Case 1:16-cv-01723-RC Document 43-1 Filed 06/13/17 Page 1 of 31

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ADRIANN BORUM, et al.
Plaintiffs,
Case No.: 1:16-cv-01723-RC

v.
BRENTWOOD VILLAGE, LLC, et al.,
Defendants.

PLAINTIFFS’ MEMORANDUM AND POINTS OF AUTHORITIES
IN SUPPORT OF THEIR MOTION FOR CLASS CERTIFICATION AND
APPOINTMENT OF CLASS COUNSEL
Plaintiffs Adriann Borum and Lorretta Holloman respectfully submit this Memorandum
of Law in Support of their Motion for a Class Certification and Appointment of Class Counsel in
the instant action against Brentwood Associates, L.P. (“Brentwood”), Edgewood Management
Corporation (“Edgewood”), and Mid-City Financial Corporation (“Mid-City”) (collectively,
“Defendants”).

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TABLE OF CONTENTS
Page
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF COMMON FACTUAL ISSUES ..................................................................... 3
I.

The Brookland Manor Property and Impact of the Redevelopment Plan on
Families ............................................................................................................................... 3

II.

Defendants State Their Desire for a Community that Is Less Inclusive of Families .......... 5

III.

Adriann Borum and Lorretta Holloman Represent the Families Threatened by
Defendants’ Redevelopment Plan ....................................................................................... 6

ARGUMENT .................................................................................................................................. 7
I.

Legal Standard for Class Certification ................................................................................ 7

II.

The Proposed Class Action Satisfies the Requirements of Rule 23(a) ............................... 8

III.

IV.

A.

Rule 23(a)(1): Families at Brookland Manor Threatened by the
Redevelopment are So Numerous as to Render Joinder Impractical ...................... 8

B.

Rule 23(a)(2): The Proposed Class Members’ Claims Raise Common
Questions of Fact and Law ................................................................................... 11

C.

Rule 23(a)(3): Mses. Borum and Holloman’s Claims are Typical of the
Class Members ...................................................................................................... 14

D.

Rule 23(a)(4): Mses. Borum and Holloman and Plaintiffs’ Counsel Will
Fairly and Adequately Protect the Interests of the Class ...................................... 16

The Proposed Class Action Satisfies the Requirements for an Injunctive Class
Under Rule 23(b)(2) as well as a Hybrid Class ................................................................ 18
A.

Plaintiffs are Entitled to an Injunctive Class Under Rule 23(b)(2) ....................... 18

B.

Plaintiffs are Entitled to a Hybrid Class Under Rule 23(b)(2) and Rule
23(b)(3) ................................................................................................................. 20

Plaintiffs’ Counsel Should Be Designated as Class Counsel............................................ 24

CONCLUSION ............................................................................................................................. 25

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TABLE OF AUTHORITIES
Page(s)
Cases
In re American Medical Sys., Inc.,
75 F.3d 1069 (6th Cir. 1996) ................................................................................................................ 14
Amgen Inc. v. Conn. Ret. Plans & Trust Funds,
133 S. Ct. 1184 (2013) ......................................................................................................................... 22
In Re APA Assessment Fee Litig.,
2015 WL 5996354 (D.D.C. Oct. 14, 2015) ............................................................................................ 8
Baby Neal for & by Kanter v. Casey,
43 F.3d 48 (3d Cir. 1994) ..................................................................................................................... 16
Bame v. Dillard,
2008 WL 2168393 (D.D.C. May 22, 2008).......................................................................................... 17
Brown v. Kelly,
609 F.3d 467 (2d Cir. 2010) ................................................................................................................. 15
Coleman ex rel Bunn v. District of Columbia,
306 F.R.D. 68 (D.D.C. 2015) ..................................................................................................... 9, 11, 22
Bynum v. District of Columbia,
214 F.R.D. 27 (D.D.C. 2003) ............................................................................................................... 24
Comcast v. Behrend,
133 S. Ct. 1426 (2013) ......................................................................................................................... 22
Consol. Rail Corp. v. Town of Hyde Park,
47 F.3d 473 (2d Cir. 1995) ..................................................................................................................... 8
Daskalea v. Wash. Humane Soc.,
275 F.R.D. 346 (D.D.C. 2011) ............................................................................................................. 17
Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth.,
239 F.R.D. 9 (D.D.C. 2006) ................................................................................................................. 16
E. Tex. Motor Freight Sys., Inc. v. Rodriguez,
431 U.S. 395 (1977) ............................................................................................................................. 17
Eubanks v. Billington,
110 F.3d 87 (D.C. Cir. 1997)................................................................................................................ 20
Garcia v. Johanns,
444 F.3d 625 (D.C. Cir. 2006).............................................................................................................. 12

