                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

ADRIANN BORUM, et al.,                          :
                                                :
       Plaintiffs,                              :       Civil Action No.:     16-1723 (RC)
                                                :
       v.                                       :       Re Document No.:      43
                                                :
BRENTWOOD VILLAGE, LLC, et al.,                 :
                                                :
       Defendants.                              :

                                MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION;
      GRANTING PLAINTIFFS’ MOTION FOR THE APPOINTMENT OF CLASS COUNSEL

                                     I. INTRODUCTION

       Plaintiff Adriann Borum seeks to represent a putative class of residents of her apartment

complex, Brookland Manor, whom she alleges are at risk of being displaced should Defendants

proceed with their plans to redevelop the complex, or who have already been displaced in

anticipation of the redevelopment.1 The planned redevelopment will eliminate four- and five-

bedroom apartments in the complex, and will reduce the number of three-bedroom apartments as

well. This policy, Ms. Borum claims, will have a disparate impact on hundreds of residents based

on their familial status in violation of the Fair Housing Act (“FHA”) and the D.C. Human Rights

Act (“DCHRA”). Additionally, Ms. Borum claims that Defendants have made discriminatory


       1
         One of Ms. Borum’s original co-plaintiffs and the second named representative of the
putative class, Lorretta Holloman, voluntarily dismissed her claims against Defendants on
November 22, 2017. ECF No. 55, 56. Ms. Borum’s other co-plaintiff, ONE DC, is a community
organization “comprised of members who include tenants of affordable housing properties that
are seeking to avoid displacement, preserve affordable housing, ensure fair housing, and further
equitable development in D.C.” Compl. ¶ 108, ECF No. 2. The Court found that ONE DC has
organizational standing to bring suit in its prior Memorandum Opinion. See Borum v. Brentwood
Village, LLC, 218 F. Supp. 3d 1, 19–20 (D.D.C. 2016).
statements based on familial status in violation of the FHA and the DCHRA. Therefore, she has

moved to certify a class of residents whom she believes have been harmed or are at risk of being

harmed by the proposed redevelopment and activities surrounding it, and for the appointment of

her lawyers as counsel for that class. Pls.’ Mem. P. & A. Supp. Mot. Class Cert. & Appointment

Class Counsel (“Pls.’ Mem.”), ECF No. 43-1. For the reasons set forth below, the Court grants in

part and denies in part her motion for class certification, and grants her motion for the

appointment of class counsel.


                   II. FACTUAL AND PROCEDURAL BACKGROUND

       Defendants in this action—Brentwood Associates, L.P.; Mid-City Financial Corporation;

and Edgewood Management Corporation—plan to redevelop Brookland Manor, an affordable

housing complex in the Brentwood neighborhood of Washington, D.C. Brookland Manor

currently contains 535 units, which range in size from one- to five-bedroom apartments. See Pls.’

Mot. Class Cert. & Appointment Class Counsel (“Pls.’ Mot.”), Ex. 12 at 1–2, ECF No. 43-17.

Once Brookland Manor has been transformed into the new Brentwood Village development, the

complex will contain 2,235 rental apartments and for-sale homes. Id. at 1. While today

Brookland Manor contains 75 three-bedroom apartments, 113 four-bedroom apartments, and 21

five-bedroom apartments, once Defendants have completed the redevelopment, Brentwood

Village will have zero four- and five-bedroom apartments, and only 64 three-bedroom

apartments. See Pls.’ Mot., Ex. 4 at 5–6, ECF No. 43-9. It is this planned alteration in the

composition of the complex that Ms. Borum challenges. As a resident of a four-bedroom

apartment, which she occupies with her five children (two minor and three adult), she fears that

once the redevelopment takes place, she will be, at best, stuck competing with 117 other




                                                 2
families2 for 64 three-bedroom units, or at worst, displaced altogether. Pls.’ Mem. at 4.

Additionally, she fears that even if she were able to procure a three-bedroom apartment, it would

be too small for her family. See Decl. Adriann Borum (“Borum Decl.”) ¶ 8–10, Pls.’ Mot., Ex. 2,

ECF No. 43-7.

       Defendants began the process of seeking approval for this redevelopment in October

2014, when they submitted their application for a First-Stage planned unit development (“PUD”)

approval. See Zoning Case Records, Case No. 14-18, available at

https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18. The application

was approved in 2015. Id. Defendants filed their application for Second-Stage PUD approval in

September 2016, one month after Ms. Borum had filed this action. That application is still

pending. See Zoning Case Records, Case No. 14-18A, available at

https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18A. Once that

application has been approved, Defendants will be able to begin redeveloping the property. See

generally 11 D.C. Mun. Regs. § 2408.1; see also Pls.’ Mem. P. & A. Supp. Mot. Prelim. Inj.

(“Pls.’ Mot. Prelim. Inj.”), ECF No. 4; Decl. William Merrifield ¶ 9, ECF No. 4-3.

       Along with her complaint, Ms. Borum had filed a motion for a preliminary injunction

asking the Court to bar “Defendants from filing their second-stage PUD application with the

Zoning Commission.” Pls.’ Mot. Prelim. Inj. at 15. Since Defendants filed their Second-Stage

application before the Court ruled on Ms. Borum’s motion for a preliminary injunction, she


       2
         Ms. Borum’s expert, Dr. Andrew Beveridge, defines families in two ways in his
declaration: “(a) families including only head of household, co-head of household (when
applicable), and minor children; and (b) families including head of household, co-head of
household, minor children, and other non-minor family members.” Regardless of which
definition the Court adopts, there were 118 apartments in Brookland Manor housing minor
children and their parents or guardians in January 2017. Decl. Andrew Beveridge (“Beveridge
Decl.”) at 4, ECF No. 43-6.


                                                 3
amended the relief she sought in her reply brief and asked the Court to “preliminarily enjoin

Defendants from displacing families from their homes during the adjudication of these families’

fair housing rights in this action.” Pls.’ Reply at 3, ECF No. 20.

       In response, Defendants filed a motion to dismiss on several grounds: lack of exhaustion

of administrative remedies; lack of jurisdiction under the Rooker-Feldman doctrine; the Younger

abstention doctrine; ONE DC’s lack of standing; and failure to state a claim. See Defs.’ Mem. in

Supp. Mot. Dismiss, ECF No. 16. The Court denied both motions, see Borum v. Brentwood

Village, LLC, 218 F. Supp. 3d 1 (D.D.C. 2016), and ordered the commencement of “limited

discovery for the purpose of exchanging information related to the demographics of Brookland

Manor residents as necessary to adjudicate a motion for class certification.” Scheduling Order,

ECF No. 34.

