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822 OCTOBER, 2024 349 Conn. 822 Collier v. Adar Hartford Realty, LLC
LATONNA COLLIER ET AL. v. ADAR HARTFORD REALTY, LLC, ET AL. (SC 20797) Robinson, C. J., and McDonald, Mullins, Ecker and Suarez, Js.
Syllabus
The plaintiffs, former residents of a federally subsidized housing complex that was owned and managed by the defendants, appealed from the trial court’s denial of their motion for class certification. In their com- plaint, the plaintiffs alleged, among other causes of action, fraud, reck- lessness, negligence, breach of the warranty of habitability, and a violation of the Connecticut Unfair Trade Practices Act (42-110a et seq.) in connection with the defendants’ alleged failure to maintain the housing complex in a safe and habitable condition and their pattern and practice of delaying inspections, concealing health and safety hazards, and vio- lating federal, state, and local housing laws. The trial court denied the plaintiffs’ motion for class certification on the ground that their proposed class, which consisted of all persons who resided at the housing complex between 2004 and 2019 who were adversely affected by the defendants’ alleged practices, failed to satisfy the predominance and superiority requirements under the rule of practice (§ 9-8 (3)) governing class action certification. The trial court reasoned that the predominance require- ment was not met because the determination of whether each unit in the housing complex was rendered uninhabitable was fact-specific and dependent on individualized factors and that the superiority requirement was not met due to the highly individualized proof required to establish liability. Although the trial court recognized that there could exist a basis for class certification with respect to certain of the plaintiffs’ claims for some of the discrete events alleged in the complaint, such as a sewage backup in 2019 that resulted in the tenants’ evacuation of the housing complex, the court concluded that the proposed class of all former tenants over a period of many years was too broad.
Held that the trial court did not abuse its discretion in denying the plaintiffs’ motion for class certification, as the proposed class of plaintiffs was too broad, and the trial court had no obligation to consider redefining the scope of the class sua sponte:
In support of their claims, the plaintiffs primarily relied on evidence concerning the defendants’ efforts, beginning in 2015, to delay inspec- tions and to hide housing code violations, inspection reports from 2018 documenting the squalid living conditions at the housing complex, and evidence of the 2019 sewage backup, and, because there was an absence of evidence regarding the allegedly uninhabitable conditions at the hous- ing complex prior to 2015 at the earliest, the vast majority of the proposed October 8, 2024 CONNECTICUT LAW JOURNAL Page 43
349 Conn. 822 OCTOBER, 2024 823 Collier v. Adar Hartford Realty, LLC class members would need to adduce individualized proof to establish the defendants’ liability.
Accordingly, there was no evidentiary basis to support the conclusion that common questions of fact or law would be the object of most of the efforts of the litigants and the court, and the proposed class therefore was too broad and failed to satisfy the predominance requirement.
Moreover, this court concluded that the predominance inquiry substan- tially encompasses the superiority analysis and that, if the predominance requirement is not satisfied, a class action likely will not be the superior mechanism to resolve the dispute between the parties.
Furthermore, a trial court is vested with broad discretion to make class certification decisions, which includes the authority to limit or modify the scope of the class definitions proposed by the plaintiffs, and, although this court urged trial courts to consider redefining the scope of the class sua sponte if the proposed definition of the class is too broad, trial courts have no affirmative obligation to do so, as the burden is on the plaintiff, rather than the court, to propose a narrower, certifiable class.
In the present case, the plaintiffs never asked the trial court to redefine the class definition or to create a subclass consisting of plaintiffs who resided at the housing complex between 2018 and 2019, and, in the absence of such a request, the court was not required to rule on that issue.
Argued March 25—officially released July 23, 2024*
Procedural History
Action to recover damages for, inter alia, the defen- dants’ allegedly unfair trade practices in the operation of a public housing project, and for other relief, brought to the Superior Court in the judicial district of Hartford and transferred to the Complex Litigation Docket; there- after, the court, Noble, J., denied the plaintiffs’ motion for class certification, and the plaintiffs appealed. Affirmed. Eric Del Pozo, with whom were Sarah E. Dlugoszew- ski, Sarah N. Niemiroski and, on the brief, Joette Katz, Mark K. Ostrowski, Elizabeth Buchanan, Alexander T. Taubes and James Bergenn, for the appellants (plaintiffs). * July 23, 2024, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes. Page 44 CONNECTICUT LAW JOURNAL October 8, 2024
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Michele C. Wojcik, for the appellee (named defendant). Frank J. Szilagyi, with whom, on the brief, was Adam D. Miller, for the appellee (defendant Arco Man- agement Corporation). William Tong, attorney general, and Joshua Perry, solicitor general, filed a brief for the state of Connecti- cut as amicus curiae. James J. Healy and Alinor C. Sterling filed a brief for the Connecticut Trial Lawyers Association as ami- cus curiae. John W. Cannavino, Jr., filed a brief for the Connecti- cut Defense Lawyers Association as amicus curiae. Jeffrey Gentes, Anika Singh Lemar, and Eric Crouch and Cooper Kohnstamm, law student interns, filed a brief for the Housing Clinic of the Jerome N. Frank Legal Services Organization et al. as amici curiae. Opinion
