RIPPLE, Circuit Judge.
This case arises from the dissatisfaction of some City of Chicago employees with a settlement agreement reached in state court regarding a dispute over the terms of a health care plan offered by the City. Because the Retired Chicago Police Association v. City of Chicago action and the Ryan v. City of Chicago action are substantially similar, they were consolidated by the district court. The district court granted summary judgment against the Ryan plaintiffs on the basis of res judicata. It then denied the Retired Chicago Police Association's (RCPA) motions for preliminary injunction and for class certification, and subsequently dismissed RCPA's complaint for lack of associational standing.
A. Early History of the City's Health Care Plan
This case has a lengthy and complex procedural history, both in the Illinois state courts and in the federal district court. We shall set forth only those facts necessary for resolution of this appeal. The four pension funds here at issue, the Policemen's Annuity and Benefit Fund, the Firemen's Annuity and Benefit Fund, the Municipal Employees' Annuity and Benefit Fund, and the Laborers' and Retirement Board Employees' Annuity and Benefit Fund (the Funds) were organized under the authority of the state pension code to provide for and administer pension benefits for certain retired city employees. Since the early part of the last decade, the Funds' annuitants participated in the City's health care plan. This plan made health care coverage available for retired employees. In 1982, the City, as it had been doing periodically, increased the premium rates charged to annuitants and set a fixed premium for coverage. The state of Illinois then enacted legislation to address specifically annuitants' health benefits coverage. The legislation required the Police and Firemen's Funds to purchase group health insurance for their beneficiaries and required the City to subsidize partially the costs of annuitant health care coverage. According to the City, any premium not covered by the City's subsidy
B. The State Litigation
In 1987, the City brought suit against the Funds in state court. It sought a judgment permitting it to terminate annuitant health care coverage under its plan and declaring that it had no obligation to subsidize coverage. It also sought to recover the money it had already expended on health care benefits. See City of Chicago v. Korshak, Circuit Court of Cook County, Chancery Div. No. 87 CH 10134. The Trustees of the Funds counterclaimed and filed a motion for an injunction to bar the City's threatened termination of health care coverage.
A group of annuitants then moved to intervene in the litigation. They sought to protect the interests of the individual annuitants who participated in the City's plan by requiring that the plan be maintained as previously set by the City. On May 5, 1988, the state court granted their motion to intervene and designated these intervenors as representatives for a certified class of annuitants who had retired on or before December 31, 1987 (the 1987 or Korshak class). The RCPA also moved for intervention and class certification, but both of those motions were denied.
On May 16, 1988, the court dismissed the City's complaint, but proceeded to conduct a bench trial on the Funds' counterclaims. Before the court issued its ruling, however, the City and the Funds reached a settlement agreement in which they agreed to co-sponsor legislation that would change the Illinois Pension Code. The resulting legislation increased the amount that the Funds would contribute to the health care premium of each annuitant. It also required the City to continue to provide health care coverage through 1997 by paying at least fifty percent of the cost, an obligation that would continue to be funded by a special tax. Annuitants would be responsible for paying any costs remaining after all contributions and subsidies had been paid. If no new agreement was reached by the expiration of this legislation, the plan would return to its pre-settlement terms.
After the legislation allowing the pension changes was enacted, the state court conducted a fairness hearing in regard to the terms of the settlement agreement. At the hearing, several class members testified against the settlement and none spoke in favor of it. The annuitant-intervenors were not pleased with the terms of the settlement; their goal had been to prohibit the City from changing the terms of the health care plan for existing participants and from thereby raising the costs to each annuitant. Over these objections, the court approved the settlement agreement. The 1987 class then filed an appeal.
C. The Present Action
While the appeal was pending in the Illinois courts, the RCPA filed a class action (the RCPA claim) against the City, several city officials, and the Funds in federal district court. The proposed class comprised: "all annuitants of the City of Chicago Police, Fire, Municipal and Laborers' Pension Funds and their spouses, survivors and dependents who are current participants in the City's Annuitant Healthcare Plan" and whose participation began after December 31, 1987 (the end date of the Korshak class) and prior to August 23, 1989 (the date on which the Korshak legislation, described above, was enacted). R. 1 at 3-4. The proposed RCPA
In its complaint, the RCPA alleged that the City and the Funds had violated 42 U.S.C. § 1983 (1988) by abrogating annuitants' rights secured under the Contract Clause and the Fourteenth Amendment of the United States Constitution. In essence, the plaintiffs alleged that the settlement agreement stemming from the state litigation altered the terms of the City's health plan and the related obligations of the City and the Funds in violation of the Contract Clause, as well as the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The RCPA also asserted state breach of contract and estoppel claims, as well as violations of the Illinois Constitution. The RCPA contended that the City had promised the annuitants they would have lifetime health care coverage at unchanged rates. It further asserted that the Funds had advised annuitants that premium subsidies would be paid throughout an annuitant's retirement by his respective Fund, thus providing essentially free health care coverage for life. The annuitants would pay only for additional coverage for spouses and dependents. The RCPA alleged that these promises had been made to the annuitants in a variety of ways, through oral representations at retirement seminars, in a booklet prepared by the City to explain the benefits of its health care plan, and by word of mouth and general understanding. The RCPA sought declaratory and injunctive relief to bar the Korshak settlement from taking effect, to prohibit the City from changing the terms of annuitant health care costs under the plan, and to determine that the annuitants' premiums would be paid by the appropriate Fund. The district court stayed all proceedings until the state appeals in Korshak were resolved.