       With the materials from that discovery in hand, Ms. Borum has now moved for

certification of the following hybrid class under Rules 23(b)(2) and (b)(3):

               All households who reside or have resided at Brookland Manor in a
               three-, four-, or five-bedroom unit with one or more minor child,
               and (i) have been displaced from a three-, four-, or five-bedroom
               unit at Brookland Manor since October 1, 2014 (the date that
               Defendants proposed their First Stage PUD to the Zoning
               Commission), or (ii) are at risk of being displaced from a three-,
               four-, or five-bedroom unit at Brookland Manor.

Pls.’ Mot. at 1, ECF No. 43. She also moved for the appointment of her legal team as class

counsel. Id. at 2. For the reasons set forth below, Ms. Borum’s motion for class certification is

granted in part and denied in part, and her motion for the appointment of class counsel is granted.


                                   III. LEGAL STANDARDS

       “A district court exercises broad discretion in deciding whether to permit a case to

proceed as a class action.” Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994). However,


                                                 4
“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.

338, 350 (2011). Instead, a plaintiff “must affirmatively demonstrate [her] compliance with the

Rule—that is, [she] must be prepared to prove that there are in fact sufficiently numerous parties,

common questions of law or fact, etc.” Id. “Frequently that ‘rigorous analysis’ will entail some

overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Wal-Mart,

564 U.S. at 351. However, “Rule 23 grants courts no license to engage in free-ranging merits

inquiries at the certification stage. Merits questions may be considered to the extent—but only to

the extent—that they are relevant to determining whether the Rule 23 prerequisites for class

certification are satisfied.” Amgen Inc. v. Conn. Retirement Plans & Tr. Funds, 568 U.S. 455,

466 (2013).

       When appropriate, district courts may redefine classes or subclasses sua sponte prior to

certification. See Rule 23(c)(5); In re General Motors Corp. Engine Interchange Litigation, 594

F.2d 1106, 1129 n.38 (7th Cir.), cert. denied sub nom. General Motors Corp. v. Oswald, 444

U.S. 870 (1979); Santillan v. Gonzalez, 388 F. Supp. 2d 1065, 1072 (N.D. Cal. 2005); Am. Fin.

Sys. Inc. v. Harlow, 65 F.R.D. 94, 107 (D. Md. 1974). Because it is the plaintiff, and not the

court, who bears the burden of fashioning appropriate class definitions and demonstrating that

the requirements of Rule 23 are met for each, it is left to the court’s discretion to choose whether

to intervene in this way. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 408 (1980).

Subclasses must also satisfy all of Rule 23’s requirements in order to be certified. See D.L. v.

District of Columbia, 713 F.3d 120, 129 (D.C. Cir. 2013); see also Bynum v. District of

Columbia, 214 F.R.D. 27, 41 (D.D.C. 2003).




                                                 5
                                          IV. ANALYSIS

       Ms. Borum has moved for certification of the following hybrid class under Rules 23(b)(2)

and (b)(3):

               All households who reside or have resided at Brookland Manor in a
               three-, four-, or five-bedroom unit with one or more minor child,
               and (i) have been displaced from a three-, four-, or five-bedroom
               unit at Brookland Manor since October 1, 2014 (the date that
               Defendants proposed their First Stage PUD to the Zoning
               Commission), or (ii) are at risk of being displaced from a three-,
               four-, or five-bedroom unit at Brookland Manor.


Pls.’ Mot. at 1. For the reasons set forth below, the Court grants certification of the following

class under Rule 23(b):

               All individuals who reside at Brookland Manor in a three-, four-, or
               five-bedroom unit with one or more minor child, and are at risk of
               being displaced from a three-, four-, or five-bedroom unit at
               Brookland Manor as a direct result of the proposed redevelopment.

                                   A. Rule 23(a) Requirements

       Rule 23(a) contains four requirements for the certification of any class. It provides that

“members of a class may sue or be sued as representative parties on behalf of all members only

if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are

questions of law or fact common to the class; (3) the claims or defenses of the representative

parties are typical of the claims or defenses of the class; and (4) the representative parties will

fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). These requirements

are often referred to as “numerosity,” “commonality,” “typicality,” and “adequacy of

representation.”

       Ms. Borum contends that she has satisfied each of Rule 23(a)’s four prerequisites for her

entire proposed class, and Defendants claim that she has satisfied none. As explained below, the




                                                  6
Court finds that Ms. Borum has not satisfied the four prerequisites for the entire class she

proposes, and therefore, her entire class cannot be certified. But once her original class definition

has been divided into two subclasses, Ms. Borum does satisfy each of the four prerequisites for

the subclass of individuals who “are at risk of being displaced from a three-, four-, or five-

bedroom unit at Brookland Manor.” However, she has not yet satisfied the prerequisites for the

subclass of individuals who “have been displaced from a three-, four-, or five-bedroom unit at

Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage

PUD to the Zoning Commission).” And as explained further below, this subdivision is

appropriate because it will allow members of the class that the Court is already able to determine

satisfies the Rule 23(a) prerequisites to proceed to the next stage of this litigation without undue

delay. See Yaffe v. Powers, 454 F.2d 1362, 1367 (1st Cir. 1972) (“[U]nless a claim is patently

frivolous, [a certifying] court should ask itself: assuming there are important rights at stake, what

is the most sensible approach to the class determination issue which can enable the litigation to

go forward with maximum effectiveness from the viewpoint of judicial administration?”)

     1. Families displaced between October 1, 2014 and the conclusion of this litigation

       Ms. Borum has moved to include in her class those “who have resided at Brookland

Manor in a three-, four-, or five- bedroom unit with one of more minor child and . . . have been

displaced from [those apartments] since October 1, 2014.” Pls.’ Mot. at 1. For those individuals

she seeks damages for “monetary costs related to moving services or apartment brokerage fees

and increased transportation costs to school and work.” Compl. ¶ 123. She also seeks an

injunction for them, so that they “will have a future opportunity to reside at Brookland Manor or

the redevelopment property in a three-, four-, and five-bedroom unit.” Id. For the other group of

individuals in her proposed class, those who “are at risk of being displaced from a three-, four-,




                                                  7
or five-bedroom unit at Brookland Manor,” she only seeks an injunction that would eradicate the

disparate impact she alleges the redevelopment plan will have on minors and their guardians.

Pls.’ Reply at 22, ECF No. 52.

       “The underlying theme [of class certification] is flexibility; different cases call for

different approaches.” Lamphere v. Brown Univ., 553 F.2d 714, 719 (1st Cir. 1977). And while

the decision whether and how to certify a class is left to the district court, in some instances

“failure to limit overbroad cases by the use of appropriate subclasses may be an abuse of

discretion.” Marcello v. Regan, 574 F. Supp. 586, 591–92 (D.R.I. 1983) (citing Geraghty v. U.S.

Parole Comm’n, 579 F.2d 238, 253 (3d Cir. 1978), vacated on other grounds, 445 U.S. 388

(1980)); see also Fink v. Nat’l Sav. & Tr. Co., 772 F.2d 951, 960–61 (D.C. Cir. 1985) (“the

reviewing court may require the district court to consider on the record the possibility of

certifying subclasses”).

