The opinion of the court was delivered by: DUFF
BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE
This case is one in which this court must employ stern measures to protect the interests of an inadequately represented class. This court's action comes on the heels of a motion for summary judgment by J.C. Penney Company, a motion that makes this court wonder if Penney's attorneys have read Rule 56, Fed.R.Civ.P. The attorneys for the plaintiff class in turn have responded to the motion in seeming ignorance of what it takes to avoid summary judgment.
Many of the facts and most of the procedural history of this case appears in Colby v. J.C. Penney Co., Inc., 811 F.2d 1119 (7th Cir. 1987). Since that decision, Penney amended its affirmative defenses to add one defense under the Bennett Amendment to Title VII, codified at 42 U.S.C. § 2000e-2(h) (1982). It then moved for summary judgment on the class's Second Amended Complaint; the class filed a Third Amended Complaint in response. That complaint alleges that Penney's medical and dental plans violate Title VII because the plans' "head-of-household" rule treats men and women disparately, or at least has a disparate impact upon women.
Penney's present motion essentially repeats the arguments that Penney presented before the Seventh Circuit in Colby. There are some differences, of course: when the Seventh Circuit was reviewing Judge Parsons' decision in this case, the Sixth Circuit had not completed its review of E.E.O.C. v. J.C. Penney Co., Inc., 632 F. Supp. 871 (E.D. Mich. 1985). Judge Parsons relied on the Michigan district court's decision; Penney wants this court to rely on the Sixth Circuit's view of E.E.O.C. as presented in E.E.O.C. v. J.C. Penney Co., Inc., 843 F.2d 249 (6th Cir. 1988). Penney also avoids using the term "stare decisis" in urging the court to follow the Sixth Circuit in E.E.O.C. and the Ninth Circuit in Wambheim v. J.C. Penney Co., Inc., 705 F.2d 1492 (9th Cir. 1983). Instead, Penney asks this court to give these decisions "most respectful consideration," contending that they are "highly persuasive" and are owed a "heightened degree of deference."
Penney does little more than this, and therein lies part of this court's difficulty with this motion. As the Seventh Circuit noted before remanding this case to this court, were this court merely to cite to E.E.O.C. and Wambheim, but not analyze their merits, this court would not discharge its judicial responsibilities. Penney expends little effort to explain why this court should follow E.E.O.C. and Wambheim. It provides plenty of arguments as to why it would be silly for this court to ignore those decisions, and it plaintively asserts that were this court to disagree with them, Penney would face "irreconcilable and inconsistent obligations." But Rule 56(c), Fed.R.Civ.P., says nothing about a party's right to summary judgment to avoid possibly inconsistent obligations. Rather, the rule provides that
the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
These errors pale in comparison to those of the attorneys representing the class. In opposition to Penney's motion, these attorneys filed a ten-page brief. They devoted five pages to telling the court what the Seventh Circuit made abundantly clear in Colby: E.E.O.C. and Wambheim are not stare decisis on the class's claims. They then spent nearly four pages more demonstrating that the Bennett Amendment issues in this case are open ones in this Circuit, and suggesting "perhaps by the time this case goes to trial, either the Supreme Court or the Seventh Circuit will have definitely resolved" some of them. See Plaintiff's Brief in Opposition, 7. In the last page the class moves for sanctions under Rule 11, accusing Penney's motion of not being well-grounded or properly motivated. What is missing from the brief, however, is any argument as to how this court should resolve unsettled issues of law, or any challenge to Penney's facts.
In ordinary adversary proceedings, the court would hold the parties to their attorney's mistakes. But this case is not ordinary: this is a class action proceeding under Rule 23, Fed.R.Civ.P. The court in class actions has the duty to insure that the interests of absent class members are fairly represented. This stems from the nature of class litigation, which makes res judicata for all members of the class the judgment rendered in the case. Given this, it would be a denial of due process for this court to enter judgment while leaving the interests of the absent members unprotected. See Hansberry v. Lee, 311 U.S. 32, 42-43, 85 L. Ed. 22, 61 S. Ct. 115 (1940). The court's duty to protect the class lasts throughout the conduct of the case. See General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 72 L. Ed. 2d 740, 102 S. Ct. 2364 (1982) (modification of class certification order appropriate to insure "actual, not presumed, conformance with Rule 23(a)"); Hervey v. City of Little Rock, 787 F.2d 1223, 1227 (8th Cir. 1986) (court's duty to insure compliance with Rule 23(a) continues even after certification); Eggleston v. Chicago Journeymen Plumbers, Etc., 657 F.2d 890, 896 (7th Cir. 1981) (court may act to change a previously certified class if later events prove original certification was improvident); Johnson v. Shreveport Garment Co., 422 F. Supp. 526 (W.D. La. 1976), aff'd, 577 F.2d 1132 (5th Cir. 1978) (court's obligation to examine adequacy of representation of class persists until judgment on merits rendered ".
Rule 23(a) sets forth four prerequisites before persons can sue as class representatives. The most important of these prerequisites is the fourth, that "the representative parties will fairly and adequately protect the interests of the class." The court in Eisen v. Carlisle & Jacquelin, 391 F.2d 555, 562 (2d Cir. 1968), listed as "an essential concomitant of adequate representation . . . that the party's attorney be qualified, experienced, and generally able to conduct the proposed litigation." Judge Stagg in Johnson, 422 F. Supp. at 535, perceptively observed:
As Eisen , Johnson [v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969)], and Gonzales [v. Cassidy, 474 F.2d 67 (5th Cir. 1973)] insinuate, usually the degree of representation by the named party will be coextensive with the preparation and presentation of the named party's attorney. Moreover, by qualified counsel the cases mean something more than an attorney admitted to practice before the particular federal court hearing the case. Counsel must have sufficient experience and training to satisfy the trial court that he or she would be a strenuous advocate for the class. Counsel need not come to court with a resume and character references with which to prove his effectiveness; rather, his or her conduct in pretrial matters, discovery and the trial itself will be evidence of his or her capability adequately to represent the class.
In Johnson, the court determined that the plaintiff's counsel did not fairly or adequately represent the class after having observed the counsel through trial. The court was thus able to consider the counsel's performance in pretrial matters, which was good; discovery, where counsel "failed" the class; and at trial, where counsel performed poorly, meagerly, and inadequately. See Johnson, 422 F. Supp. at 536-41. The court need not wait for repeated demonstrations of ineffectiveness, however, in order to determine that counsel has not met the standards of Rule 23(a) -- especially when one error will irreparably harm the interests of the class. See, for example, Gonzales, 474 F.2d at 74-77 (representative's failure to appeal judgment that disadvantaged some of the members of the class indicates his representation was inadequate). Such is the type of failure presented by the class's attorney on this motion. See Rule 56(e) ("If the adverse party does not . . . respond [to the moving party's uncontested facts], summary judgment, if appropriate, shall be entered against the adverse party.") (emphasis added).
The court is thus left with a choice. It could choose to rule on the merits of Penney's motion, and leave it to any member of the class who feels aggrieved by this court's decision to challenge its res judicata effect elsewhere. See, for example, Gonzales, 474 F.2d at 67 (second class representative challenged adequacy of representation in first class action in refuting later claim of res judicata). The court also could decertify this class and rule on the merits of Penney's motion to as Diane Colby, the class's current representative. The Seventh Circuit prefers the latter route in title VII cases. See Ekanem v. Health & Hosp. Corp. of Marion Cty., Ind., 724 ...