ECKER, J. This is an interlocutory appeal from the trial court’s denial of a motion for class certification. The plaintiffs,1 former residents of Barbour Gardens, a housing development in the city of Hartford (city), instituted this action in connection with the living condi- tions at Barbour Gardens during their residency. They sought compensatory and punitive damages and attor- ney’s fees from the owner of Barbour Gardens and its property management company, and alleged various tort, contract, equitable, and statutory claims, including a claim of a violation of a provision of the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes 1 The plaintiffs are Latonna Collier and her children (Renee Beckman and Rodnae Beckman), Roleisha Collier and her children (Janiyah Turner and Jordynn Collier), Tasha M. Jordan and her children (Ly’Asia Thompson and Kwan’Asi Levine), Evelyn Jones, and David Merritt. October 8, 2024 CONNECTICUT LAW JOURNAL Page 45
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§ 42-110g. The plaintiffs filed a motion to certify a class on behalf ‘‘of all persons who lived at Barbour Gardens for any or all of the time between June 24, 2004, and October 13, 2019,’’ which the trial court denied on the grounds that individualized issues would predominate over class-wide issues and that a class action is not a superior method to resolve the plaintiffs’ claims. See Practice Book § 9-8 (3). In this appeal brought pursuant to General Statutes § 42-110h, the plaintiffs contend that there is sufficient evidence in the record common to the entire class to satisfy the predominance and superiority requirements. We reject this claim due to the lengthy period of time for which class certification was requested—covering all residents at Barbour Gar- dens at any time over a span of more than fifteen years— and the absence of generalized evidence in the record concerning the living conditions at Barbour Gardens during most of the proposed class period. Accordingly, we conclude that the trial court did not abuse its discre- tion in denying the plaintiffs’ motion for class certifi- cation. I BACKGROUND The record reflects the following facts, which are either undisputed or taken as true for the purpose of the plaintiffs’ motion for class certification.2 Barbour Gardens is a four building, eighty-four unit, federally 2 ‘‘In applying the criteria for certification of a class action, the [trial] court must take the substantive allegations in the complaint as true, and consider the remaining pleadings, discovery, including interrogatory answers, relevant documents, and depositions, and any other pertinent evi- dence in a light favorable to the plaintiff. However, a trial court is not required to accept as true bare assertions in the complaint that [class certification] prerequisites were met. . . . Class determination generally involves consid- erations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’’ (Internal quotation marks omitted.) Standard Petroleum Co. v. Faugno Acquisition, LLC, 330 Conn. 40, 49, 191 A.3d 147 (2018). Page 46 CONNECTICUT LAW JOURNAL October 8, 2024
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subsidized housing complex located in the city’s north end neighborhood. The property was owned by the named defendant, Adar Hartford Realty, LLC (Adar), from 2004 until 2019, and managed by the defendant Arco Management Corporation (Arco) from 2005 until at least 2018.3 The federal Department of Housing and Urban Devel- opment (HUD) subsidized the rental units at Barbour Gardens through the Section 8 Project-Based Rental Assistance (PBRA) program benefiting low income fam- ilies. See 42 U.S.C. § 1437f (2018). PBRA benefits are tied to a specific property, and recipients cannot move without losing their federal housing subsidy. HUD regu- lations require the Real Estate Assessment Center (REAC), a unit within HUD’s Office of Public and Indian Housing, to inspect Section 8 properties every one to three years. See 24 C.F.R. § 200.857 (b) (1) (2023); see also Eco- nomic Growth Regulatory Relief and Consumer Protec- tion Act: Implementation of National Standards for the Physical Inspection of Real Estate (NSPIRE), 88 Fed. Reg. 30,442, 30,492 (May 11, 2023) (to be codified at 24 C.F.R. § 5.705 (c) (2024)). REAC inspectors may award inspection scores ranging from 1 to 100, and any score below 60 is considered deficient. See Consolidated and Further Continuing Appropriation Act, 2015, Pub. L. No. 113-235, § 226 (a), 128 Stat. 2130, 2755. A score below 30 may result in the imposition of civil penalties or the abatement of the Section 8 contract. See id., § 226 (b) (2) (A) and (B), 128 Stat. 2755. Under the defendants’ stewardship, Barbour Gardens fell into a state of egregious disrepair. The defendants were aware of the poor condition of the property and, beginning as early as 2015, ‘‘successfully availed them- 3 The defendants also include the following individual members of Adar, who did not file a brief in the present appeal: Saied Soleimani, Albert Soleimani, and Vivid Management, LLC. All references to the defendants are solely to Adar and Arco. October 8, 2024 CONNECTICUT LAW JOURNAL Page 47