       Here, it is appropriate to consider those residents who have already been displaced or will

displaced before the conclusion of this litigation as a separate subclass because without this

separation, the class Ms. Borum has proposed would be overbroad and ineligible for

certification. First, Ms. Borum has moved to include in the class those individuals who have been

displaced since October 1, 2014, without specifying whether individuals included in that group

need to have been displaced because of the redevelopment in order to be included. Therefore, it

is impossible to tell from her proposed definition whether those individuals have any claims in

common, as required by Rule 23(a)(2). See Wal-Mart, 564 U.S. at 350 (“Commonality requires

the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” (quoting

Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Second, at this point, none of the

large apartments on which putative class members rely to house their families have been




                                                  8
eliminated. Therefore, the cause of displacement for any of these putative class members will not

be the mere elimination of large apartments, which is the foundational cause of the other class

members’ claims. See Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir. 1994) (“[T]here is more

to a showing of commonality than a demonstration that class plaintiffs suffered discrimination on

the basis of membership in a particular group . . . plaintiffs must make a significant showing to

permit the court to infer that members of the class suffered from a common policy of

discrimination that pervaded all of the [defendant’s] challenged [] decisions.”). Third, Ms.

Borum seeks damages only for displaced individuals, in order to reimburse them for the costs of

their displacement. Those individuals will therefore have different interests than current

residents, including Ms. Borum, who only seek an injunction that would grant them a greater

likelihood of being able to remain on the property. See Amchem Prods., Inc. v. Windsor, 521

U.S. 591, 625 (1997) (“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of

interest between named parties and the class they seek to represent.”). Accordingly, the Court

denies Ms. Borum’s motion to certify the entire class she proposes.

        As explained in Section IV.A.2, infra, once displaced individuals are removed from the

class, current residents who are at risk of displacement do satisfy each of Rule 23(a)’s four

prerequisites, including commonality and adequacy of representation. Therefore, in order to

allow those class members who do satisfy Rule 23(a)’s prerequisites the opportunity to proceed

with the litigation without undue delay, the Court exercises its discretion by separating Ms.

Borum’s proposed class into two subclasses. It does this even though the subclass of displaced

individuals does not meet the requirements of Rule 23(a) by itself, and therefore cannot be

certified at this time.




                                                 9
       When deciding whether to certify subclasses, district courts must ensure that each

subclass satisfies the requirements of Rule 23. See D.L. v. District of Columbia, 713 F.3d 120,

129 (D.C. Cir. 2013). Ms. Borum’s briefing paid a great deal of attention to residents of

Brookland Manor who she worries are at risk of being displaced by the elimination of four- and

five-bedroom apartments and the reduction in the number of three-bedroom apartments.

However, her briefing paid very little attention to those residents who have purportedly already

been displaced by Defendants’ redevelopment plans. Indeed, Ms. Borum does not point to a

single individual who has been displaced due to the proposed redevelopment since Defendants

submitted their First Stage PUD to the Zoning Commission. As such, Ms. Borum has given no

indication of how many former residents of Brookland Manor have been displaced, preventing

the Court from performing any sort of numerosity analysis for that group. A class representative

“must be prepared to prove that there are in fact sufficiently numerous parties” to satisfy Rule

23(a)(1)’s numerosity requirement. Wal-Mart, 564 U.S. at 350. Ms. Borum has not done so here.

Because Ms. Borum has not met her burden under Rule 23(a)(1), residents who have been

displaced cannot be certified as their own subclass.

       Ms. Borum would also like to include in her class individuals who are currently at risk of

being displaced, and are then displaced during the pendency of this litigation, so that they might

recover money damages just like former residents who have already been displaced. Compl. ¶

123. However, by definition, none of these individuals exist yet. Because these individuals do

not yet exist, and indeed may never exist, if, for example, Plaintiffs succeed in securing an

injunction that allows the entire class to remain on the property, this subgroup cannot satisfy

Rule 23(a)’s numerosity requirement either.




                                                10
       If, however, this group does come into existence following the Court’s class certification

order, or if Plaintiffs are subsequently able to identify individuals who have already been

displaced because of the redevelopment, Ms. Borum may renew her motion for certification of

this subclass. But it should be noted that unless Ms. Borum has also been displaced due to the

redevelopment plan by then, her injury (a risk of displacement) will not be typical to those

putative class members who have at that point already been displaced. Therefore, unless

Plaintiffs have added a new named plaintiff whose injury is typical of the proposed subclass, and

who will be able to fairly and adequately represent the interests of that class, Ms. Borum’s

renewed motion for class certification would likely be denied then as well.

             2. Families still living in three-, four-, or five-bedroom apartments

       The remainder of Ms. Borum’s proposed class qualifies for certification as a subclass. As

explained below, the Court finds that a class of individuals (rather than households) who are

living in three-, four-, and five-bedroom apartments that contain minor children and their

guardians and are at risk of being displaced solely due to the redevelopment’s elimination of

four- and five-bedroom apartments and its reduction in the number of three-bedroom apartments

satisfy the requirements of Rule 23(a).

                                          a. Numerosity

       Ms. Borum first contends that she has established that her proposed class is “so numerous

that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1); see also Pls.’ Mem. at 10.

“Typically, a class in excess of 40 members is sufficiently numerous to satisfy this requirement,”

Lindsay v. Gov’t Emps. Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008), though “[t]here is no specific

threshold that must be surpassed in order to satisfy the numerosity requirement,” Taylor v. D.C.

Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007).




                                                11
       Based on the most recently available data, Ms. Borum’s expert, Dr. Andrew Beveridge,

estimates that there were 118 families (totaling 543 people) in three-, four-, and five-bedroom

apartments in Brookland Manor in January 2017. Beveridge Decl. ¶ 9.3 Therefore, Ms. Borum

argues that the class she proposes is “so numerous that joinder would be impracticable.” Pls.’

Mem. at 10. Defendants object to Ms. Borum’s claim of numerosity on several grounds, which

the Court addresses in turn below.


                                     i. Occupancy Standards

       Defendants spend a large portion of their opposition brief attacking the analysis of Ms.

Borum’s expert, Dr. Andrew Beveridge, and his estimation of how many individuals are at risk

of being displaced by the redevelopment plan. See Defs.’ Opp’n Pls.’ Mot. Class Cert. (“Defs.’

Opp’n”) at 9–10, 12–24, ECF No. 45. Dr. Beveridge analyzed two things in his declaration: 1)

“[t]he number of family households residing in three-, four- and five-bedroom apartments at

Brookland Manor and the family composition of those households,” and 2) “[t]he number of

family households living at Brookland Manor, their family composition, and the number of

bedrooms for those family compositions required by applicable law and regulation.” Beveridge

Decl. ¶ 3. In determining the appropriate number of bedrooms for these families, Dr. Beveridge

used the D.C. Housing Authority’s voucher size determination regulations, id. ¶ 6, and found that

in 2017, when excluding non-parent adults from the equation, 81 families totaling 419 people

required apartments with three bedrooms or more, and including non-parent adults, 96 families

totaling 486 people did. Beveridge Decl. tbls. 5 & 7. Defendants attack this analysis, arguing that




       3
         Defendants’ expert, Dr. William Clark, agrees that minor children and their guardians
resided in 118 of Brookland Manor’s 144 three-, four-, and five-bedroom apartments in January
2017. See Decl. William Clark (“Clark Decl.”) at 4, ECF No. 44-1 (sealed).