DC: 6435291-2

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Greenberg v. Colvin,
63 F. Supp. 3d 37, 45 (D.D.C. 2014).................................................................................................... 21
Harris v. Koenig,
271 F.R.D. 383 (D.D.C. 2010) ............................................................................................................. 18
Hassine v. Jeffes,
846 F.2d 169 (3rd Cir. 1988) ................................................................................................................ 17
Houser v. Pritzker,
28 F. Supp. 3d 222, 241 (S.D.N.Y. 2014) ........................................................................................ 9, 14
Huynh v. Harasz,
2015 WL 7015567 (N.D. Cal. Nov. 12, 2015) ..................................................................................... 19
In re Johnson,
760 F.3d 66 (D.C. Cir. 2014)................................................................................................................ 23
Kifafi v. Hilton Hotel Ret. Plan,
228 F.R.D. 382 (D.D.C. 2005) ............................................................................................................... 8
Love v. Johanns,
439 F.3d 723 (D.C. Cir. 2006)................................................................................................................ 7
Maziarz v. Hous. Auth. of Vernon,
281 F.R.D. 71 (D. Conn. 2012) ...................................................................................................... 12, 22
McReynolds v. Sodexho Marriott Servs., Inc.,
208 F.R.D. 428 (D.D.C. 2002) ....................................................................................................... 11, 13
Memphis Cmty. Sch. Dist. v. Stachura,
477 U.S. 299 (1986) ............................................................................................................................. 23
Miller v. Spring Valley Props.,
202 F.R.D. 244 (C.D. Ill. 2001)............................................................................................................ 19
Moore v. Napolitano,
926 F. Supp. 2d 8 (D.D.C. 2013).............................................................................................. 11, 12, 14
In re Nassau Cnty. Strip Search Cases,
461 F.3d 219 (2d Cir. 2006) ................................................................................................................. 23
Nicholson v. Williams,
205 F.R.D. 92 (E.D.N.Y. 2001).............................................................................................................. 9
Parker v. Bank of Am., N.A.,
99 F. Supp. 3d 69, 78 (D.D.C. 2015).................................................................................................... 11
Pigford v. Glickman,
182 F.R.D. 341 (D.D.C. 1998) ............................................................................................................... 9

ii

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In re Rail Freight Surcharge Antitrust Litig.-MDL No. 1869,
725 F.3d 244 (D.C. Cir. 2013).............................................................................................................. 22
Ramirez v. Greenpoint Mortg. Funding, Inc.,
268 F.R.D. 627 (N.D. Cal. 2010) ......................................................................................................... 23
Richards v. Delta Air Lines, Inc.,
453 F.3d 525 (D.C. Cir. 2006).......................................................................................................... 7, 18
Robidoux v. Celani,
987 F.2d 931 (2d Cir. 1993) ................................................................................................................... 9
Segar v. Smith,
738 F.2d 1249 (D.C. Cir. 1984)............................................................................................................ 12
Stockwell v. City & Cty. of S.F.,
749 F.3d 1107 (9th Cir. 2014) .............................................................................................................. 12
Taylor v. D.C. Water & Sewer Auth.,
241 F.R.D. 33 (D.D.C. 2007) ......................................................................................................... 13, 23
Thomas v. Powell,
247 F.3d 260 (D.C. Cir. 2001).............................................................................................................. 20
Tyson Foods, Inc. v. Bouaphakeo,
136 S. Ct. 1036 (2016) ......................................................................................................................... 21
United States v. Space Hunters, Inc.,
2004 WL 2674608 (S.D.N.Y. Nov. 23, 2004)...................................................................................... 20
In re Veneman,
309 F.3d 789 (D.C. Cir. 2002)........................................................................................................ 18, 19
In re Vitamins Antitrust Litig.,
209 F.R.D. 251 (D.D.C. 2002) ............................................................................................................. 14
Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338 (2011) ............................................................................................................... 7, 8, 12, 15
Statutes
42 U.S.C. § 3604(a) .................................................................................................................................... 13
Other Authorities
Fed. R. Civ. P. Rule 23 ........................................................................................................................ passim

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INTRODUCTION
This case presents a classic civil rights action appropriate for class certification.
Defendants are undertaking a plan to redevelop the apartments at Brookland Manor. That
singular plan has a discriminatory impact against families living in Brookland Manor and
threatens to leave the majority of those families without a home.
Plaintiffs Adriann Borum and Lorretta Holloman are residents of Brookland Manor
whose family homes are threatened by Defendants’ plan to redevelop the property. Mses. Borum
and Holloman are not alone. There are hundreds of families living at Brookland Manor. The
planned reduction in larger family-sized units with 3-, 4-, and 5-bedroom units from 209 homes
to a mere 64 homes has a disparate and discriminatory impact on these families, in violation of
the Fair Housing Act (the “FHA”) and the District of Columbia Human Rights Act (the
“DCHRA”). Mses. Borum and Holloman have brought this case on behalf of themselves and
their families as well as other, similarly situated families at Brookland Manor who are impacted
by Defendants’ redevelopment plan, and move for certification of a class action under Rule 23.
As detailed herein, Plaintiffs meet all the required elements for the certification of an injunctive
class under Rule 23(b)(2) and a hybrid class under Rules 23(b)(2) and (b)(3).
The proposed class satisfies all the requirements of Rule 23(a). The class is more than
sufficiently numerous and easily ascertainable, as Defendants’ most recent records demonstrate
that 118 families live at Brookland Manor in 3-, 4-, and 5-bedroom units. These families raise
common questions of law and fact: whether Defendants’ redevelopment plan has an irreparable
and discriminatory impact on families, whether Defendants’ redevelopment plan threatens to
leave the majority of families in Brookland Manor without a home, and whether Defendants can
demonstrate that the proposed redevelopment plan is necessary to serve a valid, nondiscriminatory interest. Mses. Borum and Holloman’s legal claims are typical of the class, as
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these two families face the same injury as the other families, and they are committed to fairly and
vigorously representing the interests of the class.
Class certification is appropriate under Rule 23(b)(2) because Plaintiffs seek relief that is
applicable to the entire proposed class: an injunction putting on hold the discriminatory
redevelopment plan. Specifically, Plaintiffs seek declaratory and injunctive relief stating that
Defendants’ redevelopment plan violates the FHA and the DCHRA and enjoining Defendants
from proceeding with the current plan. Plaintiffs are committed to ensuring that class members
are not disparately impacted on the basis of familial status, and this case falls in line with
established precedent holding that class certification is particularly appropriate in civil rights
cases alleging discrimination against a group.
Class certification is similarly appropriate under Rule 23(b)(3) because the damages
sought by Plaintiffs turn on common factual and legal questions which predominate over
individualized inquiries and a class certification serves the goal of judicial efficiency. If
Plaintiffs are not able to secure injunctive relief in time, Plaintiffs and putative class members
will be displaced from their homes and forced to incur significant expenses to identify, secure,
and move to homes elsewhere in D.C. or out of the District entirely. Although the precise
damages may vary among class members, the existence and nature of these damages are subject
to common proof, and resolving these common issues in a class action is superior to having
residents bring separate actions before the Court.
Defendants’ redevelopment plan will have an undeniably significant impact on the
families living at Brookland Manor. Not only would adjudication of individual claims be
impractical for the court, but it is also impractical for the families, many of whom rely upon
public assistance, to engage legal representation to pursue individual claims. Class certification

