In Johnson v. Meriter Health Services Employee Retirement Plan, ___ F.3d ___ (7th Cir. Dec. 4, 2012), the Seventh Circuit (Judge Posner) affirmed class certification under Rule 23(b)(2) of various claims seeking reformation of a defined benefit pension plan under ERISA. The opinion has some interesting language on subclasses as well as on Dukes, which Judge Posner distinguishes.
Meriter argues that because the subclasses make so many different claims, the class action does not satisfy the requirement of Rule 23(b)(2) that the defendant have “acted . . . on grounds that apply generally to the class.” The requirement applies to subclasses, however, rather than to the class action out of which the subclasses have been carved. “[T]he fact that a class is overbroad and should be divided into subclasses is not in itself a reason for refusing to certify the case as a class action.” Culver v. City of Milwaukee, 277 F.3d 908, 912 (7th Cir. 2002). One can if one wants think of this class action as actually 10 separate class actions and apply the standard in Rule 23(b)(2) to each of them—and each of them satisfies the standard.
Slip op. at 9. The discussion of Dukes at pp. 10-17 of the slip opinion is worth a read. The whole thing makes me nostalgic because I wrote my law review article on an ERISA issue and today is probably the first time since then that I have had occasion to type the phrase "defined benefit pension plan."