In addition to the RCPA's request for class certification, ten individual retired city employees participating as annuitants in the Police Fund (the Ahlfeld group), filed a motion for intervention and class certification, adopted the allegations of the RCPA's complaint, and averred that their claims involved and relied upon the same facts and law. R. 49 at 1-2. The court also received a separate motion for intervention and class certification by the Coalition of Active and Retired Employees Political Action Committee (C.A.R.E.P.A.C.). R. 127.
The City and the Funds claimed that the Korshak proceedings barred the RCPA's claim on the ground of res judicata. The district court disagreed and on September 10, 1991, held that the 1988 proposed class was not barred by res judicata from continuing to pursue their claims.
On September 30, 1991, the Ryan class (or 1987 class) filed a separate complaint nearly identical to that which the RCPA had filed. R. 1, Ryan v. City of Chicago, No. 91 C 6200 (N.D.Ill.). This was the identical class that had intervened in Korshak and had participated in the settlement hearing. Due to the similarities of the complaints in Ryan and RCPA and the fact that the same attorney represented both proposed classes, the two cases were consolidated by the district court. Ryan R. 10.
In February 1990, the RCPA brought its first motion for a preliminary injunction to keep the City from changing the terms of the health care plan during the litigation. This motion was held in abeyance on assurances by the City that it would treat the post-1987 annuitants (the RCPA claimants) the same as the pre-1987 annuitants. Despite these assurances, in October 1991, the City decided to change the terms of the plan. The RCPA brought another motion for preliminary injunction. The district court denied the motion without explanation and the RCPA requested reconsideration. On November 12, the City reiterated its plans to change the terms of coverage. Again the RCPA filed a motion for preliminary injunction. The court
On January 6, 1992, the district court granted the City's motion for summary judgment with respect to the Ryan claims. The court found that the Ryan plaintiffs' claims were barred by res judicata due to the binding effect of the Korshak settlement. The district court then denied the RCPA's motion for class certification. The court held that the typicality and adequacy of representation requirements for class certification were lacking. The district court also denied the motions for intervention by the Ahlfeld group and C.A.R.E.P.A.C. This denial was based on procedural grounds: (1) the motions were not accompanied by a pleading setting forth the claims on which intervention was sought and (2) the motions improperly attempted to expand the scope of the class defined in the RCPA's complaint. The RCPA moved for reconsideration and stated that it would amend its complaint to comport with the expanded class definition. The court granted the motion to reconsider, but again denied the motions to intervene and to certify the classes. The district court held that the denial to intervene mooted the potential intervenors' motions for class certification, but, in the alternative, analyzed the merits of these claims for certification while addressing the RCPA's own certification motion, which the court also denied.
The district court then questioned the RCPA's standing to maintain the action in a representational capacity for its members rather than as a class representative. The district court concluded that the organization had no standing to pursue the claim and dismissed the RCPA's complaint. In the court's view, the action required individual member participation and therefore found that associational standing was inappropriate.
Final judgment was entered for defendants on April 30, 1992. The RCPA, the putative intervenors, and the Ryan plaintiffs all appeal from that judgment.
A. Summary Judgment Based on Res Judicata and the Korshak Settlement
1. The Ryan class
To determine whether the Korshak settlement bars the Ryan claims, we must give a state court judgment the same effect that it would be given by that state. 28 U.S.C. § 1738 (1988).
The Ryan annuitants contend that the district court improperly granted summary judgment against them on the basis of res judicata. While they concede that the proposed class was a party to Korshak because the state court granted them intervention in the action, they submit that the other two required elements of res judicata are not fulfilled. First, the Ryan plaintiffs contend that no identity of cause of action exists between Korshak and the present litigation because the proposed class alleges constitutional violations which it did not allege in the previous action. The Ryan claimants also note that they now allege a breach of fiduciary duty by the Fund Trustees when they agreed to the Korshak settlement. They contend that these claims could not have been asserted in that litigation. The Ryan plaintiffs also contend that Korshak was a suit over promises that the City made to the Funds regarding payment of subsidies; here, on the other hand, they state that they are basing their claims on promises that the City made directly to the annuitants. This variance, they submit, gives rise to a different cause of action. Second, the Ryan plaintiffs assert that no final judgment on the merits of the 1987 class' claims was ever rendered in Korshak. They contend that no decision on the merits was entered by the state court because the court merely approved a settlement between the City and the Funds.
a. identity of cause of action
The Illinois Supreme Court has stated that, "`[i]f the same facts are essential to the maintenance of both proceedings or the same evidence is needed to sustain both, then there is identity between the allegedly different causes of action asserted and res judicata bars the latter action.'" Progressive Land Developers, 176 Ill.Dec. at 879, 602 N.E.2d at 825 (quoting Morris v. Union Oil Co., 96 Ill.App.3d 148, 51 Ill.Dec. 770, 421 N.E.2d 278 (1981)); see also People ex rel. Hartigan v. Illinois Commerce Comm'n, 243 Ill.App.3d 544, 183 Ill.Dec. 673, 678, 611 N.E.2d 1321, 1326 (1993) (stating that if same facts or evidence are essential to both proceedings, then identity of causes of action exists between them). The court also noted that, while one group of facts can be the basis for numerous theories of recovery, there remains only a single cause of action. Progressive Land Developers, 176 Ill.Dec. at 879, 602 N.E.2d at 825.