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is the only viable path for the civil rights of these families to be adjudicated. For the reasons
outlined above and detailed below, the Court should grant Plaintiffs’ motion for class
certification.
STATEMENT OF COMMON FACTUAL ISSUES
I.

The Brookland Manor Property and Impact of the Redevelopment Plan on Families
Brookland Manor is an apartment complex in Northeast, Washington, D.C. Brookland

Manor currently includes 535 rental units that range in size from 1- to 5-bedroom apartments.
The current configuration of the Brookland Manor property is broken down into the following
bedroom size units:
Unit Type
1BR/1BA
2BR/1BA
3BR/1BA
4BR/2BA
5BR/2BA

Number of Units
280
46
75
113
21

See Ex. 12 at pp. 1–2. Brookland Manor is home to hundreds of families, in part because it is
among the dwindling number of rental communities with apartments with more than two
bedrooms. As of January 2017, 118 families with minor children resided in 3-, 4-, and 5bedroom apartments at Brookland Manor. See Ex. 1 at ¶ 9 [hereinafter Beveridge Decl.]. 1 At
the start of the redevelopment process in 2014, that number was as high as 158 families. Id.
Most of these families, like most residents at Brookland Manor, rely upon rental housing
assistance programs of some type.

1

All references to “Ex.” are to the exhibits attached to the declaration of Amber M. Charles dated June
13, 2017.
3

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This case centers on Defendants’ plans to redevelop the Brookland Manor property into a
significantly higher-density rental community that provides many hundreds of studio, 1-, and 2bedroom apartments but eliminates or reduces the 3-, 4-, and 5-bedroom apartments for families.
Defendants have made multiple submissions to the D.C. Zoning Commission to seek approval of
the plan and are currently awaiting a written order approving their second-stage Planned Unit
Development (“PUD”) application to move forward. See Exs. 9–10. Defendants’
redevelopment plan calls for the complete demolition of all existing homes, and in anticipation,
Defendants have already begun submitting applications for permits to raze the buildings. See Ex.
11 at p. 3 (Defendants’ Responses to Plaintiffs’ Requests for Admission) (“Defendants admit that
Brentwood has applied for raze permits in connection with a portion of the redevelopment of
Brookland Manor.”). Defendants do not dispute that they plan to completely remove all 4- and
5-bedroom units and plan to build only 64 3-bedroom units. See id. (admitting that “[t]he
redeveloped property configuration will not include any apartments with four- or five-bedroom
units”); see also Ex. 4 at pp. 5–6. Once completed, this plan will reduce the overall number of
3-, 4-, and 5-bedroom apartments from 209 to 64 units. Consequently, the 118 families currently
living in 209 units will be forced to compete for the then-available 64 units.
Unsurprisingly, families live in 3-, 4-, and 5-bedroom units at a greatly disproportionate
rate as compared to non-families. As of June 2015, when Defendants submitted their first-stage
PUD application to the D.C. Zoning Commission, families made up 52% of the occupied units at
Brookland Manor (253 families out of 486 occupied units). 2 Dkt. 4-2 at ¶ 22 (Decl. of Dr.

2

During class discovery, Defendants provided resident data from late 2016 and early 2017;
however, that data did not include information on households residing in 1- or 2-bedroom units.
Consequently, Plaintiffs present this data from 2015. While Plaintiffs expect that more recent
data will bear out this same strong showing of disparate impact, Plaintiffs note that they need not

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Beveridge in Support of Plaintiffs’ Motion for a Preliminary Injunction). However, only 34.3%
of 1- and 2-bedroom units were occupied by families. In contrast, 81.4% of 3-, 4-, and 5bedroom units were occupied by families. Given the disproportionate presence of families in
these larger units, 58.89% of all families will be adversely affected by Defendants’ elimination
or reduction in 3-, 4-, and 5-bedroom apartments, as compared to 14.59% of non-families. See
id. at ¶ 24. There is no doubt that targeting 3-, 4-, and 5-bedroom units for removal impacts
current families more than it does non-families at Brookland Manor.
II.

Defendants State Their Desire for a Community that Is Less Inclusive of Families
Defendants have stated publicly—including in their Zoning Commission submission and

at public hearings, and in correspondence to Brookland Manor tenants—that Defendants’
planned redevelopment dramatically reduces 3-, 4-, and 5-bedroom apartments because
Defendants do not want larger families to reside at the redeveloped property.
•

On April 10, 2015, Mid-City stated to the Zoning Commission that “[c]ommunities and
organizations throughout the country are in agreement that housing very large families in
apartment complexes is significantly impactful upon the quality of life of households as
well as their surrounding neighbors. Therefore, the Applicant does not propose to
construct four or five bedroom units in the project.” Ex. 4 at p. 6 (emphasis added).