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selves of the ability to reschedule inspections in order to pass inspections.’’ For example, an email communi- cation between Arco employees dated March 4, 2015, reflects their efforts to delay a REAC inspection sched- uled for April 17, 2015, because the employees believed that, if the property was inspected on that date, it would fail inspection with a score of ‘‘about a 15c’’ out of 100.4 The REAC inspection was rescheduled for August 29, 2015, and, after an Arco employee again expressed con- cern that, if the property was inspected ‘‘[o]n that day [it] would get a FAIL,’’ the inspection ultimately was postponed until October 1, 2015.5 Barbour Gardens was inspected again by REAC inspectors in February, 2018. Prior to the 2018 inspec- tion, Arco employees were aware that ‘‘[a]lmost 100 [percent] of [the] windows’’ were ‘‘impossible to lock,’’ causing ‘‘a pretty big security issue’’ and ‘‘a tremendous’’ loss of heat. One Arco employee described Barbour Gardens as ‘‘a mold and cockroach infested slum with major plumbing leaks all over the property’’ and as ‘‘[m]issing shower walls, etc.’’ To pass inspection, Arco employees decided to take about one ‘‘half the place . . . [offline],’’ meaning to exempt it from inspection. Despite these problems, Barbour Gardens received a passing score of 81 out of 100 on its REAC inspection. Local community activists and Barbour Gardens resi- dents knew that the score did not reflect the true condi- tions at Barbour Gardens. Due to pressure from the community, the Licenses and Inspections Division of 4 According to HUD, ‘‘[t]he [lowercase] letter ‘c’ is given if one or more exigent/fire safety (calling for immediate attention or remedy) [health and safety] deficiencies were observed.’’ United States Dept. of Housing and Urban Development, Physical Inspection Summary Report (Ver 2.3), avail- able at https://www.hud.gov/program offices/public indian housing/reac/ products/pass/pass isrpt (last visited July 22, 2024). 5 There are no factual allegations or evidence in the record as to the results of the 2015 inspection. Page 48 CONNECTICUT LAW JOURNAL October 8, 2024
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the city’s Department of Development Services inspected the property on September 12, 2018. The city inspection uncovered more than 200 violations of the Hartford Municipal Code,6 including (1) ‘‘[b]owing, deflected or sagging floors,’’ (2) ‘‘[w]ater damaged ceilings,’’ (3) ‘‘[w]ater damaged walls,’’ (4) ‘‘[m]ice infestations,’’ (5) ‘‘[b]edbug infestations,’’ (6) ‘‘[r]oach infestations,’’ (7) ‘‘[f]lea infestations,’’ (8) ‘‘[i]noperable electric[al] out- lets,’’ (9) ‘‘[t]hermostats in disrepair,’’ (10) ‘‘[i]noperable heating facilities,’’ (11) ‘‘[b]roken or inoperable appli- ances,’’ (12) ‘‘[p]eeling paint,’’ (13) ‘‘[d]oors that will not latch,’’ (14) ‘‘[w]indows that will not stay open,’’ (15) ‘‘[m]issing window screens,’’ and (16) ‘‘[i]mproperly installed plumbing fixtures, including dysfunctional toilets.’’ On October 17, 2018, the city’s fire marshal inspected Barbour Gardens to evaluate the safety of the building. The fire marshal discovered that emergency exit lights were not operational, apartment doors did not close, smoke alarms were missing from apartments, and there were no maintenance records for the property’s fire system. The fire alarm panels were not operational, and a Barbour Gardens maintenance staff member asserted that he had never seen them operational. Due to the significant risk to the residents’ health and safety posed by fire, the fire marshal placed Barbour Gardens on an around-the-clock fire watch.7 6 HUD regulations require subsidized housing under the PBRA program to comply with all ‘‘[s]tate or local housing codes . . . .’’ Economic Growth Regulatory Relief and Consumer Protection Act: Implementation of National Standards for the Physical Inspection of Real Estate (NSPIRE), 88 Fed. Reg. 30,442, 30,492 (May 11, 2023) (to be codified at 24 C.F.R. § 5.703 (f) (2) (2024)); see also id., 30,498 (to be codified at 24 C.F.R. § 200.850 (2024)). 7 In March, 2019, the fire marshal conducted another inspection of Barbour Gardens, during which new code violations were found. The fire marshal intensified the fire watch, assigning four individuals to monitor the property at all times to ensure that, in the event of a fire, residents were ade- quately warned. October 8, 2024 CONNECTICUT LAW JOURNAL Page 49
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HUD scheduled another REAC inspection for Octo- ber 30, 2018. Prior to this inspection, one Arco employee predicted that Barbour Gardens ‘‘will come back as possibly the lowest score ever received.’’ This predic- tion proved accurate; Barbour Gardens received a score of 9c—the lowest score received by any project in Con- necticut’s history. During the inspection of 20 rental units, 138 health and safety deficiencies were observed, including electrical hazards, inoperable windows and doors, mold and mildew, water damage, and a bedbug infestation. REAC inspectors noted that, ‘‘[i]f all build- ings and units were inspected, it is projected that a total of 423 health and safety deficiencies would apply to the property.’’ Because the residents at Barbour Gar- dens were ‘‘not receiving the quality of housing to which they [were] entitled,’’ REAC referred Barbour Gardens to HUD’s Departmental Enforcement Center for an enforcement action. The defendants did not correct any of the deficiencies documented by the city or the REAC inspectors. As a result, the city instituted criminal proceedings against the owners of Barbour Gardens, and HUD cancelled Barber Gardens’ participation in the PBRA program. The residents of Barbour Gardens no longer were eligi- ble to receive a project based federal subsidy and needed to find new housing. Given the limited number of housing units that qualify for federal subsidies, the low income residents at Barbour Gardens struggled to find affordable housing. Many residents who had nowhere else to go were forced to remain at Barbour Gardens, despite the deplorable living conditions. In June, 2019, three feet of standing waste water flooded into the basement of one of Barbour Gardens’ four buildings. The plumbing system pumped the sew- age from one building into another. As a result, the city evacuated the families who had remained at Barbour Gardens while awaiting the opportunity to transition Page 50 CONNECTICUT LAW JOURNAL October 8, 2024
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to safe and habitable affordable housing. HUD deemed the property too unsafe for residents to return, and these families were permanently displaced.
