of available positions, the 

qualifications necessary for those positions, whether class members applied for 

the positions, and the qualifications of other applicants for the positions, do 

not require "distinctly case-specific inquiries into the facts surrounding each 

alleged incident of discrimination." See Slip Op. at 14.

Plaintiffs seeking Rule 23(b)(3) certification for housing discrimination 

claims would fare no better. While not commonly used, Rule 23(b)(3) 

certification is available to plaintiffs bringing class claims under the Fair

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Housing Act of 1968, 42 U.S.C. §§ 3601 et seq. See, e.g., Clark v. Universal 

Builders, Inc., 501 F.2d 324 (7th Cir.), cert, denied, 419 U.S. 1070 (1974); 

Concerned Tenants Ass’n v. Indian Trails Apartments, 496 F. Supp. 522 (N.D. 

111. 1980). The availability of increased damages pursuant to the 1988 

amendments to the Act suggests that courts will increasingly characterize these 

suits as (b)(3) cases. See 42 U.S.C. § 3613(c)(1). In this Circuit, however, 

these claims will be subject to the same arguments imposed on the Jackson 

plaintiffs in this case regarding predominance and manageability. For 

example, in a case alleging discriminatory refusal to rent, the tenant class will 

be forced to demonstrate that the conditions surrounding each tenant’s 

application, such as the availability of apartments and the qualifications of the 

tenant, do not predominate over the common issue of the owner’s policy or 

practice of excluding African-American tenants. The panel’s decision severely 

threatens their ability to do so successfully.

Apart from the practical effect of the panel’s ruling on future 

discrimination cases in this Circuit, the ruling suggests a fundamental conflict 

with the long-recognized principle that class actions are an important 

mechanism for vindicating the rights of groups of persons. See Amchem, 117 

S. Ct. at 2246 (one of the core concerns behind Rule 23(b)(3) is to ensure "the 

rights of groups of people who individually would be without effective strength 

to bring their opponents into court at all") (citations omitted). This Circuit

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has recognized the importance of class actions in situations where plaintiffs 

are unable to bring individual actions, particularly civil rights suits. See 

Shroder, 729 F.2d at 1376 ("Throughout our legal history, a shortage has 

existed of plaintiffs willing and available to file civil rights class actions. The 

courts are thus, quite rightly, hesitant to deny class certification in civil rights 

cases"). The ruling here threatens the ability of victims of discrimination to 

use the class action as an effective and efficient means of challenging 

institutional discrimination made unlawful by federal civil rights laws.2 If 

victims must prove unlawful conduct through individual claims only, there will 

be little opportunity to demonstrate the existence of a discriminatory policy. 

As a result, individual plaintiffs and class members will lose the important

2The panel does not even address the fact that the class action may be the 

only means for the plaintiffs in this case and others to pursue their claims 

against Motel 6. The district court found that, due to Motel 6’s inexpensive 

rental rates, individual damages are likely to be small and below the cost of 

filing a civil action. Order Granting Jackson Plaintiffs’ Motion for Class 

Certification and Referring Petaccia Plaintiffs’ Motion for Class Certification, 

August 15, 1997, at 14-15. The district court also noted that few, if any, 

private lawyers would agree to litigate these individual actions and that 

individual plaintiffs proceeding pro se would be untenable. Id.

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advantage, provided in Franks and Teamsters and their progeny, to shift the 

burden to the defendant to prove that individuals were not subjected to the 

discriminatory policy. Individual victims thus will be precluded from 

aggregating their claims in one forum and mounting a collective challenge to 

discrimination in a manner which strengthens their individual claims. The 

panel does not address how this result could possible be superior or more 

efficient for the judicial process than maintaining this class action. See Jenkins 

v. Raymark Industries, Inc., 782 F.2d 468, 473 (5th Cir. 1986).

For the reasons stated above and based on the authorities cited, 

plaintiffs-appellees’ Suggestion of Rehearing En Banc should be granted.

CONCLUSION

Elaine R. Jones 
Director-Counsel

NAACP Legal Defense &
Theodore M. Shaw 
Norman J. Chachkin 
NAACP Legal Defense & Washington, D.C. 20005 

(202) 682-1300

1275 K Street, N.W., Suite 301
Educational Fund, Inc.

Educational Fund, Inc. 
99 Hudson Street, 16th fl. 
New York, N.Y. 10013 
(212) 219-1900

Attorneys for Amicus Curiae

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Certificate of Service

I hereby certify that on this 30th day of December, 1997,1 served a copy 

of the foregoing Motion for Leave to File and Brief of Amicus Curiae NAACP 

Legal Defense & Educational Fund, Inc. in Support of Suggestion of 

Rehearing En Banc upon counsel for the parties to this appeal, by depositing 

the same in the United States mail, first-class postage prepaid, addressed as

follows:

William O. Bittman, Esq. 
Reed Smith Shaw & McClay 
1301 K Street, N.W.
East Tower - Suite 1100 
Washington, D.C. 20005

Kent Spriggs, Esq.
John C. Davis, Esq.
Spriggs & Johnson 
324 West College Avenue 
Tallahassee, Florida 32301

Craig A. Hoover, Esq.
Steven J. Routh, Esq.
Audrey J. Anderson, Esq.
Jonathan S. Franklin, Esq.
Hogan & Hartson L.L.P.
555 Thirteenth Street, N.W. 
Washington, D.C. 20004

Edward M. Ricci, Esq.
Theodore J. Leopold, Esq.
Ricci, Hubbard, Leopold & Frankel 
United National Bank Building 
1645 Palm Beach Lakes Boulevard 
W. Palm Beach, Florida 33402

Charles Wachter, Esq. 
Fowler, White, Gillen, Boggs 

Villareal and Banker. P.A. 
P.O. Box 1438 
501 E. Kennedy Boulevard 
Tampa, Florida 33601

Neil Chonin, Esq.
Chonin, Sher & Navarette, P.A. 
304 Palermo Avenue 
Coral Gables, Florida 33134- 

6608

C. Oliver Burt, III, Esq. 
Lauren S. Dadario, Esq.
Burt & Pucillo 
Esperante, Suite 300 East 
222 Lakeview Avenue 
W. Palm Beach, Florida 33401

Avis E. Buchanan, Esq. 
Washington Lawyers’ 

Committee for Civil Rights 
and Urban Affairs 

1300 19th Street, N.W., #500 
Washington, D.C. 20036

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Michael C. Addison 
Law Firm of Michael C. Addison 
100 North Tampa Street 
Suite 2175
Tampa, Florida 33602-5145

Norman J/Chachkin