We agree with the district court that the Ryan cause of action arises from the same factual basis as Korshak. The same facts form the foundation of both claims, and the same evidence is essential to the resolution of both. Variance in the theory of recovery cannot turn the claim into a different cause of action. Both Korshak and Ryan involve the City's alleged obligation to pay for health care and both claims sought to maintain the 1982 level of payments and subsidies. Moreover, we also note that Illinois res judicata law bars not only those issues actually raised in the first action, but also those that could have been raised in the proceeding. Greening, 953 F.2d at 305 (setting forth Illinois law); Redfern v. Sullivan, 111 Ill.App.3d 372, 67 Ill.Dec. 166, 169, 444 N.E.2d 205, 208 (1983). All of the issues that the Ryan plaintiffs attempt to raise in this litigation could have been raised in the earlier litigation. See Welch, 907 F.2d at 720; LaSalle Nat'l Bank of Chicago v. County of DuPage, 856 F.2d 925, 930-31 (7th Cir.1988), cert. denied, 489 U.S. 1081, 109 S.Ct. 1536, 103 L.Ed.2d 840 (1989).
b. final judgment on the merits
We also agree with the district court that a final judgment on the merits was reached in Korshak. Despite the intervenors' objections in Korshak, the state court found the settlement agreement fair and entered an order approving the settlement and dismissing all claims with prejudice. R. 32 at Appendix C. "Dismissal with prejudice is deemed to be as conclusive of the rights of the parties as if the matter had proceeded to trial and had been resolved by final judgment adverse to the plaintiff." Morris v. Union Oil Co., 96 Ill.App.3d 148, 51 Ill.Dec. 770, 776, 421 N.E.2d 278, 284 (1981); see also McLain v. West Suburban Hosp. Medical Ctr., 208 Ill.App.3d 613, 153 Ill.Dec. 574, 576, 567 N.E.2d 532, 534 (1990) (stating that settlement and dismissal of claim with prejudice was an adjudication on the merits); Gillilan v. Trustees for Cent. States, Southeast and Southwest Areas Pension Fund, 183 Ill.App.3d 306, 131 Ill.Dec. 950, 957, 539 N.E.2d 303, 310 (1989) (stating that "dismissal with prejudice entered pursuant to a settlement agreement constitutes a final judgment on the merits sufficient for application of res judicata"). Because all three elements required for preclusion under Illinois law have been satisfied, summary judgment was properly entered for the City and the Funds on the Ryan claims.
2. The RCPA claims
The City and the Funds also moved for summary judgment against the RCPA based on the contention that the RCPA's claims should be barred by the res judicata effect of the Korshak agreement. The district court denied the motion. It held that an identity of parties or their privies had not been shown to exist between the Korshak proceedings and the RCPA claims. The RCPA had been denied intervention in the Korshak litigation. Moreover, the class it proposed to the district court here consisted only of annuitants who retired after December 31, 1987, the end date of the Korshak class. Thus, these annuitants had not been included as part of the intervening class in Korshak. After concluding that the RCPA had not been a party in Korshak, the district court then held that these plaintiffs had also not been in privity with a party to those proceedings; therefore, res judicata could not preclude the federal claims.
The City and the Funds now advance the argument that the RCPA is in privity with the Funds which were parties to the Korshak agreement.
We agree with our colleague in the district court that the City and the Funds have not sufficiently demonstrated that the legal interests of the Korshak parties and the putative RCPA class were sufficiently similar to constitute adequate representation by the Funds' participation. As the district court noted, the pension funds were negotiating with the City for the continuation of a health care plan. However, the Funds also had an incentive to limit the extent of their own subsidies to the City's plan. R. 89, RCPA Mem.Op. at 12. This incentive created a potential conflict of interest with the annuitants.
B. Denial of Motions to Intervene
The district court refused to grant either the motion to intervene submitted by
The putative intervenors assert that they did indeed meet Rule 24(c)'s pleading requirement because each of their motions specifically adopted the allegations of the RCPA's complaint. They claim that adoption by incorporation is a valid method by which to meet the pleading requirement because, under Federal Rule of Civil Procedure 10(c), pleadings may be adopted by reference in other motions.
Whether to permit a procedurally defective motion to intervene is within the sound discretion of the district court. In this instance, the district court refused to permit such a deviation from the requirement of the Rule. It noted that not only were the motions procedurally defective, but both motions to intervene attempted to redefine and significantly expand the scope of the class defined in the RCPA's complaint. The Ahlfeld group's motion sought intervention for plaintiffs whose benefits had vested prior to August 23, 1989. This clearly would have expanded the RCPA's proposed class which contained only those individuals who had retired and become participants prior to that date. The C.A.R.E.P.A.C. motion to intervene also sought to include all individuals who were either participating or whose benefits had vested prior to August 23, 1989. Again, the motion was an obvious expansion of the class sought by the RCPA in its complaint. These differences between the motions to intervene and the RCPA's complaint, were, in the view of the district court, too significant to allow waiver of Rule 24(c). Moreover, the district court noted that the City and the Funds had pointed out the procedural defects in the motions earlier in the litigation, but the putative intervenors had made no effort to rectify the deficiencies until their motions had been denied.
