In Pickett v. City of Cleveland, the defendant appealed the district court’s certification of a class of Black homeowners or residents who had been obligated to pay certain debts to a water utility that were secured by their property, pursuant to both Rule 23(b)(2) and Rule 23(b)(3). A panel of the Sixth Circuit unanimously affirmed the class certification, agreeing that all the requirements of Rule 23(b)(2) and Rule 23(b)(3) certification had been satisfied.
Writing for the Court, though, Judge Clay noted that the defendant had not contested certification of the Rule 23(b)(2) injunctive relief class in either its district court opposition or in its petition for appellate review, and had only made a “skeletal” argument about the Rule 23(b)(2) certification in its appellate brief. The opinion nonetheless addressed the requirements for 23(b)(2), and found that they were satisfied.
Concurring on behalf of herself and Judge Griffin, Judge Gibbons wrote separately to explain why, in her view, a defendant cannot forfeit its objection to certification of a Rule 23(b)(2) class, since the requirements of the Rule seek to protect absent class members- not the defendants.
