Brief in Support of Motion for Class Certification — No. 4:21-cv-00677 (Dkt. 5, N.D. Tex.)
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A brief supporting a motion for class certification in Blessed Cajuns, LLC v. Guzman, Case No. 4:21-cv-00677-O, in the U.S. District Court for the Northern District of Texas, dated May 23, 2021. The plaintiffs seek a Rule 23(b)(2) class of restaurant owners and restaurants not prioritized for Restaurant Revitalization Program relief, which they say is race or sex discrimination by the Small Business Administration under section 5003 of the American Rescue Plan Act. It cites the SBA's May 18, 2021 announcement of 303,000 applications and calculates the non-prioritized 43 percent at approximately 130,290 applicants, a class of at least 100,000. It argues commonality, typicality and adequacy, says class discovery is not needed, and seeks a classwide injunction against the prioritization. The 8-page brief is signed by Jonathan F. Mitchell.
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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
Blessed Cajuns, LLC, et al.,
Plaintiffs,
Case No. 4:21-cv-00677-O
v.
Isabella Casillas Guzman, et al.,
Defendants.
BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
Gene P. Hamilton Jonathan F. Mitchell
Virginia Bar No. 80434 Texas Bar No. 24075463
Vice-President and General Counsel Mitchell Law PLLC
America First Legal Foundation 111 Congress Avenue, Suite 400
300 Independence Avenue SE Austin, Texas 78701
Washington, DC 20003 (512) 686-3940 (phone)
(202) 964-3721 (512) 686-3941 (fax)
gene.hamilton@aflegal.org jonathan@mitchell.law
Charles W. Fillmore Robert Henneke
H. Dustin Fillmore Texas Bar No. 24046058
The Fillmore Law Firm, L.L.P. Texas Public Policy Foundation
201 Main Street, Suite 801 901 Congress Avenue
Fort Worth, Texas 76102 Austin, Texas 78735
(817) 332-2351 (phone) (512) 472-2700 (phone)
(817) 870-1859 (fax) rhenneke@texaspolicy.com
chad@fillmorefirm.com
dusty@fillmorefirm.com
TABLE OF CONTENTS
Table of contents ............................................................................................................... i
Table of authorities ........................................................................................................... ii
I. The Court should certify the proposed class under Rule 23(b)(2)........................... 1
A. The proposed class is so numerous that joinder of all members is impractical ........ 1
B. There are questions of law or fact common to the members of the class ............ 2
C. The plaintiffs’ claims are typical of the claims of the class ................................... 3
D. The plaintiffs’ will fairly and adequately protect the interests of the class ............ 4
E. The proposed class satisfies Rule 23(b)(2) ......................................................... 4
II. Class discovery is not needed ................................................................................. 5
Conclusion ....................................................................................................................... 6
Certificate of conference ................................................................................................... 7
Certificate of service ......................................................................................................... 8
brief in support of motion for class certification Page i of ii
TABLE OF AUTHORITIES
Cases
Amchem Prods., Inc. v. Windsor,
521 U.S. 591 (1997) .................................................................................................... 4
In re Deepwater Horizon,
739 F.3d 790, 812 (5th Cir. 2014) ............................................................................... 3
In re Nat’l Football League Players Concussion Injury Litig.,
821 F.3d 410, 426 (3d Cir. 2016) ................................................................................ 1
James v. City of Dallas,
254 F.3d 551, 571 (5th Cir. 2001) ............................................................................... 3
M.D. v. Perry,
675 F.3d 832 (5th Cir. 2012) ................................................................................... 3, 5
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) ............................................................................................ 2, 3, 5
Statutes
42 U.S.C. § 1988(b) ......................................................................................................... 5
Rules
Fed. R. Civ. P. 23(b)(2) ................................................................................................ 4, 5
Local Rule 23.2(b)(1) ...................................................................................................... 2
Local Rule 23.2(b)(3) ...................................................................................................... 1
Local Rule 23.2(c) ............................................................................................................ 4
Local Rule 23.2(d) ........................................................................................................... 6
Local Rule 23.2(e)............................................................................................................ 6
Local Rule 23.2(f) ............................................................................................................ 5
Local Rule 23.2(g) ........................................................................................................... 5
brief in support of motion for class certification Page ii of ii
The plaintiffs respectfully move to certify a class under Rule 23(b)(2). The named
plaintiffs represent the proposed class in this action, and it consists of “all restaurant
owners and restaurants in the United States who are encountering or who will en-
counter race or sex discrimination from the Small Business Administration on account
of section 5003 of the American Rescue Plan Act.”
The common characteristics of these class members is that they are all restaurant
owners or restaurants who suffered losses in revenue due to the COVID-19 pandemic
and who qualify for relief under the terms of the Restaurant Revitalization Program.
See Local Rule 23.2(b)(3). The distinguishing characteristics are that the restaurants
they own — or the restaurants themselves — are not majority owned by racial or ethnic
minorities or women, and because of this their applications for relief under the Res-
taurant Revitalization Program will not be prioritized by the Small Business Admin-
istration. See id.