                                                12
Dr. Beveridge used an incorrect standard in determining how many bedrooms each family

needed, thereby inflating the number of individuals who may be harmed by the redevelopment.

See Defs.’ Opp’n at 13. Defendants claim that Dr. Beveridge should have used the D.C. Housing

Code’s general occupancy standard, the DCHRA’s occupancy standard, or the FHA’s occupancy

standard (a statement of policy). See Defs.’ Opp’n at 14–19.

       The question of what size apartment class members require based on their family size

will be crucial in determining whether Defendants’ redevelopment plan has a disparate impact on

residents based on their familial status. However, requiring a determination of which occupancy

standards apply to which families at this stage in the litigation amounts to a requirement that

each class member prove that they will prevail on the merits of their claim. “The concern of Rule

23(a)(1) . . . is membership in the class, not likelihood of success on the merits.” Coleman ex rel.

Bunn v. District of Columbia, 306 F.R.D. 68, 77 (D.D.C. 2015) (citing McLaughlin on Class

Actions § 4:5 (11th ed. 2014) (a determination under Rule 23(a)(1) “does not entail an

assessment of how many putative class members ultimately will have meritorious claims”)).

“Merits questions may be considered to the extent—but only to the extent—that they are relevant

to determining whether the Rule 23 prerequisites for class certification are satisfied.’” D.L. v.

District of Columbia, 713 F.3d 120, 125–26 (D.C. Cir. 2013) (quoting Amgen Inc. v. Conn. Ret.

Plans & Tr. Funds, 568 U.S. 455, 466 (2013)). But determining that numerosity cannot be

established because only a handful of class members will eventually prevail on the merits of their

claim “puts the cart before the horse.” Lightfoot v. District of Columbia, 246 F.R.D. 326, 336

(D.D.C. 2007). “[F]or purposes of class certification, the question is how many individuals fall

within the class as currently defined.” Id.




                                                 13
       Defendants may be correct that Dr. Beveridge used the wrong standard in determining

how many bedrooms each family requires, thereby inflating the number of individuals who will

actually be forced to move should the redevelopment proceed unaltered. But such a standard is

not relevant to determining how many families are currently living in large apartments who are

at risk of displacement because they will not be able to move back into similarly large

apartments when the redevelopment is complete, as the class is “currently defined.” Id. At this

point in the proceedings, Ms. Borum has demonstrated that that group, so defined, is sufficiently

large to satisfy Rule 23(a)’s numerosity requirement.


                                      ii. Non-Parental Adults

       Next, Defendants argue that “[t]he class which plaintiff[] define[s] is overbroad and runs

contrary to this Court’s admonition because it seeks to include individuals not qualifying for

familial status under the FHA and the DCHRA.” Defs.’ Opp’n at 5. The admonition to which

Defendants are referring is the sentence in a footnote in the Court’s prior ruling on Plaintiffs’

motion for a preliminary injunction, in which the Court noted that “by a plain reading of the

statutory text, the FHA protects only minor children living with parents (or similar guardians).”

Borum, 218 F. Supp. 3d. at 26 n.13 (citing 42 U.S.C. § 3602(k)). It continued that “a group of

people cannot talismanically receive protection under the FHA just because one of them happens

to be a parent domiciled with a minor child.” Id. However, while those individuals may not

“talismanically” receive protection under the FHA, they do receive protection when they are

persons “aggrieved” under the statute, as explained below.

       “[I]n order to maintain a class action, each member of the class must have standing to

assert her own claims against the defendant.” Fort Worth Emps.’ Ret. Fund v. J.P. Morgan

Chase & Co., 862 F. Supp. 2d 322, 331 (S.D.N.Y. 2012). The FHA provides that it shall be



                                                 14
unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate

for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because

of . . . familial status,” 42 U.S.C. § 3604(a), or to “make, print, or publish, or cause to be made,

printed, or published any notice, statement, or advertisement, with respect to the sale or rental of

a dwelling that indicates any preference, limitation, or discrimination based on . . . familial status

. . . or an intention to make any such preference, limitation, or discrimination.” 42 U.S.C. §

3604(c). Familial status is defined as “one or more individuals (who have not attained the age of

18 years) being domiciled with (1) a parent or another person having legal custody of such

individual or individuals; or (2) the designee of such parent or other person having such custody,

with the written permission of such parent or other person.” 42 U.S.C. § 3602(k).

       One avenue of recourse for violations of 42 U.S.C. § 3604 is for “aggrieved persons” to

“commence a civil action in an appropriate United States district court or State court not later

than 2 years after the occurrence or the termination of an alleged discriminatory housing

practice.” 42 U.S.C. § 3613.4 An “aggrieved person” is defined as anyone who “(1) claims to

have been injured by a discriminatory housing practice; or (2) believes that such person will be

injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(i).

       The current language of the “familial status” and “aggrieved person” provisions were

added to the Fair Housing Act in 1988. “Congress expanded the Fair Housing Act to protect

against familial status discrimination in light of an express concern for the plight of single-parent

families, young families with children, and poor families.” United States v. Branella, 972 F.



       4
          The DCHRA similarly provides that “[a]ny person claiming to be aggrieved by an
unlawful discriminatory practice shall have a cause of action in any court of competent
jurisdiction for damages and such other remedies as may be appropriate.” D.C. Code § 2-
1403.16.


                                                 15
Supp. 294, 297 (D.N.J. 1997). And “[i]n amending the definition of ‘aggrieved person,’

Congress intended to extend broad standing principles to those seeking redress under the FHA.

The House Judiciary Committee commented that the term ‘aggrieved persons’ in the 1988

amendments ‘adopts as its definition language similar to that contained in . . . existing law, as

modified to reaffirm the broad holdings of [the Supreme Court’s decisions in Gladstone and

Havens Realty].’” Gorski v. Troy, 929 F.2d 1183, 1188 (7th Cir. 1991) (citing H.R. Rep. No.

711, 100th Cong., 2d Sess., reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2184

(1988)). ).