The plaintiffs filed the present putative class action ‘‘on behalf of all persons who resided at Barbour Gar- dens between 2004 and 2019 who were adversely affected by the defendants’ pattern and practice of dis- regarding the health and safety of residents.’’ The opera- tive complaint raises the following nine claims against the defendants: fraud, recklessness, negligence, negli- gent infliction of emotional distress, breach of lease, breach of the warranty of habitability, breach of the management agreement between Adar and Arco (to which the plaintiffs claimed to be third-party beneficiar- ies), unjust enrichment, and a violation of CUTPA. In their request for relief, the plaintiffs sought compensa- tory and punitive damages, and reasonable attorney’s fees.8 The defendants denied the plaintiffs’ claims and raised various affirmative defenses, such as expiration of the applicable statutes of limitations, the plaintiffs’ alleged breach of their respective leases, the doctrine of unclean hands, and that the high crime rate in the 8 The nature and type of damages sought differed for the various counts. As to the fraud count, the plaintiffs claimed that they were entitled to punitive and compensatory damages for, ‘‘among other things, emotional distress, anxiety, and frustration . . . .’’ In connection with their reckless- ness claim, the plaintiffs sought punitive and compensatory damages for ‘‘[t]he distress caused by the conditions and resulting displacement.’’ With respect to their claims of negligence and negligent infliction of emotional distress, the plaintiffs requested compensatory damages for unspecified injuries, including emotional distress that ‘‘has resulted and might result in the future illness [of] or bodily harm to the plaintiffs and members of the [class].’’ The plaintiffs sought rent abatement on their contract claims (breach of lease, breach of the warranty of habitability, and breach of the management agreement). As for their equitable claim for unjust enrichment, the plaintiffs alleged that they were entitled ‘‘to restitution and . . . dis- gorgement . . . .’’ Finally, as to the CUTPA count, the plaintiffs asked for punitive and compensatory damages, and reasonable attorney’s fees, under § 42-110g. October 8, 2024 CONNECTICUT LAW JOURNAL Page 51
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neighborhood was a superseding, intervening cause of the plaintiffs’ injuries. The plaintiffs moved to certify the proposed class, consisting ‘‘of all persons who lived at Barbour Gardens for any or all of the time between June 24, 2004, and October 13, 2019,’’ for each of the nine counts alleged in the operative complaint. The defendants opposed the plaintiffs’ motion for class certification. They argued, among other things, that the plaintiffs had failed to meet the requirements of predominance and superiority in Practice Book § 9-8 (3) because individualized proof would be required to demonstrate (1) the condition of each plaintiff’s apartment, (2) that the defendants’ alleged misconduct caused that condition, (3) that each plaintiff suffered an injury as a result, and (4) the amount of damages. The trial court denied the plaintiffs’ motion for class certification, concluding that, although the plaintiffs had satisfied the numerosity, commonality, typicality, and adequacy of representation requirements in Prac- tice Book § 9-7,9 they had failed to satisfy the predomi- nance and superiority requirements in Practice Book § 9-8 (3). With respect to predominance, the trial court reasoned that ‘‘[t]he determination of whether each unit was rendered uninhabitable is necessarily uniquely fact- specific’’ and ‘‘dependent on a number of individualized factors that include the nature and severity of the 9 With respect to numerosity, the trial court found that the proposed class, which might exceed 300 people, was sufficiently numerous to make it impractical to hold separate trials, particularly because of the lack of financial resources of the class members. The court found that the common- ality factor had been ‘‘met because the plaintiffs allege[d] a systemic disre- gard for, and underfunding of, the maintenance and repair of Barbour Gardens . . . .’’ The ‘‘same systemic disregard for, and underfunding of, the maintenance and repair of Barbour Gardens’’ fulfilled the typicality requirement. Lastly, the court concluded that class counsel was qualified to conduct the litigation and that the plaintiffs were adequate class represen- tatives. Page 52 CONNECTICUT LAW JOURNAL October 8, 2024
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defect, the degree to which it impinges on the tenant’s safety, the duration of the defect’s existence, the period in which the defect was present, and its relation to other potential defects.’’ The trial court further deter- mined ‘‘that superiority is not present due to the highly individualized proof required to establish liability.’’10 Although the trial court denied the plaintiffs’ motion for class certification, it recognized, at least with respect to some of the plaintiffs’ claims, that there may be ‘‘a basis for class certification for some of the dis- crete events alleged, such as the sewage backup resulting in the tenants’ evacuation, the systemic failure of the fire system and alarm panels, as well as [a] sink- hole in the common area . . . .’’ As part of this observa- tion, the trial court noted that the plaintiffs’ flawed request for ‘‘a broad [class] certification for tenants over a period of many years, including all past tenants, and for a myriad of defects unrelated to these condi- tions,’’ could be ‘‘cured by amendment’’ of the operative complaint. The plaintiffs, however, did not seek to file an amended complaint or to certify a narrower class of plaintiffs. Instead, they filed this interlocutory appeal.11 On appeal, the parties renew the arguments they made in the trial court. During oral argument before this court, counsel for the plaintiffs acknowledged that the trial court may have had doubts about whether there was generalized evidence of the defendants’ alleged misconduct prior to 2015, or whether there was a cogni- 10 In its memorandum of decision on the plaintiffs’ motion for class certifi- cation, the trial court stated that, because the predominance requirement had not been met, ‘‘it need not address . . . superiority.’’ After filing the present appeal, the plaintiffs sought an articulation of the legal and factual basis for the court’s decision regarding superiority. The court granted the plaintiffs’ motion for articulation and issued a written memorandum of decision explicating its ruling on superiority, which we have summarized. 11 The plaintiffs appealed from the decision of the trial court to the Appel- late Court pursuant to § 42-110h, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. October 8, 2024 CONNECTICUT LAW JOURNAL Page 53