•

In a November 2014 letter to the Brookland Manor/Brentwood Village Residents
Association, Mid-City stated that “practical experience has demonstrated that [four or
five bedroom apartments are] not an ideal housing type for larger families and there are
adverse impacts on the remainder of the community.” Ex. 5 at 00257 (emphasis added).

prove disparate impact at the class-certification stage of the litigation. Plaintiffs will seek
fulsome information regarding disparate impact during general discovery.
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•

In a January 20, 2015 letter to all Brookland Manor residents, Mid-City stated that “the
new community will not include new 4 and 5 [bedroom] units as these large units are not
consistent with the creation of a vibrant new community.” Ex. 6 at 00258 (emphasis
added).

•

In October 2015, Edgewood sent letters to large families who use Vouchers to pay their
rent, indicating that they had to move out of their homes. These letters suggested that the
transfer was required by the D.C. Housing Authority, even though the decision to transfer
to another unit is a voluntary one that only the tenant or family is entitled to make. See
Exs. 7–8.
Defendants’ statements and actions indicate that it is their intent to build a “vibrant”

community by removing families, particularly families with multiple children.
III.

Adriann Borum and Lorretta Holloman Represent the Families Threatened by
Defendants’ Redevelopment Plan
The named plaintiffs in this proposed class action are Lorretta Holloman and Adriann

Borum. Mses. Borum and Holloman live with their respective families in 4-bedroom
apartments. See Ex. 2 at ¶ 2 [hereinafter Borum Decl.]; Ex. 3 at ¶ 2 [hereinafter Holloman
Decl.]. Ms. Holloman lives with her 63-year-old mother Lenora, her 34-year-old brother Derek,
and her three children, Dionna, Quentin, and Autumn, who are ages 18, 12, and 4, respectively.
See Borum Decl. at ¶ 2. Ms. Borum lives with her children Donta Borum, Trayvon Borum,
Demonte Borum, Gary Freeman Jr., and Taylor Borum, ages 22, 21, 19, 14, and 8, respectively.
See Holloman Decl. at ¶ 2. Ms. Holloman has lived on the property for over five years while
Ms. Borum has resided there for over twenty-five years. Both Mses. Holloman and Borum are
tenants in good standing, and plan to remain at the property for the foreseeable future. See
Holloman Decl. at ¶¶ 5, 11; Borum Decl. at ¶¶ 5, 11. Both women are deeply concerned that
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their families will be left without an appropriate place to live with their families if the Brookland
Manor property is redeveloped as currently proposed. See Borum Decl. at ¶¶ 8–10; Holloman
Decl. at ¶¶ 7–10.
Mses. Borum and Holloman bring this action on behalf of the following class:
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.
Dkt. 2 at ¶ 122.
ARGUMENT
I.

Legal Standard for Class Certification
A class is certified when class plaintiffs satisfy the requirements of Rule 23(a) and

demonstrate the class constitutes one of the types of classes under Rule 23(b). See Wal-Mart
Stores, Inc. v. Dukes, 564 U.S. 338, 349–51 (2011); Richards v. Delta Air Lines, Inc., 453 F.3d
525, 530, (D.C. Cir. 2006); Love v. Johanns, 439 F.3d 723, 727 (D.C. Cir. 2006). Rule 23(a)
provides that plaintiffs may sue on behalf of their class if: “(1) the class is so numerous that
joinder 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). Once these elements are satisfied, plaintiffs must also demonstrate the class
qualifies under Rule 23(b). Here, Plaintiffs seek to certify a class for injunctive relief under Rule
23(b)(2) and a “hybrid class” under both Rules 23(b)(2) and 23(b)(3).
Although Plaintiffs bear the burden to demonstrate that the elements of Rule 23 have
been satisfied, Dukes, 564 U.S. at 349–51, class certification is not an inquiry into the merits.

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Indeed, “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.” DL v. District of Columbia, 713 F.3d 120, 125–26 (D.C. Cir. 2013) (quoting Amgen
Inc. v. Conn. Ret. Plans & Trust Funds, 133 S. Ct. 1184, 1194–95 (2013)). In determining
whether Rule 23’s prerequisites have been met, “the legal standard is whether the evidence
presented by plaintiffs establishes a reasonable basis for crediting plaintiffs’ assertions.” Kifafi
v. Hilton Hotel Ret. Plan, 228 F.R.D. 382, 385 (D.D.C. 2005) (internal alterations, quotation
marks, and citation omitted).
As shown below, the proposed class satisfies the requirements of Rule 23(a) and Rule
23(b)(2). The proposed class also should be certified as a hybrid class under Rules 23(b)(2) and
23(b)(3).
II.

The Proposed Class Action Satisfies the Requirements of Rule 23(a)
A.

Rule 23(a)(1): Families at Brookland Manor Threatened by the
Redevelopment are So Numerous as to Render Joinder Impractical

To establish numerosity, a proposed class must be “so numerous that joinder of all
members is impracticable.” Fed. R. Civ. P. 23(a)(1). Courts commonly hold that classes of forty
or more members presumptively satisfy this requirement. See In Re APA Assessment Fee Litig.,
2015 WL 5996354, at *3, (D.D.C. Oct. 14, 2015) (citing Coleman ex rel Bunn v. District of
Columbia, 306 F.R.D. 68, 76 (D.D.C. 2015)); Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d
473, 483 (2d Cir. 1995). Moreover, courts routinely certify classes with fewer than forty
members where there are other factors that suggest joinder may be impracticable. See Coleman
ex rel Bunn, 306 F.R.D. at 76.

