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Legislative Memo: Certification of Class Actions in Cases Involving Governmental Operations

This legislation would prevent state courts from denying class certification solely because a lawsuit involves government operations.

Under existing New York state court rules, courts often bar class actions that involve a government agency, reasoning that one person could bring the same suit and win relief for the entire class through the doctrine of stare decisis. In reality, however, individual suits are rarely able to deliver the same comprehensive relief as class suits.

This bill ensures that groups of citizens who seek to hold the government accountable for its actions will not be denied access to the courts under this “government operations rule” for the sole reason that the government is the subject of their complaint. Therefore, the NYCLU urges the legislature to pass this bill.

Since 1975, class actions in New York State have had to meet several requirements in order to be certified under Article 9 of the Civil Practice Law and Rules1 .

Under this bill, once a proposed class satisfied the existing Article 9 requirements, a court could not deny certification simply because the class is seeking to remedy the government’s practices rather than a private defendant’s. This legislation would bring New York in line with federal practice, under which class suits involving government operations are regularly certified as long as the class meets existing criteria.

Class actions are a critical tool where proactive steps on the part of government are required to remedy unlawful conditions. Suits brought as class actions have held government agencies accountable in numerous critical areas over the past decades. Class actions have challenged the failures of New York’s foster care system2, sought to remedy nursing home facilities’ failing health standards3, and ensured mentally ill prison inmates treatment plans upon discharge4>. When reforming government institutions to protect individual rights is the goal, class suits are necessary to establish the scope of a problem and implement a comprehensive remedy.

Allowing courts to halt class actions where plaintiffs seek to cure government inaction will not protect those potential class members whose rights continue to be violated during the period of several months to several years when a suit is pending. Even when the government immediately remedies an illegal practice following a court order, stare decisis only protects people who would bring an action after a final decision in a case.

Other New Yorkers with identical or very similar complaints would be expected to bring their own individual lawsuit to get relief. Since many class action plaintiffs are poor, elderly or disabled, it is prohibitively expensive and time-consuming for most of them to file a lawsuit on their own behalf.

Class actions involving government defendants offer a number of procedural advantages as well. A class action forum allows courts to hear from a large number of citizens in one proceeding and amass a more complete record about the practices to be remedied.

Insisting that individual plaintiffs bring separate suits not only wastes time and judicial resources, it runs the risk of creating inconsistent rulings across the state.If government defendants receive unclear instruction from courts on how to remedy unlawful conditions, it is unlikely that those conditions will be quickly and decisively fixed.

Although courts have carved out ad hoc exceptions to the government operations rule5, these exceptions are applied arbitrarily, undermining the uniform administration of justice. The fact that these exceptions exist demonstrates that many judges understand that preventing class actions in suits against the government hinders effective justice and efficient court administration. This bill would give courts and litigants clear guidance instead of forcing them to rely on haphazard case-by-case exceptions.

The decision to certify a class action should rest on whether the class satisfies the rules already laid out in existing practice rules, not on the incorrect supposition that individual cases alone will protect the rights of groups affected by an agency policy. In the interest of ensuring that New Yorkers can effectively and efficiently bring suit to demand that the government fulfill its duties, the NYCLU urges the legislature to pass A2334/S5327.


1 Under this bill, prospective classes would still need to satisfy Article 9’s numerosity, commonality, adequacy and typicality requirements, as well as demonstrate that they are “superior to other available methods” for resolution of the controversy. N.Y. C.P.L.R. 901 (McKinney 2011)

2 City of New York v. Maul, 14 N.Y.3d 499 (2010).

3 Fleming v. Barnwell Nursing Home & Health Facilities, Inc., 309 A.D.2d 1132 (3d Dep’t 2003).

4 Brad H. v. City of New York, 185 Misc. 2d 420 (Sup. Ct. N.Y. Co.), aff’d, 276 A.D.2d 440, 716 N.Y.S.2d 852 (1st Dep’t 2000).

5 These exceptions include actions where a class is primarily made up of indigent individuals, where plaintiffs seek complex, affirmative steps on the part of the government, and where a failure to obtain relief “poses some immediate threat that cannot await individual determinations.” See New York City Coal. To End Lead Poisoning v. Giuliani, 245 A.D.2d 49, 51 (1st Dep’t 1997). 

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