I. The Court Should Certify the Proposed Class Under Rule
23(b)(2)
A party that moves for class certification must satisfy each requirement of Rule
23(a) and at least one subdivision in Rule 23(b). The proposed class meets each of
these requirements.
A. The Proposed Class Is So Numerous That Joinder of All Members
Is Impractical
The number of restaurant owners who have been or are being discriminated
against because of their race, ethnicity, or sex easily exceeds the numerosity threshold.
See In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d 410, 426
(3d Cir. 2016) (“[N]umerosity is generally satisfied if there are more than 40 class
members.”).
The defendants’ own public statements in a press release demonstrate the numer-
osity of the proposed class. On May 18, 2021, the Small Business Administration
brief in support of motion for class certification Page 1 of 8
announced that it has already received 303,000 applications for relief, representing
over $69 billion in requested funds. See Exhibit 1; see also https://ti-
nyurl.com/hm3jsf72 (last visited on May 23, 2021) (“Of the overall submitted ap-
plications, 57 percent came from women, veterans, and socially and economically dis-
advantaged business owners.”). Simple math shows that the remaining 43 percent of
non-prioritized applications represent approximately 130,290 applicants — a number
that easily clears the numerosity threshold for class certification.
The local rules of this Court require us to provide the “approximate number of
class members.” Local Rule 23.2(b)(1). It is difficult, however, to calculate the precise
number of restaurant owners who have been discriminated against — particularly
when one includes those who never applied because their applications would not have
been prioritized. Based on these data, one can confidently estimate that the proposed
class members number at least 100,000, but it is difficult to produce a more precise
calculation.
B. There Are Questions Of Law Or Fact Common To The Members
Of The Class
The Plaintiffs seek to litigate a question of law common to all class members: Is
the Small Business Administration violating the Constitution and Title VI of the Civil
Rights Act of 1964 by discriminating on account of race and sex in administering the
Restaurant Revitalization Fund? See Complaint (ECF No. 1) at ¶¶ 19–20, 26.
This question affects all class members because each of them is subject to dis-
crimination, as none of their applications will be “prioritized” for access to funds un-
der the Restaurant Revitalization Fund, and will likely be denied funding entirely
based on the limited pool of money appropriated by Congress.
Each class member will “suffer the same injury,” and that is all that needed to
satisfy Rule 23(a)(2)’s commonality requirement. Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348 (2011) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S.
brief in support of motion for class certification Page 2 of 8
395, 403 (1977)); see also Wal-Mart, 564 U.S. at 360 (“[E]ven a single [common]
question will do.” (citation and internal quotation marks omitted)); In re Deepwater
Horizon, 739 F.3d 790, 812 (5th Cir. 2014) (same). And a ruling on these issues
“will resolve an issue that is central to the validity of each one of the claims in one
stroke.” Wal-Mart, 564 U.S. at 350; see also M.D. v. Perry, 675 F.3d 832, 840 (5th
Cir. 2012).
C. The Plaintiffs’ Claims Are Typical of The Claims of The Class
The plaintiffs’ claims are more than typical: they are precisely the same as the
claims belonging all members of the proposed class. The United States Congress and
the Biden Administration have implemented a program that actively discriminates
against restaurant owners based on their race, ethnicity, and sex. See Exhibit 2; see also
http://tiny.cc/skyxtz (last visited on May 23, 2021). The interests of the plaintiffs
are aligned with those of the class, as each class member benefits from a ruling that
prevents the Small Business Administration from discriminating against them based
on these criteria. See James v. City of Dallas, 254 F.3d 551, 571 (5th Cir. 2001)
(“[T]he test for typicality is not demanding. It focuses on the similarity between the
named plaintiffs’ legal and remedial theories and the theories of those whom they
purport to represent.” (citations and quotation marks omitted)); id. (“[T]he critical
inquiry is whether the class representative’s claims have the same essential characteris-
tics of those of the putative class. If the claims arise from a similar course of conduct
and share the same legal theory, factual differences will not defeat typicality.” (citations
and quotation marks omitted)); see also Wal-Mart, 564 U.S. at 350 n.5 (“[T]he com-
monality and typicality requirements of Rule 23(a) tend to merge.” (quoting Gen. Tel.
Co. of Sw. v. Falcon, 457 U.S. 147, 157–58 n.13 (1982)).
brief in support of motion for class certification Page 3 of 8
D. The Plaintiffs Will Fairly and Adequately Protect the Interests of
The Class
The plaintiffs will fairly and adequately represent the interests of their fellow class
members, and there are no conflicts of interest between the plaintiffs and the other
members of this class.
The class members consist of all restaurant owners and restaurants in the United
States who are encountering or who will encounter race or sex discrimination from
the Small Business Administration on account of section 5003 of the American Rescue
Plan Act. There is no conceivable conflict of interest that could arise from the plain-
tiffs’ efforts to prevent the defendants from discriminating against them on a classwide
basis. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (“The adequacy
inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named
parties and the class they seek to represent.”). A classwide injunction will serve only
to protect the constitutional rights or each of the class members, as well as the rights
guaranteed under the Civil Rights Act of 1964.