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Numerosity does not demand that the Court calculate “an exact number of putative class
members.” Pigford v. Glickman, 182 F.R.D. 341, 347 (D.D.C. 1998). An “approximation of the
size of the class” is sufficient. Coleman ex rel Bunn, 306 F.R.D. at 76. And in approximating
the size of the class, the Court may rely on “reasonable inferences” drawn from available
evidence. Id. (quoting McCuin v. Sec’y of Health & Hum. Servs., 817 F.2d 161, 167 (1st Cir.
1987)); see also Houser v. Pritzker, 28 F. Supp. 3d 222, 241 (S.D.N.Y. 2014). 3
It should be undisputed that there are well more than forty putative class members that
fall within Plaintiffs’ proposed definition, which includes families living in 3-, 4-, and 5bedroom apartments in Brookland Manor since the start of the redevelopment process in October
2014. For example, Defendants’ own records show that 158 families with minor children
(totaling 734 individuals) resided in 3-, 4-, or 5-bedroom apartments at Brookland Manor in 2014
when the redevelopment was publicly announced. Beveridge Decl. at ¶ 9. Relying on
Defendants’ records disclosed through discovery, Dr. Beveridge similarly concluded that there
were 150 families with minor children (totaling 697 individuals) residing in 3-, 4-, or 5-bedroom
apartments at Brookland Manor in 2015, 119 families (totaling 579 individuals) residing in such
apartments in 2016, and 118 families (totaling 543 individuals) residing in such apartments in

3

For classes seeking injunctive relief under Fed. R. Civ. P. 23(b)(2), courts commonly relax this
numerosity requirement even further. See, e.g., Nicholson v. Williams, 205 F.R.D. 92, 98
(E.D.N.Y. 2001) (collecting cases); Robidoux v. Celani, 987 F.2d 931, 935–36 (2d Cir. 1993);
see also Fed. R. Civ. P. 23(b)(2) advisory committee notes (1966 amendment) (stating that
certification is appropriate “even if [the wrongful act] has taken effect or is threatened only as to
one or a few members of the class, provided it is based on grounds which have general
application to the class”). The court in Bruce v. Christian, for example, found that a class of
sixteen could be certified where it was “clear that the conduct complained of affects or will affect
numerous individuals” and “the fluid composition of the public housing population [was]
particularly well suited for status as a class because while the identity of the individuals involved
may change, the nature of the harm and basic parameters of the group affected remain constant.”
113 F.R.D. 554, 557 (S.D.N.Y. 1986).
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2017. Id. Defendants redevelopment plan will reduce the number of 3-, 4-, and 5-bedroom
apartments to only 64 units total, all with no more than 3-bedrooms. Through this reduction, the
redevelopment plan places at risk the homes of all of these families. Most families will be
unable to fit in these new apartments, and even those who can would have to compete for a fartoo-limited number of units. As a result, all of these families (including the minor children) are
part of Plaintiffs’ proposed class. The class is therefore so numerous that joinder would be
impracticable.
Defendants have argued that the definition of “family” under the FHA is restricted to
minor children and their designated legal guardian(s), Dkt. 18 at p. 16, and that therefore only a
relatively small number of nuclear families require 4- or 5-bedroom apartments. These
arguments are inapposite to the numerosity analysis. As an initial matter, the record refutes
Defendants’ analyses on how many families qualify for 4- and 5-bedroom apartments. Even if
the term “family” is restricted to minor children and their legal guardians, any reasonable
interpretation of occupancy regulations would lead to the conclusion that 80+ 3-, 4-, and 5bedroom apartments are required to accommodate the current families. See Beveridge Decl. at ¶
13. 4 Furthermore, whatever the merits of Defendants’ arguments, those arguments are premature
at the class certification stage because they address the ultimate merits of the case, not the
number of class members. Courts routinely include class members in the numerosity analysis
where the defendants contend they should be excluded “not because those individuals do not

4

This number is even higher when earlier years, for which more complete data is available, are
considered. Dr. Beveridge concluded, based on analysis of Defendants’ tenant records, that there
are 131 families who lived at Brookland Manor in 2015 who required a 3-, 4-, or 5-bedroom
apartment under the appropriate occupancy standards, even excluding adult family members
other than heads of household. See Beveridge Decl. at ¶ 10. Thus, even assuming arguendo that
Defendants’ merits arguments are relevant at this stage, the class would still be so numerous that
joinder would be impracticable.
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meet the class definition” but because the defendants believe their claims “will ultimately fail on
the merits.” See Coleman ex rel Bunn, 306 F.R.D. at 77; see also Moore v. Napolitano, 926 F.
Supp. 2d 8, 28 (D.D.C. 2013) (finding a class of 120 sufficiently numerous despite Defendants’
arguments that “required exclusions” would limit the class to 27 members); see also McReynolds
v. Sodexho Marriott Servs., Inc., 208 F.R.D. 428, 441–45 (D.D.C. 2002) (dismissing as
“unavailing” defendants’ multitude of merits-focused arguments raised at the class-certification
stage, including arguments attacking plaintiffs’ expert’s analysis).
The key question, for purposes of the numerosity analysis, is how many families with
minor children there are who have resided in 3-, 4-, or 5-bedroom apartments at Brookland
Manor since October 2014 who have been displaced or are threatened with being displaced in
connection with the redevelopment plan. When properly focused on the Rule 23(a) inquiry,
Plaintiffs easily satisfy the numerosity requirement of Fed. R. Civ. P. Rule 23(a)(1). 5
B.