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zable class prior to 2018, but argued that the trial court was required to resolve these doubts in favor of class certification by narrowing and redefining the proposed class. Counsel for Adar responded that, because the plaintiffs had not sought to certify a narrower class of residents, the trial court properly ruled on the plaintiffs’ motion for class certification as pleaded. Counsel for Adar also pointed out that a redefined class would be significantly smaller in size and, thus, might not meet the numerosity requirement. Counsel for Arco echoed this viewpoint, arguing that the plaintiffs had moved to certify an overly broad class of residents and that redefinition of the proposed class had not been raised in the trial court. Following oral argument, we ordered the parties to file supplemental briefs addressing ‘‘whether the trial court [had] abused its discretion by not considering whether to redefine the proposed class sua sponte before denying the plaintiffs’ motion for class certification.’’ We conclude that, although trial courts have the dis- cretion under our rules of practice to redefine a pro- posed class sua sponte and ordinarily should consider whether a redefined class would warrant certification, even if redefinition is not formally requested by a party, the trial court is not obligated to do so in the absence of such a request. After examining the briefs and argu- ments submitted by the parties and the amici curiae,12 and the evidence in the record, we further conclude that the trial court did not abuse its discretion by deny- ing class certification with respect to the class defined in the plaintiffs’ motion. II CLASS ACTIONS ‘‘The class action is an exception to the usual rule that litigation is conducted by and on behalf of the 12 The following entities participated in the present appeal as amici curiae: the Connecticut Defense Lawyers Association, the Connecticut Trial Law- Page 54 CONNECTICUT LAW JOURNAL October 8, 2024
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individual named parties only.’’ (Internal quotation marks omitted.) Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011). Class actions ‘‘promote judicial economy and efficiency,’’ ‘‘protect defendants from inconsistent obligations,’’ ‘‘protect the interests of absentee parties,’’ and ‘‘provide access to judicial relief’’ for plaintiffs with small, indi- vidual claims. (Emphasis omitted; internal quotation marks omitted.) Rivera v. Veterans Memorial Medical Center, 262 Conn. 730, 735, 818 A.2d 731 (2003). ‘‘For [low income] groups in particular, aggregating claims has provided significant access to justice, as individual members of these groups may be in a poor position to seek legal redress, either because they do not know enough or because such redress is disproportionately expensive. Equally important, class actions can secure relief that is not only [longer lasting] but also [broader based], of critical importance to communities that are constantly confronted with nefarious business prac- tices.’’ (Footnote omitted; internal quotation marks omitted.) M. Gilles, ‘‘Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket,’’ 65 Emory L.J. 1531, 1535–36 (2016). Class actions ‘‘serve a unique function in vindicating plaintiffs’ rights’’; Rivera v. Veterans Memorial Medical Center, supra, 735; and provide low income individuals who are unlikely to file an individual action ‘‘an opportunity for relief.’’ Rodriguez v. Kaiaffa, LLC, 337 Conn. 248, 289, 253 A.3d 13 (2020); see Amchem Products, Inc. v. Wind- sor, 521 U.S. 591, 617, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) (‘‘The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individ- ual to bring a solo action prosecuting his or her rights. yers Association, the Housing Clinic of the Jerome N. Frank Legal Services Organization, the Connecticut Fair Housing Center, and the state of Con- necticut. October 8, 2024 CONNECTICUT LAW JOURNAL Page 55
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A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.’’ (Inter- nal quotation marks omitted.)). In determining whether to certify a class under our rules of practice, a trial court must follow a two step process. ‘‘First, a court must ascertain whether the four prerequisites to a class action, as specified in Practice Book § 9-7, are satisfied. These prerequisites are: (1) numerosity—that the class is too numerous to make joinder of all members feasible; (2) commonality—that the members have similar claims of law and fact; (3) typicality—that the [representative] plaintiffs’ claims are typical of the claims of the class; and (4) adequacy of representation—that the interests of the class are protected adequately.’’ (Internal quotation marks omit- ted.) Artie’s Auto Body, Inc. v. Hartford Fire Ins. Co., 287 Conn. 208, 213–14, 947 A.2d 320 (2008). If these prerequisites have been met, the court then proceeds to the second step and evaluates ‘‘whether the certification requirements of Practice Book § 9-8 are satisfied. These requirements are: (1) predominance— that questions of law or fact common to the members of the class predominate over any questions affecting only individual members; and (2) superiority—that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. . . . Because our class certification requirements are similar to those embodied in rule 23 of the Federal Rules of Civil Procedure, and our jurisprudence govern- ing class actions is relatively undeveloped, we look to federal case law for guidance in construing the provi- sions of Practice Book §§ 9-7 and 9-8.’’ (Footnote omit- ted; internal quotation marks omitted.) Id., 214–15. The burden is on the party moving for class certifica- tion to establish that the requirements of Practice Book Page 56 CONNECTICUT LAW JOURNAL October 8, 2024
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§§ 9-7 and 9-8 have been met, and the trial court should undertake ‘‘a rigorous analysis’’ to ensure that class certification is appropriate. (Internal quotation marks omitted.) Standard Petroleum Co. v. Faugno Acquisi- tion, LLC, 330 Conn. 40, 48, 191 A.3d 147 (2018); accord Rodriguez v. Kaiaffa, LLC, supra, 337 Conn. 256; Col- lins v. Anthem Health Plans, Inc., 275 Conn. 309, 320– 21, 880 A.2d 106 (2005). In conducting its analysis, the trial court must accept the substantive allegations in the complaint but may go beyond the pleadings when determining whether the requirements for class certifi- cation have been satisfied. Collins v. Anthem Health Plans, Inc., supra, 321. Class certification does not depend on ‘‘whether the . . . plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [the class action rules] are met.’’ (Internal quotation marks omitted.) Id. Although a trial court has broad discretion in determining whether to certify a class action, it should resolve all doubts regard- ing the propriety of class certification in favor of certifi- cation. Id. A Predominance and Superiority The dispute in the present case centers on the pre- dominance and superiority requirements, which we have described as ‘‘intertwined . . . .’’ (Internal quota- tion marks omitted.) Rodriguez v. Kaiaffa, LLC, supra, 337 Conn. 280. ‘‘[T]he fundamental purpose of the pre- dominance inquiry is to determine whether the econo- mies of class action certification can be achieved . . . without sacrificing procedural fairness or bringing about other undesirable results.’’ (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. 329. This inquiry substantially encompasses the superiority analysis because the fundamental pur- pose of the superiority requirement is to ensure that a October 8, 2024 CONNECTICUT LAW JOURNAL Page 57
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class action is the most ‘‘fair and efficient’’ means of resolving the case. Practice Book § 9-8 (3). Because these two requirements overlap, ‘‘[i]f the predominance criterion is satisfied, courts generally will find that the class action is a superior mechanism even if it presents management difficulties.’’ Collins v. Anthem Health Plans, Inc., supra, 347. Conversely, if the predominance require- ment is not satisfied, a class action likely will not be the superior mechanism to resolve the dispute between the parties due to ‘‘the management difficulties posed by the individual questions . . . .’’ (Internal quotation marks omitted.) Id. In the present case, the fulfillment of these two requirements depends on the prevalence of class-wide issues, and, therefore, we consider these requirements together. See, e.g., Rodriguez v. Kaiaffa, LLC, supra, 277.