The plaintiffs are appropriate class representatives because they have a vested in-
terest in ensuring the success of this litigation, and preventing the defendants from
discriminating against anyone because of their race, ethnicity, or sex. The plaintiffs’
attorneys are self-financing this litigation, and the legal issues are straightforward and
the case will not be expensive to litigate. See Local Rule 23.2(c).
E. The Proposed Class Satisfies Rule 23(b)(2)
The final criterion for class certification under Rule 23(b)(2) is that “the party
opposing the class has acted or refused to act on grounds that apply generally to the
class, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Supreme Court has
held that this requirement is satisfied “when a single injunction or declaratory judg-
ment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at 360;
brief in support of motion for class certification Page 4 of 8
see also id. at 361–62 (“[T]he relief sought must perforce affect the entire class at once
. . . .”). That is precisely what the plaintiffs request: a single injunction that stops the
defendants from discriminating against any of the class members on the basis of their
race, ethnicity, or sex. No one is seeking individualized relief for any class member or
for any subset of the class. Compare with M.D., 675 F.3d at 845 (disapproving class
certification under Rule 23(b)(2) when individualized relief was sought). The plain-
tiffs request a simple, classwide injunction that halts the prioritization of applications
and the disbursement of funds because of the applicant’s race, ethnicity, or gender.
In addition, the defendant agencies are “act[ing] . . . on grounds that apply gen-
erally to the class.” Fed. R. Civ. P. 23(b)(2). The Restaurant Revitalization Fund has
the same prioritization scheme applicable to all applicants. See Exhibit 2; see also
http://tiny.cc/skyxtz (last visited on May 23, 2021). Because this prioritization
scheme discriminates against all class members, it makes “final injunctive relief or cor-
responding declaratory relief . . . appropriate respecting the class as a whole.” Fed. R.
Civ. P. 23(b)(2); see also Wal–Mart, 564 U.S. at 360 (“Rule 23(b)(2) applies only
when a single injunction or declaratory judgment would provide relief to each mem-
ber of the class.”).
II. Class Discovery Is Not Needed
The representative plaintiffs believe that class discovery is unnecessary given that
the classes unquestionably satisfy the numerosity requirement of Rule 23(a)(1). See
Local Rule 23.2(f). The plaintiffs’ attorneys’ fees will be paid on a contingency basis
if the action is successful. See 42 U.S.C. § 1988(b); Local Rule 23.2(g). The remaining
information required by Local Rule 23.2 is inapplicable because certification is sought
solely under Rule 23(b)(2) and the representatives are not seeking damages or mon-
etary relief, so notice need not be given to absent class members. See Local Rule
brief in support of motion for class certification Page 5 of 8
23.2(e). In addition, this is not a diversity action, so there is no need to determine a
jurisdictional amount. See Local Rule 23.2(d).
CONCLUSION
The motion for class certification should be granted.
Respectfully submitted.
/s/ Jonathan F. Mitchell
Gene P. Hamilton Jonathan F. Mitchell
Virginia Bar No. 80434 Texas Bar No. 24075463
Vice-President and General Counsel Mitchell Law PLLC
America First Legal Foundation 111 Congress Avenue, Suite 400
300 Independence Avenue SE Austin, Texas 78701
Washington, DC 20003 (512) 686-3940
(202) 964-3721 (phone)
gene.hamilton@aflegal.org (512) 686-3941 (fax)
jonathan@mitchell.law
Charles W. Fillmore
H. Dustin Fillmore Robert Henneke
The Fillmore Law Firm, L.L.P. Texas Bar No. 24046058
201 Main Street, Suite 801 Texas Public Policy Foundation
Fort Worth, Texas 76102 901 Congress Avenue
(817) 332-2351 (phone) Austin, Texas 78735
(817) 870-1859 (fax) (512) 472-2700 (phone)
chad@fillmorefirm.com rhenneke@texaspolicy.com
dusty@fillmorefirm.com
Counsel for Plaintiffs and
Dated: May 23, 2021 the Proposed Class
brief in support of motion for class certification Page 6 of 8
CERTIFICATE OF CONFERENCE
I certify that I e-mailed Christopher D. Dodge, counsel for the defendants, at
8:57 p.m. pacific time on May 23, 2021, to ask his position on the motion, but I had
not yet heard back from him at the time we filed.
/s/ Jonathan F. Mitchell
Jonathan F. Mitchell
Counsel for Plaintiffs and
the Proposed Class
brief in support of motion for class certification Page 7 of 8
CERTIFICATE OF SERVICE
I certify that on May 23, 2021, I served this document through CM/ECF upon:
Christopher D. Dodge
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
(202) 598-5571
christopher.d.dodge@usdoj.gov
Counsel for Defendants
/s/ Jonathan F. Mitchell
Jonathan F. Mitchell
Counsel for Plaintiffs and
the Proposed Class
brief in support of motion for class certification Page 8 of 8
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