Rule 23(a)(2): The Proposed Class Members’ Claims Raise Common
Questions of Fact and Law

For a class to be certified, Rule 23(a) requires a finding that there are “questions of law or
fact common to the class.” Fed. R. Civ. P. 23(a)(2). “Commonality” does not, however, require
that each class member’s claim be identical. Rather, the claims “must depend upon a common
contention . . . that is capable of classwide resolution — which means that 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.” Dukes, 564 U.S. at 350. Furthermore, the existence of some individualized questions

5

In addition to the four stated requirements of Rule 23(a), some courts have required that the
class be definite and ascertainable. See, e.g., Parker v. Bank of Am., N.A., 99 F. Supp. 3d 69, 78
(D.D.C. 2015). Here, the class definition is limited to families (households with minor children)
living in specific apartment configurations at Brookland Manor over a set period of time. The
resident records produced by Defendants and relied upon in Dr. Beveridge’s report demonstrate
that this class is readily ascertainable. See generally Beveridge Decl.
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does not defeat commonality; “even a single common question will do.” Id. at 359 (alterations
omitted).
In the context of claims based on discriminatory impact, commonality requires a showing
that “permit[s] the court to infer that members of the class experienced discrimination as a result
of the disparate effect of a facially neutral policy.” Garcia v. Johanns, 444 F.3d 625, 632 (D.C.
Cir. 2006). This standard is easily met where plaintiffs allege a single discriminatory “policy or
practice that affects all class members” equally. DL, 713 F.3d at 126; see also Stockwell v. City
& Cty. of S.F., 749 F.3d 1107, 1114 (9th Cir. 2014) (finding commonality satisfied where
plaintiffs identified a “single, well-enunciated, uniform policy that . . . generated all the disparate
impact of which they complain”); Maziarz v. Hous. Auth. of Vernon, 281 F.R.D. 71, 84 (D.
Conn. 2012) (“A class action is particularly appropriate where the plaintiffs are allegedly
aggrieved by a single policy of the defendants”).
Indeed, in Wal-Mart Stores, Inc. v. Dukes, the Supreme Court gave as an example of a
prototypical “common contention” a plaintiff’s “assertion of [a] discriminatory bias” by a
defendant. 564 U.S. at 351; cf. Segar v. Smith, 738 F.2d 1249, 1267 (D.C. Cir. 1984) (describing
a disparate impact claim as “an allegation that an observed disparity is the systemic result of a
specific . . . practice”). Courts in this district commonly recognize that disparate impact claims
are driven by common question and resolved through common evidence, including statistical
evidence of the disparate and discriminatory impact. See, e.g., Moore, 926 F. Supp. 2d at 29–31
(D.D.C. 2013) (finding commonality satisfied where plaintiffs’ buttressed their disparate impact
claim with statistical evidence and personal statements); McReynolds, 208 F.R.D. at 441 (same);
Taylor v. D.C. Water & Sewer Auth., 241 F.R.D. 33, 38–44 (D.D.C. 2007) (same).

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The primary questions of law and fact in this case are undisputedly common to the class.
The core of the case is the FHA’s prohibition to “otherwise make unavailable or deny[] a
dwelling” based on familial status. 42 U.S.C. § 3604(a). Common questions of law and fact
drive each stage of three-step burden-shifting framework for disparate impact claims:
•

Stage 1: Does Defendants’ redevelopment plan have a disparate impact on the
families at Brookland Manor? Defendants have implemented a single policy to
eliminate all 4- and 5-bedroom apartments and significantly reduce 3-bedroom
apartments. Because the redevelopment plan makes unavailable housing suitable
for and disproportionately occupied by families, Plaintiffs allege that Defendants’
redevelopment plan has a disparate impact on families. Nearly by definition, the
prima facie disparate impact is proven through common evidence: a statistically
significant deviation between the effect on families compared to non-families.

•

Stage 2: Is Defendants’ redevelopment plan necessary to serve a valid, nondiscriminatory interest? Any defense that Defendants’ might offer at the secondstage of the Court’s disparate impact analysis would also be common to the class.
Defendants have made numerous public statements revealing that their
redevelopment plan removes large units specifically because of the belief that
inclusive housing for families is antithetical to a “vibrant” community. Exs. 4-6.
But even presuming that Defendants could establish a valid, non-discriminatory
interest served by their redevelopment plan’s exclusion of large-size apartments,
this reason would apply equally to each class member.

•

Stage 3: Even if there is a valid interest justifying the discriminatory
redevelopment plan, is there a less discriminatory, alternative method for

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Defendants to achieve their goals? Again, the availability of alternatives to the
current redevelopment plan is a question common to the entire class.
At this stage of the litigation the question before the Court is not whether Plaintiffs will
eventually be successful on the merits of their disparate impact claim. See, e.g., Houser, 23 F.
Supp. 3d at 242 (holding whether or not a statistically significant disparate impact existed in fact,
the question of such an impact was common to the class and warranted class certification).
Rather, what is at issue for purposes of Rule 23(a)’s commonality inquiry is whether the claim of
class members will rise and fall together. A statistical showing of disparate impact is just such a
claim. See, e.g., Moore, 926 F. Supp. 2d at 29–31. Moreover, Plaintiffs have gone beyond Dr.
Beveridge’s statistical impact analysis and offered evidence by way of Defendants’ public
statements. These statements reveal Defendants’ objective of removing families from the
redevelopment. See supra pp. 8–9. 6
C.