Class-wide issues predominate over individualized issues ‘‘if resolution of some of the legal or factual questions that qualify each class member’s case as a genuine controversy can be achieved through general- ized proof, and if these particular issues are more sub- stantial than the issues subject only to individualized proof.’’ (Emphasis omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. 329. The focus is on whether class-wide issues have ‘‘a direct impact on every class member’s effort to establish liability . . . .’’ (Internal quotation marks omitted.) Id., 330. If the plaintiffs cannot estab- lish liability without introducing ‘‘a great deal of individ- ualized proof or argu[ing] a number of individualized legal points to establish most or all of the elements of their individual[ized] claims, such claims are not suit- able for class certification . . . .’’ (Internal quotation marks omitted.) Id.; accord Rodriguez v. Kaiaffa, LLC, supra, 337 Conn. 279; Standard Petroleum Co. v. Faugno Acquisition, LLC, supra, 330 Conn. 60–61; Art- Page 58 CONNECTICUT LAW JOURNAL October 8, 2024
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ie’s Auto Body, Inc. v. Hartford Fire Ins. Co., supra, 287 Conn. 215–16. The need for individualized proof to adjudicate defenses or to establish the amount of damages to which each class plaintiff is entitled does not necessarily defeat class certification. See, e.g., Standard Petroleum Co. v. Faugno Acquisition, LLC, supra, 330 Conn. 71; Collins v. Anthem Health Plans, Inc., supra, 275 Conn. 330. ‘‘The existence of special defenses, which may or may not be subject to common proof, is merely another factor to be considered in [the predominance] assess- ment.’’ Standard Petroleum Co. v. Faugno Acquisition, LLC, supra, 71. With respect to damages, class certifica- tion is appropriate if the plaintiffs can rely on ‘‘plausible statistical or economic methodologies to demonstrate impact on a class-wide basis. . . . Particularly [when] damages can be computed according to some formula, statistical analysis, or other easy or essentially mechani- cal methods, the fact that damages must be calculated on an individual basis is no impediment to class certifi- cation.’’ (Citation omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 331; see also Roach v. T.L. Cannon Corp., 778 F.3d 401, 408 (2d Cir. 2015) (‘‘it remains the black letter rule that a class may obtain certification under [r]ule 23 (b) (3) [of the Federal Rules of Civil Procedure] when liability questions common to the class predominate over dam- ages questions unique to class members’’ (internal quo- tation marks omitted)). To determine whether class-wide issues of law or fact predominate in any given case, the trial court must undertake a three part inquiry. ‘‘First, the court should review the elements of the causes of action that the plaintiffs seek to assert on behalf of the putative class. . . . Second, the court should determine whether gen- eralized evidence could be offered to prove those ele- ments on a class-wide basis or whether individualized October 8, 2024 CONNECTICUT LAW JOURNAL Page 59
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proof will be needed to establish each class member’s entitlement to monetary or injunctive relief. . . . Third, the court should weigh the common issues that are subject to generalized proof against the issues requir- ing individualized proof in order to determine which predominate. . . . Only when common questions of law or fact will be the object of most of the efforts of the litigants and the court will the predominance test be satisfied.’’ (Citations omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. 331–32. B Analysis The operative complaint asserts causes of action for fraud, recklessness, negligence, negligent infliction of emotional distress, breach of lease, breach of the war- ranty of habitability, breach of the management agree- ment, unjust enrichment, and a violation of CUTPA. Although the essential elements of each of these causes of action differ, the facts on which the plaintiffs rely to support their claims are the same, namely, the defen- dants’ alleged failure to maintain Barbour Gardens in a safe and habitable condition and their pattern and practice of delaying REAC inspections, concealing the health and safety hazards at Barbour Gardens, and vio- lating federal, state, and local housing laws. Because ‘‘both the factual and legal issues raised by the class certification order as to both the CUTPA and non- CUTPA counts are inextricably intertwined with each other,’’ we address the plaintiffs’ CUTPA and non- CUTPA claims collectively in this interlocutory appeal. Collins v. Anthem Health Plans, Inc., 266 Conn. 12, 29, 836 A.2d 1124 (2003); see, e.g., Standard Petroleum Co. v. Faugno Acquisition, LLC, supra, 330 Conn. 43 n.1; Macomber v. Travelers Property & Casualty Corp., 277 Conn. 617, 620, 894 A.2d 240 (2006). Page 60 CONNECTICUT LAW JOURNAL October 8, 2024
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To support their claims, the plaintiffs primarily rely on evidence in the defendants’ own records, namely, communications between their employees beginning in 2015 regarding the defendants’ efforts to delay inspec- tions and to hide housing code violations, as well as the multiple 2018 inspection reports documenting the squalid living conditions at the property, and evidence of the 2019 sewage backup and permanent relocation of all Barbour Gardens residents. As the trial court recog- nized, this generalized evidence ‘‘may pose a basis for class certification’’ for the residents of Barbour Gardens during 2018 and 2019 with respect to some claims, but the plaintiffs sought ‘‘a broad certification for tenants over a period of many years, including all past tenants’’ going back to 2004. For many past residents during this proposed class period, there is no generalized evidence in the record regarding the allegedly uninhabitable con- ditions at Barbour Gardens or the defendants’ miscon- duct. In light of the absence of such evidence prior to 2015 at the earliest, the vast majority of the proposed class members would need to adduce individualized proof to establish the defendants’ liability, and there is no evidentiary basis to support the conclusion that ‘‘common questions of law or fact will be the object of most of the efforts of the litigants and the court . . . .’’ (Internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 275 Conn. 332. Thus, the proposed class of plaintiffs is overbroad, and the pre- dominance requirement is not satisfied. See, e.g., Mazza v. American Honda Motor Co., 666 F.3d 581, 596 (9th Cir. 2012) (concluding that class-wide issues did not predominate over individualized issues because class definition was overbroad), overruled in part on other grounds by Olean Wholesale Grocery Cooperative, Inc. v. Bumble Bee Foods, LLC, 31 F.4th 651 (9th Cir.), cert. denied sub nom. StarKist Co. v. Olean Wholesale Gro- cery Cooperative, Inc., U.S. , 143 S. Ct. 424, 214 October 8, 2024 CONNECTICUT LAW JOURNAL Page 61
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L. Ed. 2d 233 (2022); Circle Click Media, LLC v. Regus Management Group, LLC, Docket No. 3:12-CV-04000- SC, 2015 WL 6638929, *12–14 (N.D. Cal. October 30, 2015) (same). See generally Babineau v. Federal Express Corp., 576 F.3d 1183, 1191 (11th Cir. 2009) (predominance requirement is not met, and ‘‘[c]ertifica- tion is inappropriate if the plaintiffs must . . . intro- duce a great deal of individualized proof or argue a number of individualized legal points to establish most or all of the elements of their individual claims’’ (inter- nal quotation marks omitted)). The plaintiffs argue that, even if the record provides no basis to justify a class period going back to 2004, the trial court nonetheless erred in denying their motion for class certification because the court had an affirma- tive obligation to certify the ‘‘readily’’ ascertainable and narrower ‘‘class of those tenants who resided [at] Bar- bour Gardens from late 2018 onward.’’ The defendants respond that, although the trial court had the discretion to redefine the class sua sponte, it did not abuse its discretion by declining to do so because the burden is on the plaintiffs, not the trial court, to propose a narrower certifiable class. We agree with the defendants. Although we urge trial courts sua sponte to consider redefining the scope of the class if the proposed definition in the operative complaint and motion for class certification is overbroad, we agree with the defendants that the trial court does not abuse its discretion when it does not do so. Our rules of practice, like rule 23 of the Federal Rules of Civil Procedure, vest the trial court with broad discre- tion to make class certification decisions. This broad discretion encompasses the authority ‘‘to control pro- ceedings and frame issues for consideration . . . .’’ (Internal quotation marks omitted.) Standard Petro- leum Co. v. Faugno Acquisition, LLC, supra, 330 Conn. 50. The trial court also can certify a partial class action Page 62 CONNECTICUT LAW JOURNAL October 8, 2024
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or create subclasses with respect to discrete issues. See, e.g., Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 25 (‘‘our rules of practice . . . permit the partial class action mechanism’’ and creation of sub- classes); see also Practice Book § 9-9 (a) (4) (‘‘[w]hen appropriate, (A) an action may be brought or main- tained as a class action with respect to particular issues, or (B) a class may be divided into subclasses and each subclass treated as a class’’). A trial court’s discretion to manage the class is ongoing, and ‘‘it is within the purview of the trial court to revisit the issue of class certification, and, if facts require, to alter the definition of the class as developments dictate . . . .’’ Rivera v. Veterans Memorial Medical Center, supra, 262 Conn. 739; see Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 40 (‘‘the trial court is authorized to monitor developments bearing on the propriety of its class certi- fication orders . . . and to amend those orders in light of subsequent developments’’); see also Practice Book § 9-9 (a) (1) (C) (class certification order ‘‘may be altered or amended before final judgment’’). ‘‘Under both the federal rule and our similar rule, a trial court’s order respecting class status is not final or irrevocable, but rather, it is inherently tentative . . . because the court remains free to modify it . . . .’’ (Citation omitted; internal quotation marks omitted.) Collins v. Anthem Health Plans, Inc., supra, 266 Conn. 40. Given the breadth of the trial court’s discretion, it clearly has the authority to limit or modify the scope of the class definitions proposed by the plaintiffs ‘‘to provide the necessary precision.’’ In re Monumental Life Ins. Co., 365 F.3d 408, 414 (5th Cir.), cert. denied sub nom. American National Ins. Co. v. Bratcher, 543 U.S. 870, 125 S. Ct. 277, 160 L. Ed. 2d 117 (2004); see, e.g., Rodriguez v. Kaiaffa, LLC, supra, 337 Conn. 290 n.29 (recognizing that ‘‘the trial court may deem it advis- able to amend the [class] definition . . . on remand’’). October 8, 2024 CONNECTICUT LAW JOURNAL Page 63