        In Gladstone, the Court had held that, because Congress intended standing under the

FHA “to extend to the full limits of Art. III, the normal prudential rules do not apply[.] [A]s long

as the plaintiff suffers actual injury as a result of the defendant’s conduct, he is permitted to

prove that the rights of another were infringed.” Gladstone, Realtors v. Vill. of Bellwood, 441

U.S. 91, 103 n.9 (1979). For example, white homeowners could challenge two real estate

brokerage firms’ practice of “steering” black homebuyers and white homebuyers to different

neighborhoods based on their race, a violation of the FHA, even when the white homeowners

who sued had not been steered to a different neighborhood based on their race, but rather already

lived in the neighborhood to which black homebuyers were being steered. Id at 111–12. Their

standing was based in “the transformation of their neighborhood from an integrated to a

predominantly Negro community[,] depriving them of ‘the social and professional benefits of

living in an integrated society.’” Id. The Court was persuaded that the white residents had

alleged actual injury caused by the discrimination, including “the loss of social and professional

benefits,” as well as “economic injury” in the form of the “absolute or relative diminution in

value of the individual respondents’ homes.” Id. at 115.




                                                  16
       As Ms. Borum points out in her reply, courts in other circuits have recognized the broad

meaning of “aggrieved person” in the familial status context, and have allowed other co-residents

to challenge policies that discriminate against families, similar to the way that white residents

may challenge policies that discriminate based on race, even when those white residents are not

the ones being discriminated against, but have still suffered a concrete injury. See Pls.’ Reply at

18, 18 n.14. Ms. Borum alleges that putative class members in this case, including non-parental

adults living in large apartments with minor children and their guardians, are “at risk of being

displaced from a three-, four-, or five-bedroom unit at Brookland Manor” by a policy that she

hopes to prove has a disparate impact on individuals based on their familial status. If proven,

such a risk would be a cognizable injury capable of conferring Article III standing. As such, the

Court finds that non-parental adults living with minor children and their guardians in three-,

four-, and five-bedroom apartments in Brookland Manor have standing to sue under the FHA.

And because they stand to suffer the same injury-in-fact as the parents and minors contained

within the class—displacement due to the Defendants’ redevelopment plan—and seek the same

relief—an injunction ordering Defendants to alter their redevelopment plan in a way that

eliminates its disparate impact on families—they are properly counted as members of the class

for the purposes of numerosity.


                           iii. Residents of Three-Bedroom Apartments

       Defendants also argue that Ms. Borum’s “inclusi[on] in the headcount of families living

in 3BR apartments when the record is uncontradicted that the Redevelopment Plan will include

at least 64 3BR apartments” is another “glaring deficienc[y]” in her numerosity analysis. Defs.’

Opp’n at 7. Defendants contend that this is a deficiency because fewer than 64 families currently

occupy the 75 three-bedroom apartments at Brookland Manor, and therefore are at no risk of



                                                 17
being displaced. Id. However, as Ms. Borum points out, that contention will be incorrect if “there

are not enough larger apartments in the planned development to house appropriately all the

families currently living at Brookland Manor.” Pls.’ Reply at 5. In that case, “families in three-

bedroom apartments are at just as much risk of displacement as those in four- or five-bedroom

apartments.” Id. While some families currently living in three-bedroom apartments will likely be

able to stay in such apartments, and therefore will not be harmed by Defendants’ actions, others,

because they will be competing with families currently residing in four- and five-bedroom

apartments, will be unable to move into one of the 64 new three-bedroom apartments. Even

though, by Defendants’ estimate, there were only 31 families living in three-bedroom apartments

in 2017, the number of families that may be displaced from their four- or five-bedroom

apartments is far larger than 33. See Beveridge Decl. tbl. 1. Thus, when the families displaced by

the elimination of the four- and five- bedroom apartments are included in the equation, more than

64 families will be competing for three-bedroom apartments. Therefore, families in three-

bedroom apartments also currently suffer a risk of displacement, and are properly included in the

class.


                    iv. Families Whose Minor Children Have Now Turned 18

         Defendants next question Ms. Borum’s inclusion in her headcount of families whose

children were minors on October 1, 2014 (the date the First-Stage PUD application was filed) or

on August 26, 2016 (the date the Complaint was filed), but have now turned 18, or will before

2020, when the anticipated next phase of the redevelopment plan proceeds. Defs.’ Opp’n at 11.

Specifically, Defendants claim that 38% of the families occupying large apartments as of June

2017 will no longer qualify for familial status protection by 2020. Id. at 27. Ms. Borum does not

respond to the contention that households with children who have since turned 18 and no longer



                                                 18
include any minors should not be counted, but does point to the fact that her expert did in fact

calculate the number of families with minor children occupying large apartments with data from

January 2017. See Pls.’ Reply at 10. Ms. Borum explains that she could not calculate the number

of households more precisely because documents containing Brookland Manor residents’

birthdays were not released to her, and therefore her expert was not able to calculate the number

of apartments containing minor children in June 2017, or thereafter. Id. at 10 n.8.

       Plaintiffs must have live claims at the time of class certification. See Sosna v. Iowa, 419

U.S. 393, 403 (1975). Individuals living in apartments that no longer have minor children no

longer fit within the class definition of people residing in large apartments with minor children

and their guardians who are at risk of displacement. Therefore, individuals in households that no

longer contain minor children cannot be counted as class members going forward. However,

Defendants have not argued that excluding the residents of households that recently housed

minor children, but no longer do, from the class member count decreases the number of putative

class members to a number below forty residents. See Barnes v. District of Columbia, 242 F.R.D.

113, 121 (D.D.C. 2007) (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d

Cir. 1995) (numerosity presumed at forty class members). Additionally, the number of

households that aged out of the class definition between January 2017 and the certification of

this class is likely small, and according to Defendants’ expert, likely fewer than 45. See Clark

Decl. at 6. As such, with a count of 118 apartments housing 543 people as recently as last year,

the Court finds that Ms. Borum has established numerosity, even excluding those households,

which are likely few in number, that no longer contain minor children.




                                                19
                                    v. Impracticability of Joinder

        In order to satisfy Rule 23(a)(1)’s numerosity requirement, a class must be so numerous

that joinder would be impracticable. Defendants have argued that joinder in this case would not

be impracticable because class members will be easily identifiable and all live in the same

apartment complex. See Defs.’ Opp’n at 43–44. In support of this argument, Defendants cite to

numerous cases in which courts held that joinder was practicable where class members lived near

each other and could be easily reached. However, Defendants’ argument regarding the

practicability of joinder for the most part relies on the contention that the plaintiff class is too

small, when properly calculated, for joinder to be impracticable. As explained above, the

plaintiff class contains hundreds of individuals—far more than the minimum of forty that creates

a presumption of the impracticability of joinder. Lightfoot v. District of Columbia, 246 F.R.D.

326, 335 (D.D.C. 2007) (“Courts in this District have generally found that the numerosity

requirement is satisfied and that joinder is impracticable where a proposed class has at least forty

members.”) (citing Bynum v. District of Columbia, 214 F.R.D. 27, 32 (D.D.C. 2003)).