Rule 23(a)(3): Mses. Borum and Holloman’s Claims are Typical of the Class
Members

Typicality requires that the representative plaintiffs have “suffered injuries in the same
general fashion as absent class members.” In re Vitamins Antitrust Litig., 209 F.R.D. 251, 260
(D.D.C. 2002); see also In re American Medical Sys., Inc., 75 F.3d 1069, 1082 (6th Cir. 1996)
(“[A] plaintiff’s claim is typical if it arises from the same event or practice or course of conduct
that gives rise to the claims of other class members, and if his or her claims are based on the
same legal theory.”). The Supreme Court has recognized that “[t]he commonality and typicality
requirements . . . tend to merge.” Dukes, 564 U.S. at 349 n.5. Typicality is established “when

6

In addition to impacting the burden-shifting analysis under the disparate impact claims, these
same public statements are the genesis of the discriminatory statement claims which again raise
common questions of fact and law.
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each class member’s claim arises from the same course of events, and each class member makes
similar legal arguments to prove the defendant’s liability.” Brown v. Kelly, 609 F.3d 467, 475
(2d Cir. 2010).
Here, Plaintiffs assert rights under both the FHA and DCHRA based on the systematic
actions of the Defendants. Plaintiffs challenge the policy or practice of Defendants through
which Defendants have chosen to purposefully eliminate four- and five-bedroom units in the
redevelopment and reduce the three-bedroom units as part of the redevelopment of Brookland
Manor, as well as to justify the instant policy or practice through a series of discriminatory
statements made against families. Just as with every other member of the proposed class,
Plaintiffs stand to lose their housing at Brookland Manor due to the actions of the Defendants.
Both the harm Plaintiffs will suffer and the remedies available to them are typical of the
proposed class.
Ms. Holloman lives in a four-bedroom apartment unit with five other family members,
including minor children. Ms. Borum lives in a four-bedroom apartment unit with five other
family members, including minor children. Both individual named Plaintiffs, as well as other
members of the proposed class, live in apartment units that will not be replaced with comparably
sized units in the redevelopment of Brookland Manor. All members of the class and the named
representatives require family-sized housing, which will not be available to them in the current
redevelopment plan for Brookland Manor. Defendants’ systematic actions towards families
apply equally to the named Plaintiffs and to all the other members of the class, and the injuries
suffered by the named Plaintiffs stem from the same policies, procedures, and practices that
affect all members of the class.

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Even though the exact configurations and circumstances of every family household at
Brookland Manor are not identical, these factual variations do not impact the overarching
commonality of the legal and remedial theories supporting this action, which are most important
when considering typicality. See Disability Rights Council of Greater Wash. v. Wash. Metro.
Area Transit Auth., 239 F.R.D. 9, 28 (D.D.C. 2006) (“WMATA”) (“Even relatively pronounced
factual differences will generally not preclude a finding of typicality where there is a strong
similarity of legal theories”); Baby Neal for & by Kanter v. Casey, 43 F.3d 48, 58 (3d Cir. 1994).
Furthermore, slight variations in the household configuration or rental history of the
named Plaintiffs and class members do not bear on the typicality of the Plaintiffs’ claims.
Diversity amongst Plaintiffs “says nothing, in and of itself, about whether the named plaintiffs'
claims are typical.” WMATA, 239 F.R.D. at 28. Rather, the “Plaintiffs’ challenge of the same
unlawful conduct which affects both the named Plaintiffs and the putative class … satisfy the
typicality requirement irrespective of the varying fact patterns underlying the individual claims.”
Baby Neal for & by Kanter, 43 F.3d at 58. The named Plaintiffs challenge the behavior of the
Defendants, the redevelopment of Brookland Manor without family-sized housing, and
statements regarding the availability of the community to families, which would affect both
individual Plaintiffs in addition to the putative class; therefore, the typicality requirement is
satisfied.
D.

Rule 23(a)(4): Mses. Borum and Holloman and Plaintiffs’ Counsel Will
Fairly and Adequately Protect the Interests of the Class

Rule 23(a)(4) mandates that the interests of the named plaintiffs coincide with the
interests of the class. Fed. R. Civ. P. 23(a)(4). To satisfy this rule, Plaintiffs must show that:
“(1) there is no conflict of interest between the legal interests of the named plaintiffs and those of
the proposed class; and (2) counsel for the class is competent to represent the class.” Bame v.
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Dillard, 2008 WL 2168393, at *7 (D.D.C. May 22, 2008) (citing Twelve John Does v. District of
Columbia, 117 F.3d 571, 575 (D.C. Cir. 1997)). Here, both requirements are met.
“[A] class representative must be part of the class and ‘possess the same interest and
suffer the same injury’ as class members.” E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431
U.S. 395, 403 (1977) (quotation omitted). The named plaintiff must also demonstrate sufficient
willingness, interest and ability to pursue claims on behalf of the class. See Hassine v. Jeffes,
846 F.2d 169, 179 (3rd Cir. 1988); Daskalea v. Wash. Humane Soc., 275 F.R.D. 346, 377
(D.D.C. 2011).
Plaintiffs have satisfied the requirements of Rule 23(a)(4). Mses. Borum and Holloman
will fairly and adequately protect the interests of the proposed Class. They know of no conflict
with any other member of the Class. Borum Decl. at ¶ 13; Holloman Decl. at ¶ 13. They
understand and are committed to fulfilling their obligations as proposed class representatives,
have already taken steps to fulfill them, including the provision of evidence relevant to the
claims brought on behalf of the class, the submission of declarations, and consultation during
court-ordered mediation. Moreover, the class representatives are prepared to continue to fulfill
their duties as proposed class representatives, including making themselves available for
depositions and for any necessary appearances before the court. The named Plaintiffs have
already participated in several steps of the litigation in an effort to vigorously prosecute the
interests of the entire Class. Finally, Plaintiffs are unaware of any unique defenses that
Defendant can raise against the named Plaintiffs that would interfere with them serving as class
representatives.
Furthermore, Plaintiffs’ counsel are experienced in federal court class-action litigation,
including in the area of fair housing law. Plaintiffs’ counsel from the Washington Lawyers’

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Committee for Civil Rights and Urban Affairs (“WLC”) are highly experienced in the area of
housing discrimination and class action civil rights litigation. Plaintiffs’ counsel from Covington
& Burling LLP—a leading Washington D.C. law firm—also have significant experience with
complex civil litigation, including fair housing and public housing cases. Further, Lead Counsel
and other Class Counsel have devoted substantial time and energy to litigating this action
already, illustrating a commitment to the Plaintiffs and class members. See infra pp. 27–28.
III.