C. Denial of Class Certification
The district court denied the motions of all three groups — the RCPA, C.A.R.E.P.A.C., and the Ahlfeld group — for class certification.
The plaintiffs sought class certification under Federal Rule of Civil Procedure 23(b)(2). This subsection requires that the court find that the opposing parties' conduct or refusal to act must be generally applicable to the class and that final injunctive or declaratory relief with respect to the entire class would be the appropriate remedy. Moreover, as a preliminary requirement for any class certification, a named plaintiff must demonstrate that his motion satisfies the mandate set forth in Federal Rule of Civil Procedure 23(a): he "must meet the prerequisites of numerosity, commonality, typicality, and adequacy of representation." Harriston, 992 F.2d at 703 (citations omitted). All of these elements are prerequisites to certification; failure to meet any one of them precludes certification as a class. Id. The district court determined that the proposed RCPA class satisfied both the numerosity and commonality elements of Rule 23(a); however, it held that typicality and adequacy of representation had not been demonstrated sufficiently to allow certification.
As this court stated in De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983), the typicality requirement
(quoting H. NEWBERG, CLASS ACTIONS § 1115(b) at 185 (1977)). "The typicality requirement may be satisfied even if there are factual distinctions between the claims of the named plaintiffs and those of other class members." De La Fuente, 713 F.2d at 232. Nevertheless, for effective representation of a class, the named representatives' claims must "have the same essential characteristics as the claims of the class at large." Id.
The district court noted that the RCPA's primary assertion is that the City and the various Funds communicated to pension annuitants the availability of effectively free lifetime health care and that the annuitants relied upon those communications. These claims turn on representations allegedly made by the City and the Funds to various groups of city workers. The RCPA, however, is comprised entirely of police retirees. It is not known whether the communications allegedly made by the City and the Funds to each group of city employees regarding the health care plan were identical. The only evidence in the record pertains to police pre-retirement seminars and, even in that circumstance, it is not known whether the communications were uniformly made at every seminar. Presumably each of the other three groups of city employees had its own pre-retirement seminars and pamphlets. Appellants have not provided any evidence other than speculation that any alleged communications by the City or the Funds to the fire, laborer, or municipal annuitants were the same as those made to the police. Even among the police, the record indicates that some annuitants heard these communications at retirement seminars, some read a booklet, some heard through word of mouth, and many simply had a general impression of the benefits to which they were allegedly entitled. Some were ignorant of any alleged promises.
Because the RCPA does not include individuals from all of the fund groups and there is no indication that each of these groups was treated identically by the City or by its respective fund, its claims cannot be deemed typical of the entire proposed class. The RCPA is composed only of retired police officers, and it simply cannot be assumed, especially because these communications were for the most part verbal,
2. Adequacy of representation
Although failure to fulfill the typicality requirement of Rule 23(a) would, standing alone, invalidate class certification, the district court went on to determine that the proposed RCPA class had not demonstrated adequacy of representation. We have stated that adequacy of representation is composed of two parts: "the adequacy of the named plaintiff's counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest" of the class members. Secretary of Labor v. Fitzsimmons, 805 F.2d 682, 697 (7th Cir.1986) (en banc). Therefore, "[a] class is not fairly and adequately represented if class members have antagonistic or conflicting claims." Rosario, 963 F.2d at 1018; see also Fitzsimmons, 805 F.2d at 697 (stating same).
The district court expressed several reservations about the adequacy of class representation afforded by the RCPA. One of the key infirmities noted by the court was that the scope of the proposed RCPA class was not restricted to those members whose premiums had increased under the City's health care plan. Members who had actually benefitted from the Korshak settlement were also included in the putative class. For these members, those benefits would evaporate if the class action succeeded. For example, widows of retirees are paying less in premiums than they were before the Korshak settlement because they are now receiving subsidies. The RCPA states that no annuitant has objected to the institution of this class action. This response, however, does not resolve the potential conflicting interests that may exist among the RCPA members. The problem of actual and potential conflicts is a matter of particular concern in a case such as this one because the RCPA's complaint proposed certification under Federal Rule of Civil Procedure 23(b)(2) which does not allow class members to opt out of the class action. See R. 271, Mem.Op. at 13 n. 2.
In assessing the adequacy of representation, the district court also noted that, at the time of the Korshak settlement, RCPA Executive Secretary Richard Jones was a member of the Board of Trustees of the Police Fund, and he had participated in the Board's action in approving the settlement. In the present action, the RCPA contends that the Fund trustees breached their fiduciary duties to the annuitants by approving the settlement. Thus, noted the district court, there may also be a conflict of interest between the RCPA and one of its officers. While the RCPA stresses that it is the proposed class representative and not Jones, thereby eliminating any conflict between Jones and the putative class members, we agree with the district court that this position is troublesome. Jones is the Executive Secretary of the RCPA, the organization instituting this action. As such, a tension surely exists between his previous action and the RCPA's position in this case. For all of these reasons, we do not believe that the RCPA has established that the district court abused its discretion when it determined that the adequacy of representation criterion of the class certification requirements had not been satisfied.
