Posted by Ilya Somin:
The Ladies Night Case and the Rules for Class Action Lawsuits:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184469892
In my last post, I consider the constitutional flaws in attorney Roy
Hollender's suit claiming that ladies nights at night clubs are
unconstitutional sex discrimination. In this post, I explain why his
proposed lawsuit also violates the rules government class actions.
According to the [1]National Law Journal, Hollender is "seeking to be
named class representative for all men charged more money or burdened
by stricter time restraints than women at [four New York night] clubs
over the last three years."
A class action is a law suit where one "named plaintiff" represents
the interests of other individuals who are not directly involved in
the case, but have suffered from the same allegedly illegal behavior
that the plaintiff is seeking to prevent or rectify. Under the Federal
Rules of Civil Procedure, a class can only be certified by a district
court if it meets the standards set out in [2]FRCP Rule 23. In this
case, the crucial requirement is Rule 23(A)(4), which requires the
court to ensure that the class representative "will fairly and
adequately protect the interests of the class."
Hollender clearly fails to meet this requirement because many of the
members of the class in question ("men charged more money or burdened
by stricter time restraints than women" at the night clubs in
question) actually benefit from these practices. At the risk of
belaboring the obvious, a key purpose of ladies nights at night clubs
is to benefit (heterosexual) men. Many night clubs and bars become
relatively unnappealing to men because the male-female ratio is too
high, reducing male patrons' chances of picking up a date. By
attracting more women, ladies' nights improve the dating odds for male
patrons. To be sure, there are men such as Hollender who decry ladies
nights as unconsciable discrimination. But many of the men belonging
to the class specified in Hollender's suit probably prefer a night
club with ladies night that increases the percentage of female
customers to a nondiscriminatory policy that results in a more
unbalanced male-female ratio. Many, perhaps the vast majority, of the
men in the class Hollender proposes to represent have interests
diametrically opposed to the result he seeks to achieve. For that
reason, the district court should refuse to certify his proposed
class.
References
1. http://www.law.com/jsp/article.jsp?id=1184144791036&rss=newswire
2. http://www.law.cornell.edu/rules/frcp/Rule23.htm
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