        As explained in Coleman ex rel. Bunn, apart from the number of class members,

“additional factors that courts consider in assessing the practicability of joinder include: (1)

judicial economy arising from avoidance of a multiplicity of actions; (2) geographic dispersion

of class members; (3) size of individual claims; (4) financial resources of class members; and (5)

the ability of claimants to institute individual suits.” Coleman ex rel. Bunn v. District of

Columbia, 306 F.R.D. 68, 80 (D.D.C. 2015) (internal quotation marks omitted) (citing Newberg

on Class Actions § 3:12 (5th ed. 2014)).

        This case involves two claims—disparate impact and discriminatory statements—which

can both be addressed through an injunction. As such, adjudicating each class members’ claims




                                                  20
together will save resources for both the parties and the Court. And while the class members in

this case are not dispersed—indeed, they are about as geographically concentrated as class

members can be—and can be easily identified, many of them lack the resources to bring a

complex civil rights suit on their own. In some cases in which class members are geographically

compact and not too numerous, joinder may not be impracticable. See Frazier v. Consol. Rail

Corp., 851 F.2d 1447, 1456 (D.C. Cir. 1988) (finding that district court’s decision not to certify a

class of 28 individuals who all lived “within a reasonable distance of the district court” was

soundly within its discretion). But in a case such as this, with hundreds of class members, where

many class members are low income, and many are minor children, the Court finds that to

proceed through joinder rather than class action would not only overly burden putative class

members, but also very likely waste judicial resources. As such, the Court finds that Ms. Borum

has demonstrated that the putative class is “so numerous that joinder of all members is

impracticable.” Fed. R. Civ. P. 23(a)(1).

                                            b. Commonality

       Ms. Borum also contends that she satisfies Rule 23(a)’s commonality requirement

because she is challenging a single policy or practice that has a disparate impact on Brookland

Manor residents based on their familial status. Pls.’ Mem. at 11–14. Commonality requires a

finding that there are “questions of law or fact common to the class,” Fed. R. Civ. R. 23(a)(2). In

other words, such claims “must depend upon a common contention . . . that is capable of

classwide resolution—which means that the determination of its truth or falsity will resolve an

issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc.

v. Dukes, 564 U.S. 338, 350 (2011). Ms. Borum argues that since the lawsuit in this case is

premised on the single policy of eliminating four- and five-bedroom apartments and reducing the




                                                 21
number of three-bedroom apartments, the question of Defendants’ liability based on disparate

impact analysis is conducive to class adjudication.

       Defendants respond that Ms. Borum has not demonstrated that all of the putative class

members “suffer[ed] the same injury.” Defs.’ Opp’n at 38 (quoting Wal-Mart, 564 U.S. at 349).

They continue that “District of Columbia precedent establishes that the alleged policy or practice

must affect all members of the class in the same way to establish commonality, and plaintiff, at a

minimum, must offer evidence that the class members have in common the elements of those

claims.” Id. (citing Parker v. Bank of Am., N.A., 99 F. Supp. 3d 69, 80 (D.D.C. 2015)).

Defendants contend that Ms. Borum has not demonstrated that all members of the putative class

will be affected by the policy in the same way because the type of injury sustained by each

plaintiff will be “a product of numerous factual inquiries such as how many individuals within a

particular apartment enjoy familial status protection[;] which subsidy program, if any, applies to

the specific family[;] what occupancy standard applies to the family[;] what size apartment is

dictated by application or the correct occupancy standard[;] whether alternative apartment

configuration, such as adjoining units, represent an effective measure to avert injury[;] and

whether any particularized defenses (as are applicable to Plaintiff Holloman)5 apply.” Id. at 38–

39.


       5
         Defendants claim that prior to her move from Brookland Manor and dismissal of her
claims, Ms. Holloman was “in default of her lease due to non-payment of rent 28 times during
her tenancy,” and had been “sent a Notice of Proposed Termination of Tenancy on June 6,
2017.” Defs.’ Opp’n at 30 n.27. They also claim that she was “in default of her lease (should her
Declaration be believed) because she [wa]s housing an alleged daughter who has not been
declared in her lease and in her certifications to the landlord.” Id. “Accordingly,” they claim,
“there are a myriad of potentially dispositive additional issues applicable to Plaintiff Holloman
but not common to the class which make her an inadequate class representative and may cause
her to not be a tenant when this Court reaches the merits of this controversy.” Id. The Court need
not address these issues, as Ms. Holloman is no longer a tenant and has withdrawn from this
lawsuit. ECF No. 55, 56.


                                                22
       “As is now well recognized, the class action commonality criteria are, in general, more

easily met when a disparate impact rather than a disparate treatment theory underlies a class

claim.” Garcia v. Johanns, 444 F.3d 625, 632 (D.C. Cir. 2006) (quoting Stastny v. S. Bell Tel. &

Tel. Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980)). While some of the issues Defendants raise may

be relevant to determining whether the redevelopment does have a disparate impact on residents

based on their familial status, they would serve as components in the overall calculation of

whether the policy has a disparate impact. That does not change the fact that, if Ms. Borum’s

claim of disparate impact is proven, all class members will have suffered the same injury (the

risk of being displaced). See Wal-Mart, 564 U.S. at 349–350 (“Commonality requires the

plaintiff to demonstrate that the class members ‘have suffered the same injury.’” (quoting

Falcon, 457 U.S. at 157)). Class members need not be identically situated. “[F]or purposes of

Rule 23(a)(2) even a single a common question will do.” Id. at 359 (internal quotation marks and

citations omitted). Here, the question of whether this redevelopment will have a disparate impact

based on familial status is one such common question. As such, Ms. Borum has satisfied Rule

23(a)(2)’s commonality requirement.

                                           c. Typicality

       Ms. Borum next contends that her claims are typical of all class members’ claims,

because she “assert[s] rights under both the FHA and DCHRA based on the systematic actions of

the Defendants.” Pls.’ Mem. at 15. Defendants claim that Ms. Borum’s claim is not typical

because she has yet to suffer any displacement and is not at risk of being displaced until at least

late 2020. Defs.’ Opp’n at 36–37. Additionally, Defendants argue that Ms. Borum’s claim is not

typical of the class’s because she has “non-protected individuals” (her adult children) living with

her, and the protected individuals in her apartment (Ms. Borum and her two minor children)




                                                 23
could be properly placed within a two-bedroom apartment, of which there will be plenty in the

redeveloped Brentwood Village. Id. at 37.

       Rule 23(a)(3) requires a plaintiff to show that “the claims or defenses of the

representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).

Generally, “[t]he commonality and typicality requirements . . . tend to merge.” Wal-Mart, 564

U.S. at 349 n.5. “Both serve as guideposts for determining whether under the particular

circumstances maintenance of a class action is economical and whether the named plaintiff’s

claim and the class claims are so interrelated that the interests of the class members will be fairly

and adequately protected in their absence.” Falcon, 457 U.S. at 158 n.13. Typicality, however,

derives its independent legal significance from its ability to “screen out class actions in which the

legal or factual position of the representatives is markedly different from that of other members

of the class even though common issues of law or fact are present.” 7A Charles Wright & Arthur

Miller, Federal Practice and Procedure § 1764 (3d ed. 2017).