Additionally, contrary to the RCPA's submission, we do not believe the district court engaged in an impermissible examination of the merits of the RCPA's claims in arriving at its denial of class certification. It is true that, as a general principle, a court is not allowed to engage in analysis of the merits in order to determine whether a class action may be maintained. Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 895 (7th Cir.1981), cert. denied, 455 U.S. 1017, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982). Nevertheless, some discovery may be necessary to determine whether a class should be certified. Id. The Supreme Court has stated:
General Tel. Co. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 2372, 72 L.Ed.2d 740 (1982). We have noted that the "boundary between a class determination and the merits may not always be easily discernible." Eggleston, 657 F.2d at 895. After reviewing the record, we do not believe that the district court transgressed this dividing line. The court correctly analyzed the class certification issue. The appellants have not demonstrated that the district court abused its discretion in refusing to grant the motions for class certification.
3. Certification of subclasses
The RCPA contends that the district court abused its discretion because it did not certify a subclass composed only of annuitants from the Police Fund.
Subclasses must satisfy the class action requirements before they may be certified. Fed.R.Civ.P. 23(c)(4). While the district court did not deny explicitly the subclass request, we believe that a fair reading of the record supports the conclusion that the court believed that, even among the retired police officers, uniformity in the alleged promises made by the City and the Funds had not been demonstrated. R. 271, Mem. Op. at 24. The district court found that sufficient evidence of the uniformity of statements formally made by City officials and the Police Fund to the police annuitants in regard to health care benefits during the time period here at issue had not been tendered by the RCPA. Moreover, as noted above, adequacy of representation was not demonstrated by the RCPA. Certification of a subclass consisting only of police annuitants would do nothing to alleviate the conflicts of interest that the district court found existed in that group. Given the limited scope of our review of a district court's denial of class or subclass certification, we do not believe that the RCPA has sufficiently demonstrated an abuse of discretion by the district court.
D. Associational Standing
We now turn to the question of whether the RCPA, although not eligible to act as representative for the putative class, may nevertheless maintain the suit in a representational capacity on behalf of its own members.
Generally, an injured party "must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Nevertheless, some exceptions to this rule exist and, in certain cases, "[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members." Id. at 511, 95 S.Ct. at 2211.
Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).
While the Hunt test is well-established in our jurisprudence and enjoys the specific reaffirmation of the Supreme Court in Brock, the application of the various prongs has, to this date, produced a caselaw that does not lend itself to easy distillation.
The district court focused on the third element of the Hunt test for associational standing, and found that the RCPA had failed to satisfy this element. Therefore, the court did not address the other prongs. The court was of the view that the RCPA did not have representational standing because the claims it alleged would require the participation of individual RCPA members. The
1. Participation of individual members
Our colleagues in the Third Circuit recently confronted a case similar in many ways to our own. In Hospital Council of Western Pennsylvania v. City of Pittsburgh, 949 F.2d 83 (3d Cir.1991), the Hospital Council
In assessing whether participation of individual members was necessary, the Third Circuit noted that, in the third prong of Hunt, the Supreme Court stated that associational standing is inappropriate if the claim or request for relief requires "the participation of individual members in the lawsuit." Hospital Council, 949 F.2d at 89 (quoting Hunt, 432 U.S. at 343, 97 S.Ct. at 2441). Viewed alone, said Judge Alito, this language could be interpreted to mean that associational standing is not permitted if participation by any members of the association would be necessary. However, the court noted that this language in Hunt appears to paraphrase a more detailed statement first made by the Supreme Court in Warth and repeated in later cases. In Warth, 422 U.S. at 511, 95 S.Ct. at 2212, the Supreme Court wrote, "so long as the nature of the claim and the relief sought does not make individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." (emphasis added). Accordingly, concluded the Third Circuit, it appears that an association may assert a claim that requires participation by some members.
Turning to the case before it, the Third Circuit continued that the council's claims would require some participation by some council members. The court also acknowledged that, unlike many prior associational standing cases, the case was not a challenge to a statute, regulation, or ordinance, but instead involved a challenge to governmental practices. Consequently, it would probably be necessary to prove, through evidentiary submission, the manner in which the defendants treated individual member hospitals. Such litigation would likely require that member hospitals provide discovery and trial testimony by their officers and employees. Nevertheless, concluded the Third Circuit, such participation would not constitute participation by "each injured party" in the suit and run afoul of the third prong of the Hunt test.
We believe that the approach of the Third Circuit is a sound one.
Finally, we note that, while the third prong of the Hunt test requires that we conclude that "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit," Hunt, 432 U.S. at 343, 97 S.Ct. at 2441, associational standing does depend "in substantial
We believe that the present case, at least with respect to the contractual claim, is very close to the situation that confronted the Third Circuit in Hospital Council. In that case, at issue was whether the defendant governmental entities had pursued the policy of which the plaintiffs complained; the court believed that issue could be answered through the evidence submitted by, among others, some of the parties. Here, the issue is whether the City made certain binding representations with respect to its health care funding obligations. Recovery would not require that each and every member of the RCPA establish that he was the recipient of a misrepresentation by the City or the Police Fund.
2. Conflicts of interest
Because we believe that the district court employed an inappropriate methodology in assessing whether the RCPA may maintain this action on behalf of its own members, that court will have to address this issue once again on remand. At that time, it will no doubt have to confront the problem that it addressed with respect to the matter of class action representation under Rule 23 — whether the existence of conflicts of interest within the group preclude the RCPA from acting in this capacity. While the inquiry with respect to Rule 23 and the inquiry with respect to associational standing have many similarities, as Judge Bork noted in National Maritime Union of America v. Commander, Military Sealift Command, 824 F.2d 1228, 1233 (D.C.Cir.1987), the Supreme Court's decision in Brock makes clear that different factors must be weighed in each case. Because it appears inevitable that the district court will have to confront this issue, we believe considerations of judicial economy counsel that we address it at this point.
