Impact Fund & AMICI Urge Sixth Circuit to Affirm Class Certification in Discriminatory Water Billing Case

Megan Flynn, Law Fellow

In October 2024, the Impact Fund and fellow amici Bet Tzedek Legal Services, Centro Legal de la Raza, Legal Aid at Work, and Public Counsel, filed a brief urging the Sixth Circuit to uphold the federal district court’s certification of a class of Black Cleveland residents who brought a lawsuit alleging discriminatory water billing practices by the City.   

The plaintiffs, represented by NAACP Legal Defense Fund, filed a class action claiming that Cleveland carries out its water billing practices in a way that discriminates based on race in violation of the U.S. Constitution, the federal Fair Housing Act, and Ohio law. The case is Pickett v. City of Cleveland, No. 1:19-CV-02911-SO (N.D. Ohio Dec. 18, 2019).

After the district court certified four classes, Cleveland filed a Rule 23(f) petition asking the Sixth Circuit to grant interlocutory review of certification of one of the classes, comprised of Black homeowners on whose properties Cleveland had placed liens due to overdue water bills. The Sixth Circuit granted the petition for review. On appeal, the City argues that the class definition improperly includes homeowners who had not necessarily been foreclosed upon, and that its placement of a lien, without a resulting foreclosure, does not cause harm sufficient to establish standing to sue in federal court.   

The City’s position would require plaintiffs to establish at the class certification stage that every class member has suffered a cognizable harm. Our amicus brief emphasizes that the City’s argument is inconsistent with Article III, Sixth Circuit precedent, and the purpose of class actions, which are a procedural mechanism enabling courts to efficiently decide legal claims common to a group of people at the same time rather than on a one-by-one basis.

Pickett Team - Avery Friedman (legal), Albert Pickett (plaintiff), Jennifer Holmes (legal), Jarome Montgomery (plaintiff), and Tiniya Shepherd (plaintiff).

Our amicus brief explains that standing at the class certification stage is determined by looking at the named plaintiffs. While Cleveland relies on the 2021 Supreme Court decision TransUnion v. Ramirez, 594 (U.S. 413 (2021), which held that every class member must establish injury in order to recover individual damages, TransUnion did not alter the long-established standing analysis at the class certification stage. Demonstrating that the named plaintiffs have suffered an injury satisfies the Article III requirement that federal courts hear only actual cases or controversies.   

We also argued that the district court appropriately exercised its discretion in finding that potential inclusion of uninjured class members did not defeat a finding of predominance under Rule 23(b)(3). For class certification in cases where plaintiffs seek money damages, Rule 23 requires that common questions of fact and law predominate over individualized questions, so that it is efficient for the case to proceed as a class action. A court may find that common questions predominate even when there are individualized questions to be answered at a later phase of litigation. In this case, even if the court may ultimately have to conduct individualized inquiries into whether and to what extent each class member suffered an injury, such questions do not preclude the court from determining that common questions of law predominate in the action. 

The Impact Fund is grateful to join with our fellow amici to support the Pickett plaintiffs and urge the Sixth Circuit not to raise the barriers for plaintiffs pursuing class actions. Preserving the established standing and predominance standards will help ensure that class actions remain a viable mechanism for plaintiffs seeking justice.