       Here, Defendants have not demonstrated that Ms. Borum’s claims differ significantly

from those of other class members who are still residing at Brookland Manor. The claims that

she brings, and the claims that the class as a whole will bring, are claims of disparate impact and

discriminatory statements under state and federal law, the resolution of which will be subject to

common proof (i.e. the policy will either have a disparate impact on residents based on their

familial status, or it will not). And, if Defendants’ argumentation regarding the numerosity and

commonality prongs of Rule 23(a) are any indication, the defenses that Defendants claim apply

to Ms. Borum will also be the defenses they use to defend against the claims of other class

members. Therefore, it is clear that Ms. Borum’s claims, and the defenses she will need to




                                                 24
address when this case is decided on the merits, will be typical of the class as a whole. As such,

she meets the requirements of Rule 23(a)(3).

                                   d. Adequacy of Representation

       Last, Ms. Borum contends that she and her attorneys “will fairly and adequately protect

the interests of the class.” Fed. R. Civ. P. 23(a)(4); see Pls.’ Mem. at 16–17. “The adequacy

inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the

class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citing

Falcon, 457 U.S. at 157–158, n.13). It “mandates an inquiry into the zeal and competence of the

representative’s counsel and into the willingness and ability of the representative to take an

active role in and control the litigation and to protect the interests of absentees.” Nat’l Ass’n for

Mental Health, Inc. v. Califano, 717 F.2d 1451, 1458 (D.C. Cir. 1983) (citing Horton v. Goose

Creek Indep. Sch. Dist., 677 F.2d 471, 488 (5th Cir. 1982)).

       Defendants claim that Ms. Borum has not met the adequacy requirement for several

reasons. First, they claim that Ms. Borum has a conflict of interest with a substantial number of

putative class members because there is a “significant disagreement within the class” about

whether the redevelopment should go forward as currently planned. Defs.’ Opp’n at 32. In

support of this contention, Defendants submitted declarations from thirty putative class members

expressing “support of the Redevelopment Plan” and “disapproval of the instant litigation.” Id. at

33. Defendants also submitted a letter supporting the redevelopment plan signed by tenants of

large apartments, as well as individual letters of support. Id. at 33–34.

       However, none of these declarations or letters make clear that the signatories or authors

knew that the redevelopment would not contain apartments as large as the ones they are currently




                                                  25
living in, or that that is why Ms. Borum and DC ONE have sued.6 Instead, the declarations

vaguely mention that the signatories support the redevelopment and oppose the litigation. See

Attach. to Ex. 5 to Decl. William Casano, ECF No. 47-4. These vague statements are consistent

with the natural sentiment that the signatories oppose litigation that will prevent them from

receiving a new apartment in a newly redeveloped neighborhood, not that they are opposed to

receiving a new apartment in a newly redeveloped neighborhood that also contains large

apartments. The declarations simply do not indicate a conflict between the signatories’ desires

and the actual relief sought by Ms. Borum. However, even if it were indisputably true that these

putative class members supported the redevelopment and elimination of large apartments, and

therefore opposed litigation attempting to secure a number of large apartments, these putative

class members’ positions would not necessarily doom the certification of this class.

       Defendants cite to several cases to support their contention that courts should not certify

classes when some of the putative class members support the position of the defendant rather

than the plaintiff. See Defs.’ Opp’n at 35–36. However, in each of the cases cited, the interests of

the named plaintiffs were deemed to be in actual conflict with those of the dissenting class

members. For example, in Shulman v. Ritzenberg, forty-seven of fifty-three class members

submitted affidavits explaining, among other things, that “that they d[id] not believe plaintiff’s

conduct [wa]s consistent with the best interests of the joint ventures of which they [we]re


       6
          Ms. Borum has also raised other issues with these declarations, highlighting that “there
are serious questions about whether the declarants were provided accurate, unbiased information
when asked to sign declarations.” Pls.’ Reply at 19. She claims that some declarants now believe
that the lawsuit and the declarations were “inaccurately described to them,” and that “[o]ne
declarant even stated that she did not ever sign a declaration at all and had never seen the
declaration until presented to her by Plaintiffs’ counsel.” Id. at 19–20. While the Court is
troubled by these accusations, it need not determine the reliability of these declarations at this
time, as the declarations do not demonstrate a direct conflict between Ms. Borum and the
declarants.


                                                 26
members.” 47 F.R.D. 202, 207 (D.D.C. 1969). In Schy v. Susquehanna Corp., 80.8% of

stockholders approved of the action, the issuance of preferred stock for use in effectuating a

merger, that plaintiff was challenging. 419 F.2d 1112, 1116–17 (7th Cir. 1970). And in Spano v.

Boeing Co., the court found that adequacy of representation had not been proven when the

proposed class was defined so broadly that it included individuals who would actually be harmed

by the relief plaintiffs sought. 633 F.3d 574, 587 (7th Cir. 2011). Mayfield v. Dalton was unique

among the cases cited by Defendants, as it approved of a district court’s decision to deny class

certification on adequacy grounds without proof of conflict when there may have been “people

among the broad class proposed [] who did not oppose the [challenged policy], and who, in fact,

approved of it and wished the policies fully enforced.” 109 F.3d 1423, 1427 (9th Cir. 1997).

       In response, Ms. Borum cites to examples where courts found that disagreement among

class members did not defeat a plaintiff’s claim of adequacy where the disapproving class

members’ interests were adequately represented by the defendants. See Pls.’ Reply at 21–22. The

Court need not decide which philosophy should prevail, as in this case there does not appear to

be any substantial conflict between Ms. Borum’s interests and the interests of other putative class

members, even the ones who submitted declarations supporting the redevelopment. As Ms.

Borum explains, she did not file suit in order to permanently impede the redevelopment of

Brookland Manor, but rather to ensure that she and other residents would not be displaced by the

redevelopment in a way that discriminated against them based on their familial status. See Pls.’

Reply at 19 n.16. As such, the only class members whose interests conflict with Ms. Borum’s

would be those currently residing in large apartments who wish for those large apartments to be

eliminated during the redevelopment. Since there is no evidence that any such resident exists, the




                                                27
Court finds that there is no substantial conflict between Ms. Borum’s interests and those of the

putative class.

       Defendants also argue that Ms. Borum cannot serve as an adequate representative of the

class when she “lack[s] any real and immediate injury or threat of injury.” Defs.’ Opp’n at 28.

This purported lack of a threat of injury is due to her household containing several non-parental

adults whom Defendants argue are not entitled to protection under the FHA or DCHRA. Id. at

28–29. By excluding the non-covered adults, Defendants argue that covered members of Ms.