The circuits have not been uniform in their approach to the presence of conflicts of interest in an association seeking standing. Indeed, they have elected to analyze the problem under various parts of the Hunt test. We shall review the major contributions by the various circuits and then articulate what appears to us to be the proper course for the district court upon remand.
Some circuits appear to take the view that a conflict of interest among group members is not relevant to whether associational standing ought to be permitted. In Associated General Contractors of California v. Coalition for Economic Equity, 950 F.2d 1401 (9th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 1670, 118 L.Ed.2d 390 (1992), the court expressed the view that the third prong of the Hunt test did not require the absence of any actual or potential conflict among the organization's members. Id. at 1408. It could find no basis for such an inquiry in the Supreme Court's pronouncements in Hunt or Brock. Id. Furthermore, it believed that the Supreme Court had implicitly rejected the argument in Brock when it distinguished the requirements for Rule 23 class certification from the requirements for group standing. It noted that the Brock court had contrasted the ad hoc nature of a Rule 23 class assembled for the sole purposes of litigation and the strengths of a pre-existing group that can "draw upon a pre-existing reservoir of expertise and capital." Id. at 1409 (quoting Brock, 477 U.S. at 289, 106 S.Ct. at 2532). The court noted that, while the Supreme Court in Brock had acknowledged the possibility that some organizations would not always be able to represent all of their members, such an eventuality, when it arose, could be solved by denying issue preclusion against the members not adequately
Id. at 1409.
The District of Columbia Circuit also appears to follow this view. In National Maritime Union, 824 F.2d at 1228, the court was confronted with an action brought by three unions to enjoin the performance of a contract awarded to a particular company by the Military Sealift Command. The unions alleged injury to their members and attempted to sue as representatives of those members. In applying the Hunt test, the court addressed the contention that the unions lacked standing because the employees they sought to represent had conflicting interests in the outcome of the litigation. The court frankly noted that this contention "may be seen as an attempt to add a fourth factor to those specified by Hunt or as an aspect of the third." Id. at 1232. To address this concern, the District of Columbia Circuit determined that "associational standing does not necessarily depend upon harmony of member interests." Id.
First of all, it was of the view that the Supreme Court had decided the issue in Brock. Judge Bork noted that, in Brock, the Supreme Court had stated that the inability of an association to represent adequately all injured members could be handled by not permitting a resulting judgment to preclude subsequent claims by the association's members who had not been adequately represented. He noted that Brock had said: "Should an association be deficient in this regard, a judgment won against it might not preclude subsequent claims by the association's members without offending due process principles." Id. at 1233 (quoting Brock, 477 U.S. at 290, 106 S.Ct. at 2533). Judge Bork continued by noting that the Supreme Court "appeared to deal with the problem of conflicting interests by saying that associational standing was too valuable to jettison and offering possible safeguards for members whose interests were adverse to the litigating position taken by the association." Id. at 1233. He further stated that, to the degree there was any ambiguity in the Supreme Court's holding in Brock and the court of appeals was free to address the issue as a matter of first impression, the result suggested by Brock was the correct one.
National Maritime Union, 824 F.2d at 1233. Allowing group standing under these circumstances, Judge Bork wrote, did not mean that the rights of the individual members whose interests did not conform to the position of the group ought to be forgotten. He noted that such individuals, if they had standing, could intervene to advance their interests against the association's position on the merits. He also indicated that it might
The same theme was articulated by the Third Circuit in Hospital Council of Western Pennsylvania, 949 F.2d at 83. In that case, it had been suggested that the interests that the organization sought to promote were adverse to those of some of the members because some members may have wished to benefit from the favorable treatment allegedly given by the defendant state agencies to institutions entering into agreements to make payments in lieu of taxes. Relying on its earlier decision in Contractors Ass'n v. City of Philadelphia, 945 F.2d 1260 (3d Cir. 1991), the court held that the association had standing to assert its claim. The court also noted that in the case before it, there was no basis for concluding that those council members who had entered into such agreements felt that the relief sought in the lawsuit would not be beneficial. The court noted that, while it was possible that such member hospitals might prefer to continue making payments in exchange for favorable treatment, it was also possible that they might prefer to stop making the payments.
The Third Circuit's earlier case, Contractors Ass'n, is helpful in understanding the considerations at issue when conflicts of interest arise because, in that case, the Third Circuit directly confronted with more elaboration the impact of conflicts among members on an organization's standing. The Contractors Association of Eastern Pennsylvania, together with other trade associations, had challenged Philadelphia's public contract set-aside law as violative of the equal protection clause of the Fourteenth Amendment. Some of the Contractors Association's members qualified as disadvantaged businesses and actually opposed the litigation, thus the conflict of interest existed within the association itself. The court acknowledged that, in Polaroid Corp. v. Disney, 862 F.2d 987, 999 (3d Cir.1988), it had stated that "associational standing has never been granted in the presence of serious conflicts of interest either among the members of an association or between an association and its members."