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This authority permits the trial court to act sua sponte when exercising its discretion to redefine the class as appropriate. As the United States Court of Appeals for the Second Circuit has recognized, ‘‘[a] court is not bound by the class definition proposed in the complaint and should not dismiss the action simply because the complaint seeks to define the class too broadly. . . . [Although] the court need not take on an onerous bur- den of identifying issues that may be appropriate for [class action] treatment or of constructing subclasses,’’ it should narrow and redefine the class if doing so does not impose an ‘‘undue burden . . . .’’ (Citation omit- ted.) Robidoux v. Celani, 987 F.2d 931, 937 (2d Cir. 1993); see Messner v. Northshore University Health- System, 669 F.3d 802, 825 (7th Cir. 2012) (problems with class definition ‘‘can and often should be solved by refining the class definition rather than by flatly denying class certification on that basis’’); In re Monu- mental Life Ins. Co., supra, 414 (‘‘holding [the] plaintiffs to the plain language of their [class] definition would ignore the ongoing refinement and give-and-take inher- ent in class action litigation, particularly in the forma- tion of a workable class definition’’); Finberg v. Sullivan, 634 F.2d 50, 64 n.9 (3d Cir. 1980) (‘‘[t]he [trial] court should not deny certification on account of [over- breadth] problems without considering the possibility of redefining the classes’’). There is one important caveat to these observations, which defeats the plaintiffs’ argument that the trial court erred by failing to narrow the class period in the present case. Although the trial court can and should on its own initiative consider modifying the proposed class if such a modification can be made without impos- ing an undue burden on the court, it has no affirmative obligation to do so. See United States Parole Commis- sion v. Geraghty, 445 U.S. 388, 408, 100 S. Ct. 1202, 63 L. Ed. 2d 479 (1980) (‘‘[I]t is not the [trial] [c]ourt that Page 64 CONNECTICUT LAW JOURNAL October 8, 2024
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is to bear the burden of constructing subclasses. That burden is [on] the [plaintiff] and it is [the plaintiff] who is required to submit proposals to the court. The court has no sua sponte obligation so to act.’’); Rogers v. Epson America, Inc., 648 Fed. Appx. 717, 719 (9th Cir. 2016) (rejecting plaintiff’s claim ‘‘that the [trial] court abused its discretion when it did not sua sponte redefine the proposed class and certify that’’ in light of ‘‘the princi- ple that the burden of proposing a narrower class was [the plaintiff’s], and not that of the [trial] court’’); Heaven v. Trust Co. Bank, 118 F.3d 735, 738 (11th Cir. 1997) (following denial of class certification, ‘‘[t]he [trial] court has no sua sponte obligation to subclassify; it is the plaintiff’s burden to designate an appropriate class’’); Borum v. Brentwood Village, LLC, 324 F.R.D. 1, 8 (D.D.C. 2018) (‘‘When appropriate, [trial] courts may redefine classes or subclasses sua sponte prior to certification. . . . Because it is the plaintiff, and not the court, who bears the burden of fashioning appro- priate class definitions and demonstrating that the require- ments of [r]ule 23 [of the Federal Rules of Civil Proce- dure] are met for each, it is left to the court’s discretion to choose whether to intervene in this way.’’ (Citations omitted.)). A trial court, in short, is not required to redefine a proposed class ‘‘on its own initiative,’’ and its ‘‘refusal to shoulder what, in the final analysis, is [the] plaintiff’s burden cannot be regarded . . . as an abuse of discretion.’’ Lundquist v. Security Pacific Automotive Financial Services Corp., 993 F.2d 11, 14–15 (2d Cir.), cert. denied, 510 U.S. 959, 114 S. Ct. 419, 126 L. Ed. 2d 365 (1993). Consistent with the foregoing federal authority, we conclude that the trial court did not abuse its discretion by denying the plaintiffs’ motion to certify a class of plaintiffs consisting of all residents at Barbour Gardens between the dates of June 24, 2004, and October 13, 2019, without first considering, on its own initiative, October 8, 2024 CONNECTICUT LAW JOURNAL Page 65
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whether to modify the scope of the proposed class. The plaintiffs never asked the trial court to redefine the class definition or to create a subclass consisting of plaintiffs who resided at Barbour Gardens between the years of 2018 and 2019, and, in the absence of such a request, the trial court was not required to rule on that issue. Accordingly, we affirm the trial court’s denial of the plaintiffs’ motion for class certification.13 The judgment is affirmed. In this opinion the other justices concurred.
13 Federal courts have held that, when class certification is denied because the proposed class definition is overbroad, the movant must be given a reasonable opportunity to propose a narrower class or subclasses that are certifiable. See, e.g., United States Parole Commission v. Geraghty, supra, 445 U.S. 408 (on remand, plaintiff must be afforded opportunity to request subclasses after proposed class was initially rejected); Heaven v. Trust Co. Bank, supra, 118 F.3d 738 (‘‘[when] the . . . plaintiff has no real opportunity to request certification of subclasses after his proposed class is rejected, an obligation arises for the [D]istrict [C]ourt to consider subclassification’’); Quintana v. Harris, 663 F.2d 78, 79–80 (10th Cir. 1981) (proposed class was overbroad, but plaintiff must be given reasonable opportunity to propose subclasses after denial of class certification when denial is based on structur- ing of class and when problems with broad class might be remedied by forming subclasses). Our affirmance of the trial court’s denial of class certifi- cation does not preclude the plaintiffs on remand from seeking to certify a narrower class or subclasses, because ‘‘class certification [decisions] are always interlocutory’’ and ‘‘may be altered or amended at a later date . . . .’’ (Citations omitted; internal quotation marks omitted.) Salazar-Calderon v. Presidio Valley Farmers Assn., 765 F.2d 1334, 1349–50 (5th Cir. 1985), cert. denied sub nom. Presidio Valley Farmers Assn. v. Calderon, 475 U.S. 1035, 106 S. Ct. 1245, 89 L. Ed. 2d 353 (1986); see Alger v. Dept. of Labor & Industry, 181 Vt. 309, 328–29, 917 A.2d 508 (2006) (upholding trial court’s denial of motion for class certification as overbroad but explaining that ‘‘[the] plaintiffs are not barred from seeking certification of a more precisely defined class’’ on remand). We express no opinion on the merits of any such motion should it be filed.