Borum’s family would be able to fit into an apartment with two bedrooms or fewer, of which

there will be plenty in the redeveloped complex. Id. In support of this contention, Defendants cite

to E. Tex. Motor Freight Sys. Inc. v. Rodriguez, an employment discrimination case in which the

Supreme Court held that plaintiffs who had already been determined to lack the necessary

qualifications for the employment at issue could not have suffered any injury as a result of the

employer’s alleged discriminatory practices, and therefore could not adequately represent a class

of plaintiffs challenging the discriminatory policy. 431 U.S. 395, 403 (1977); Defs.’ Opp’n at

31–32. However, in that case, it had already been determined after a trial on the merits, which

was held prior to the debate over class certification, that the plaintiffs had not been harmed by

the challenged policy. See Rodriguez v. E. Tex. Motor Freight, Inc., No. SA-71-CA-302, 1973

WL 200, at *1 (W.D. Tex. Mar. 22, 1973). As such, no question of fact remained as to whether

they were appropriately members of the class being considered.

       Here, Ms. Borum has alleged injuries under the FHA and DCHRA, both past

(discriminatory statements) and future (displacement that disparately impacts families). These

allegations are sufficient to make her an adequate representative. Whether she and the putative

class may succeed on the merits of their disparate impact and discriminatory statement claims are




                                                 28
questions to be determined on summary judgment or at trial, but not at the class certification

stage. For now, Ms. Borum has alleged the same type of injury to herself as she alleges will be

suffered by other members of the putative class. As such, she is an adequate representative to

bring these claims on behalf of the class. And because, as explained above, she has met each

requirement of Rule 23(a), the Court next turns to the question of whether she has satisfied the

requirements of Rules 23(b)(2).7 See Comcast Corp. v. Behrend, 569 U.S 27, 33 (2013) (“[A]

party must not only be prepared to prove that there are in fact sufficiently numerous parties,

common questions of law or fact, typicality of claims or defenses, and adequacy of

representation, as required by Rule 23(a),” but “must also satisfy through evidentiary proof at

least one of the provisions of Rule 23(b).” (internal citations and quotation marks omitted)),

                                         B. Rule 23(b)(2)

       Defendants argue that Ms. Borum has not demonstrated that her class meets the

requirements of Rule 23(b)(2), a type of class action that may be maintained when “the party

opposing the class has acted or refused to act on grounds that apply generally to the class, so that

final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a

whole.” Fed. R. Civ. P. 23(b)(2); see Defs.’ Opp’n at 39. “By virtue of its requirement that the

plaintiffs seek to redress a common injury . . . Rule 23(b)(2) operates under the presumption that

the interests of the class members are cohesive.” Lemon v. Int’l Union of Operating Eng’rs’,

Local No. 139, AFL–CIO, 216 F.3d 577, 580 (7th Cir. 2000). “The key to the (b)(2) class is ‘the



       7
         Ms. Borum also moved for class certification under Rule 23(b)(3) in order to obtain
damages for class members who have already been displaced or are displaced during the
pendency of this litigation. However, as explained above, the Court treats these putative class
members as a distinct subclass and denies certification of this subclass because it does not meet
the requirements of Rule 23(a). As such, the Court need not determine whether those groups
meet the requirements of Rule 23(b)(3).


                                                 29
indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct

is such that it can be enjoined or declared unlawful only as to all of the class members or as to

none of them.’” Wal-Mart, 564 U.S. at 360 (quoting Richard A. Nagareda, Class Certification in

the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). “As a corollary to this principle,

certification is generally inappropriate in actions raising significant individual liability or defense

issues,” Lightfoot v. District of Columbia, 273 F.R.D. 314, 329 (D.D.C. 2011), or “when each

individual class member would be entitled to a different injunction or declaratory judgment

against the defendant.” Wal-Mart, 564 U.S. at 360. But “cases in the civil rights field are

illustrative of the types of class actions suitable for certification under (b)(2).” Taylor v. Dist. of

Columbia Water & Sewer Auth., 241 F.R.D. 33, 47 (D.D.C. 2007) (internal citation and

quotation marks omitted).

        Defendants assert that Rule 23(b)(2)’s requirements have not been met because, in their

opinion, not all class members are similarly situated. For example, Defendants argue that,

occupants of three-bedroom apartments will not be impacted by the redevelopment in the same

way as residents of four- and five-bedroom apartments, nor will occupants of apartments that

contain multiple small families be impacted in the same way as apartments that contain one large

one. Defs.’ Opp’n at 39. Because these various class members are not identically situated,

Defendants claim that “it cannot be concluded that any single injunction or declaratory judgment

would provide relief to each member of the class.” Id.

        However, as Ms. Borum explains in her motion for class certification, she is seeking an

injunction that would do two things: require “Defendants to modify their redevelopment plan in a

manner so as to eradicate disparate impact,” Pls.’ Reply at 22, and preclude “Defendants from

making further statements that discriminate against families.” Pls.’ Mem. at 19. Ms. Borum is




                                                   30
not requesting any particular remedy as to any particular family. Because Ms. Borum has

challenged a single policy and a single set of statements, whose harm, should liability be found,

could be remedied by court orders applicable to all class members, she has demonstrated that this

suit satisfies the requirements of Rule 23(b)(2).

                                         C. Class Counsel

       Ms. Borum also moves, unopposed, for the appointment for her legal team as class

counsel. See Pls.’ Mem. at 24–25. Rule 23(g) provides that a court must appoint

                 adequate class counsel to represent the class after considering: (1)
                 the work counsel has done in identifying or investigating potential
                 claims in this action, (2) counsel’s experience in handling class
                 actions, other complex litigation, and claims of the type asserted in
                 the action, (3) counsel’s knowledge of the applicable law, and (4)
                 the resources counsel will commit to representing the class.

Johnson v. District of Columbia, 248 F.R.D. 46, 58 (D.D.C. 2008) (internal quotation marks and

citation omitted). Ms. Borum’s legal team, comprised of multiple attorneys with experience in

complex civil and civil rights litigation, meets all of these requirements. See Decl. Maureen F.

Browne, ECF No. 43-3; Decl. Matthew Handley, ECF No. 43-4. As such, the Court grants Ms.

Borum’s motion to appoint her current legal team as class counsel.


                                        V. CONCLUSION

       For the foregoing reasons, Plaintiffs’ Motion for Class Certification (ECF No. 43) is

GRANTED IN PART AND DENIED IN PART, and Plaintiffs’ Motion for Appointment of

Class Counsel (ECF No. 43) is GRANTED. The following class is hereby CERTIFIED under

Rule 23(b)(2):




                                                    31
              All individuals who reside at Brookland Manor in a three-, four-, or
              five-bedroom unit that houses one or more minor child and his or
              her guardian, and are at risk of being displaced from a three-, four-,
              or five-bedroom unit at Brookland Manor as a direct result of the
              proposed redevelopment.

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.


Dated: February 12, 2018                                          RUDOLPH CONTRERAS
                                                                  United States District Judge




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