Polaroid addressed whether a target corporation had standing to assert the interests of the shareholders in a hostile takeover. The court noted two possible conflicts that could prevent the target corporation from seeking standing on behalf of the shareholders. First, there was a conflict between management who might seek to defeat the takeover and remain in control and the shareholders who could profit from the tender offer. The second conflict was between the shareholders who might profit from the tender offer (normally the majority of shareholders) and the target corporation when the corporation sides with the shareholders who will be harmed by the tender offer (normally the minority shareholders). Nevertheless, it did not believe that Polaroid was controlling. It noted that only 29 of the 535 members of the association were members of the disadvantaged group and, therefore, there was no question that the association was representing the majority of its members. Under these circumstances, noted the court, there was little chance that the conflict between the majority and minority contractors would either affect the adequacy of representation or would present the possibility of a collusive suit.
Contractors Ass'n, 945 F.2d at 1265. Because the position of the Contractors Association was not contrary to the interests of a majority of its members, and there was nothing on the record to indicate that they had failed to follow their own internal rules before joining the litigation, the perceived conflict of interest did not bar associational standing.
The Court of Appeals for the Fourth Circuit has taken what, at least at first glance, might seem to be a contrary position. In Maryland Highways Contractors Ass'n v.
The court also noted that the decision to litigate in this case had been made by the association's Board which did not have a MBE representative. The Board had also taken the unusual position of not telling the members of its decision to litigate until after the suit had already been filed. This secrecy, noted the Fourth Circuit, raised suspicion with respect to the motives of the association. Id. at 1253. Therefore, "[b]ecause of the actual conflict of interest and the potential for conflict in this case, the Association has failed to meet the third prong of the Hunt test." Id.
In our own circuit, we have addressed this problem in Southwest Suburban Board of Realtors, Inc. v. Beverly Area Planning Ass'n, 830 F.2d 1374 (1987). The SSBR, a trade association of real estate brokers, brought an action charging that the defendant neighborhood planning association, certain of its employees and volunteers, and certain real estate brokerage entities had conspired to control and monopolize real estate transactions in violation of the antitrust laws. The SSBR contended that it had standing to maintain an antitrust action against the defendants on two grounds. First, it argued that it had proprietary standing under section 4 of the Clayton Act to seek treble damages because it had sustained an injury. Second, it argued that it had representational standing under the Hunt test. We held that the second prong of the Hunt test, the so-called "germaneness" test, had not been satisfied. The alignment of the parties in the action evidenced, the court held, a serious conflict in SSBR's interest. 830 F.2d at 1380. At least three of the named real estate brokerage defendants were members of SSBR, and thus SSBR was in effect suing certain of its members on behalf of other members. Judge Cummings, writing for the court, held that
Southwest Suburban Realtors, 830 F.2d at 1381.
The approach of the Fourth Circuit in Maryland Highways and of this court in Southwest Suburban is no doubt best explained by a close examination of the facts of these two cases. In both situations, the conflict of interest among the members was profound. In Maryland Highways, the suit not only worked to the direct detriment of the minority members of the Association, but was undertaken by the Association without observance of its own by-laws. In Southwest Suburban, Judge Cummings noted that "what this suit amounts to is SSBR suing certain of its members on behalf of other of its members." 830 F.2d at 1381. The court
Indeed, it is not without significance that Judge Cummings analyzed the conflict of interest problem not under the third prong of the Hunt test, but under the so-called "germaneness" test of the second prong. This second prong has received little elaboration by the Supreme Court. However, our colleagues in the District of Columbia Circuit have suggested that Brock provides significant guidance for its use. The Supreme Court's recognition in Brock of the special advantages offered by associational suits signals, wrote the District of Columbia Circuit in Humane Society v. Hodel, 840 F.2d 45 (D.C.Cir.1988),
Id. at 56 (quoting Brock, 477 U.S. at 289, 106 S.Ct. at 2532). The District of Columbia Circuit reasoned that, if the
Humane Society, 840 F.2d at 56 (quoting Brock, 477 U.S. at 290, 106 S.Ct. at 2533). It would appear, concluded the District of Columbia Circuit, that the germaneness test simply requires that "an organization's litigation goals be pertinent to its special expertise and the grounds that bring its membership together." Id. (footnote omitted). This expansive definition of "germaneness" in Hodel carries within it its own limitations — limitations that are reached in Maryland Highways and Southwest Suburban because it was clear in those cases that the associations were not really operating along the lines for which they had been organized. In each case, they were operating as less permanent structures merely for litigation purposes and not for the purposes stated in their charters.
On remand, we believe that the district court must begin, as did we, with the pronouncement in Brock. In determining whether representational standing is appropriate with respect to any of the counts in the complaint,
E. Denial of Preliminary Injunction
Several times in the course of this lengthy litigation, the appellants sought preliminary injunctions from the district court. In February 1990, the RCPA brought its first motion for a preliminary injunction to keep the City from altering the rates charged for its health care plan during the litigation. This motion was referred to a magistrate judge who continued RCPA's motion on assurances by the City that it would not raise the rates for the RCPA claimants without notifying plaintiff's lead counsel. See R. 30. Despite these assurances, in October 1991, the City determined that it would
As a prefatory note, the City and the Funds contend that the denial of the motion for preliminary injunction is unreviewable by this court. They invite our attention to the timing of the RCPA's appeal from the denial: the motion from which the RCPA appeals was denied on October 8, 1991, while the notice of appeal was filed on May 29, 1992. Focusing their attention on the relevant dates, the City and the Funds assert that the denial was appealable as of right under 28 U.S.C. § 1292(a)(1)
Although an order denying a preliminary injunction is immediately appealable as an interlocutory decision under 28 U.S.C. § 1292(a)(1), an immediate appeal nonetheless is not mandated by the statute. A party may forgo an interlocutory appeal and present the issue for appeal after final judgment. "Interlocutory orders therefore may be stored up and raised at the end of the case...." Kurowski v. Krajewski, 848 F.2d 767, 772-73 (7th Cir.), cert. denied, 488 U.S. 926, 109 S.Ct. 309, 102 L.Ed.2d 328 (1988).
