The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
The plaintiffs in this case are pilots currently or formerly employed by United Airlines, Inc. (United) who contend, on behalf of themselves and a certified class, that their union, the Air Line Pilots Association International (ALPA), breached its duty of fair representation under the Railway Labor Act, 45 U.S.C. § 152 (RLA). ALPA has moved to decertify the class. For the reasons set forth below, the Court denies ALPA's motion. The Court also directs the parties to submit for Court approval new proposed notices to send to class members consistent with section two of the following discussion.
ALPA is a labor union subject to the provisions of the RLA that functions as the bargaining representative for pilots employed by United. The decisions challenged in this lawsuit were made by ALPA's United Airlines Master Executive Council (MEC). Beginning in 2001, United encountered financial difficulties that ultimately resulted in its being reorganized in bankruptcy. As part of that bankruptcy, United terminated aspects of its pilots' pension plan, with ALPA's consent. In return, the pilots received the proceeds of $550 million in convertible notes from United.
ALPA, through the MEC, was tasked with determining a method for dividing the note proceeds among the pilots. The MEC eventually selected a method referred to by the parties as GAP 2. GAP 2 divided the note proceeds based on each pilot's lost accrued benefits and projected lost future benefits. The MEC also considered, but ultimately rejected, another methodology called GAP 1, which considered only benefits that had already been earned; in other words, it did not account for lost future benefits. Plaintiffs contend that ALPA breached its duty of fair representation by adopting the GAP 2 methodology.
In July 2007, the Court certified "a class of United pilots active as of January 1, 2005 who would have received more from the allocation of the note proceeds under the GAP 1 methodology than under the GAP 2 methodology used by ALPA." Mansfield I, 2007 WL 2048664, at *7. The Court concluded that the requirements of Rule 23(a) were satisfied and certified the class pursuant to Rules 23(b)(1) and 23(b)(3). Id.
In February 2009, following extensive and protracted discovery, ALPA learned that plaintiffs intend to pursue alternative theories at trial. Though it appears plaintiffs will continue to argue primarily in favor of GAP 1, they also intend to present the jury with three other alternatives, which the parties refer to as GAP 3, modified GAP 2 contract length, and modified GAP 2 age 60 projection. ALPA moved to bar plaintiffs from presenting alternatives to GAP 1. The Court denied that motion but noted a potential problem with plaintiffs' plan to offer multiple theories of liability and damages.*fn2
Specifically, some class members fare better under GAP 1 than under the other theories, under which some members might receive nothing; in addition, some class members would fare better under one or more of the alternate theories, as opposed to GAP 1, the main theory plaintiffs intend to pursue at trial. This arguably presents a risk of an intra-class conflict and a potential conflict of interest for class counsel. The parties have also learned, based on refined analysis stemming from information obtained in discovery, that some pilots originally believed to be class members (and who received notice of the class action in 2007) are actually outside the class and that some pilots initially believed to be outside the class are in fact members.
To deal with these issues, the Court entered an order on May 14, 2009 directing plaintiffs' counsel to send new notices to three groups of pilots: (1) original class members who would not benefit from one of plaintiffs' damage theories; (2) pilots newly identified as being part of the certified class; and (3) pilots originally identified as part of the class but now identified as not meeting the class definition. ALPA subsequently filed a motion to decertify the class. The Court deferred sending the new class notices until it had ruled on the motion to decertify. The Court then deferred ruling on the motion to decertify until after consideration of ALPA's and United's summary judgment motions. Having denied the latter motions, the Court now returns to the motion to decertify and to the issue of sending out a new class notice.
ALPA contends that the plaintiff class should be decertified due to intra-class conflicts relating to the alternate theories proffered by plaintiffs. This contention implicates the requirements of Rule 23(a)(4). According to ALPA, the class representatives, who would fare best under GAP 1, cannot adequately represent all class members, some of whom would be better off if a jury adopted one of the alternative damage theories.
ALPA correctly notes that "[a] class is not fairly and adequately represented if class members have antagonistic or conflicting claims." Retired Chicago Police Ass'n. v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993). That said, the fact that some individual plaintiffs would fare better under alternative theories and that some class members might receive no recovery under one of those alternatives does not render their claims "antagonistic or conflicting." As plaintiffs point out, the starting point and the common issue of overwhelming importance for every class member is plaintiffs' contention that ALPA's adoption of the GAP 2 methodology breached the duty of fair representation. That contention by plaintiffs unites them, no matter which theory (GAP 1 or an alternative) benefits the each individual class member the most. See Bertulli v. Indep. Ass'n of Continental Pilots, 242 F.3d 290, 297-98 & n.33 (5th Cir. 2001) (concluding that class representatives' interests were aligned with entire class of pilots where all class members suffered loss of seniority due to union's actions, even though individual harm as a result of the loss of seniority might vary). The fact that the class was defined to include persons who would receive more under plaintiffs' primary theory of recovery, GAP 1, than under GAP 2, minimizes any intra-class conflict or antagonism, which is confined to the issue of plaintiffs' alternative theories. Given the way the class is defined, every class member will benefit if plaintiffs succeed on their primary theory.
Though all class members have an interest in presenting this case in a manner that would lead a jury to conclude that ALPA's selection of GAP 2 violated the RLA, some differences exist among them with respect to the most desirable alternative theory to GAP 2. Rule 23, however, provides a mechanism by which the Court can ensure adequate representation of all class members without decertifying the class. Rule 23(d) permits the Court to require that notice be sent "to protect class members." Fed. R. Civ. P. 23(d)(1)(B). In cases certified under Rule 23(b)(3), as this one is, class members must also receive notice providing them an opportunity to opt out of the class. Fed. R. Civ. P. 23(c)(2)(B)(v). Such notice, when utilized, provides "adequate protection from any potentially antagonistic interest between class members." Williams v. Burlington N., Inc., 832 F.3d 100, 104 (7th Cir. 1987) (noting that such measures can address "the prime concern . . . [of] the adequacy of representation"); see also Bertulli, 242 F.3d at 298 (noting availability of opt out to cure objections of "dissatisfied" class ...