In reviewing a denial of a motion for preliminary injunction, we "apply the clearly erroneous standard to any factual determinations; necessary legal conclusions are subject to de novo review." In re L & S Indus., Inc., 989 F.2d 929, 932 (7th Cir.1993). A party seeking a preliminary injunction bears the burden of demonstrating: (1) an absence of an adequate remedy at law; (2) irreparable harm in the absence of an injunction exceeding the irreparable harm the other side will suffer if the injunction issues; (3) a reasonable likelihood of success on the merits; and (4) harm to the public interest that stems from the injunction and is tolerable in light of the benefits achieved by the relief. West Allis Memorial Hosp., Inc. v. Bowen, 852 F.2d 251, 253 (7th Cir.1988).
The district court held that none of the classes could be certified, that none of the movants could be allowed to intervene, and that the RCPA had no standing to assert the claims of its members. Today, we affirm all of these determinations except that the RCPA ought to be given the opportunity to demonstrate that it has associational standing to represent its members. Unless and
For the foregoing reasons, we affirm the judgment of the district court in part and reverse and remand in part.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
Nevertheless, the particular circumstances of this case make it difficult to conclude that we are without jurisdiction to review this matter on appeal. After holding the motions to intervene inadequate, the district court immediately proceeded to discuss the merits of the motions for class certification filed by the putative intervenors. The district court took this step, "in anticipation of a belated motion by the intervenors to file procedurally correct motions." R. 271, Mem.Op. at 13. By choosing this course of proceeding, the district court appears to have expected that the putative intervenors would conform their motions to the court's ruling and therefore deserve a decision on the merits of their class certification request. Under these circumstances, we do not believe that it is compatible with the policy of finality that animates 28 U.S.C. § 1291 to hold that the ruling of the district court on the matter of intervention was a final judgment and that the putative intervenors were required to take an immediate appeal. Cf. J.I. Case Credit Corp. v. First Nat'l Bank, 991 F.2d 1272, 1275 (7th Cir.1993) (stating that dismissal without prejudice is generally not final and appealable); Production and Maintenance Employees' Local 504, 954 F.2d 1397, 1402 (7th Cir. 1992) (stating same); Ordower v. Feldman, 826 F.2d 1569, 1572 (7th Cir.1987) (noting that "[i]f a district court's dismissal leaves a plaintiff free to file an amended complaint, the dismissal is not considered a final appealable order").
SRS implemented a rate freeze and prior to the rate freeze each facility submitted two cost reports during each fiscal year and SRS adjusted its reimbursement rate for each facility to reflect the most current cost report. However, under this new plan, SRS would no longer readjust reimbursement rates based on cost reports. Rather, it would determine each facility's rate of reimbursement on the basis of the facility's last cost report filed before October 1, 1990.
Plaintiff-associations brought an action seeking a preliminary injunction against the two state plan amendments. Proceeding as representatives of their members, the associations contended that, although SRS made assurances to the federal government, the findings made by SRS under the amendments did not support the assurances that were made and did not comply with federal law. They also contended that the reimbursement rates established by SRS were substantially deficient. They claimed that the rates were not adequate and reasonable to meet the costs of efficiently and economically operated facilities.
The Tenth Circuit held that the third prong of the Hunt test had not been met. The court acknowledged that individual participation might not be necessary with respect to the requested relief of a preliminary injunction. However, the court noted that, under the Hunt test, an association has standing only if "`neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.'" Kansas Health Care, 958 F.2d at 1022 (quoting Hunt, 432 U.S. at 343, 97 S.Ct. at 2441).
The court conceded that, under some circumstances, a court may be able to make a cursory review of a reimbursement system and determine that reimbursement rates are not adequate. It also noted that, in an earlier case, the district court had been able to conclude, with minimum participation of individual providers, that the reimbursement system was inadequate. By contrast, the court here stated, "we will be required to examine evidence particular to individual providers. For example, to determine whether a 4.8% inflation rate insufficiently accounts for increased costs incurred by providers, we simply will be forced to review evidence that pertains to individual providers." 958 F.2d at 1022-23. The court also indicated that it was open to the government to show that some facilities might not be efficiently operated.
With respect to the plaintiffs' claim that SRS had failed to make the findings required by federal law, the district court held that it would have to review these procedural findings and scrutinize specific health care providers who were not parties to the action. The district court simply could not review these inferences adequately by looking solely at the data processed and produced by the state. Thus, the third prong of Hunt had not been satisfied.
To the extent that Kansas Health Care's methodology differs from that of the Third Circuit, we believe that the Third Circuit's approach is the preferable one.
28 U.S.C. § 1292(a)(1).