The Proposed Class Action Satisfies the Requirements for an Injunctive Class
Under Rule 23(b)(2) as well as a Hybrid Class
For the reasons set forth below, Plaintiffs are entitled to certification of a class under Rule

23(b)(2) and a hybrid class under both (b)(2) and (b)(3).
A.

Plaintiffs are Entitled to an Injunctive Class Under Rule 23(b)(2)

Plaintiffs are entitled to certification of an injunctive relief class under Rule 23(b)(2)
because Defendants have “acted or refused to act on grounds that apply generally to the class.”
Fed. R. Civ. P. 23(b)(2); see also Richards, 453 F.3d at 530; In re Veneman, 309 F.3d 789, 792
(D.C. Cir. 2002); Harris v. Koenig, 271 F.R.D. 383, 395 (D.D.C. 2010). As recognized by the
Advisory Committee on Rule 23, courts frequently employ Rule 23(b)(2) where plaintiffs seek
redress of widespread civil rights violations. See Fed. R. Civ. P. 23(b)(2), advisory committee
notes (1966 amendment) (collecting cases).
In this light, the D.C. Circuit has noted that Rule 23(b)(2) “certification is particularly
well-suited for civil rights actions where a party is charged with discriminating unlawfully
against a class.” In re Veneman, 309 F.3d at 792 (citation and internal quotation marks omitted).
Courts often certify classes pursuant to Rule 23(b)(2) for individuals to vindicate their rights
under the FHA. See, e.g., Huynh v. Harasz, 2015 WL 7015567, at *10 (N.D. Cal. Nov. 12, 2015)
(finding Rule 23(b)(2) satisfied where “Plaintiffs allege that Defendants developed and

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implemented a uniform practice of denying reasonable accommodation requests by voucher
holders”); Miller v. Spring Valley Props., 202 F.R.D. 244, 246–47 (C.D. Ill. 2001) (finding Rule
23(b)(2) satisfied where plaintiffs alleged that property owner engaged in practice of
misrepresenting to potential African-American renters that no properties were available for
lease). Certification under Rule 23(b)(2) is similarly appropriate here.
In their redevelopment plan for Brookland Manor, Defendants have adopted a policy that
will have a discriminatory disparate impact on Plaintiffs and other families at Brookland Manor.
As noted above, a disparate impact claim is, nearly by definition, proven through common
evidence such as a statistically significant deviation between the effect of Defendants’ policy on
families compared to non-families. That disparate impact on families can and would be
remedied by declaratory relief stating that Defendants’ redevelopment plan violates the FHA and
the DCHRA and injunctive relief precluding Defendants from proceeding with the current plan.
Without such declaratory and injunctive relief to prevent the elimination of large apartment units
in the redevelopment, many Brookland Manor families will be displaced and lose their longstanding support structures, such as access to jobs, assistive or social-service related programs,
and local schools. All of these injuries can be remedied through declaratory and injunctive
relief.
Accompanying the redevelopment plan have been repeated public statements by
Defendants that discriminate against families. These statements harm the entire proposed class
of families, and the appropriate remedy is injunctive relief precluding Defendants from making
further statements that discriminate against families and other relief to remediate prior
statements. See United States v. Space Hunters, Inc., 2004 WL 2674608, at *8 (S.D.N.Y. Nov.
23, 2004), aff'd, 429 F.3d 416 (2d Cir. 2005) (“The Court must craft injunctive relief with a view

19

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toward the [FHA]’s goals of preventing future violations and removing lingering effects of past
discrimination.”). Consequently, Plaintiffs are entitled to certification of a Rule 23(b)(2) class.
B.

Plaintiffs are Entitled to a Hybrid Class Under Rule 23(b)(2) and Rule
23(b)(3)

In addition to the certification of an injunctive relief class under Rule 23(b)(2), the Court
should certify a “hybrid” class under Rule 23(b)(2) and (b)(3). The D.C. Circuit recognizes the
appropriateness of “hybrid” classes in instances where plaintiffs seek both injunctive relief to
arrest a discriminatory practice and monetary damages to make whole harm suffered due to that
practice. See, e.g., Eubanks v. Billington, 110 F.3d 87, 96 (D.C. Cir. 1997). That is precisely the
case because the redevelopment process is on-going, and in the event Plaintiffs are unable to
secure injunctive relief or the injunctive relief comes after some class members have already
been displaced, class members will suffer damages in the form of relocation costs associated
with identifying, securing, and moving to new homes.
Certification of a hybrid class is appropriate where the class claims satisfy both (b)(2), as
to issues of injunctive relief, and (b)(3), as to issues of damages. See Thomas v. Powell, 247
F.3d 260, 265 n.2 (D.C. Cir. 2001). Here, both requirements are met. As described above, supra
pp. 21–23, Plaintiffs’ claim for injunctive relief readily satisfies the requirements for a (b)(2)
class. The only question remaining as to whether the certification of a hybrid class is appropriate
is whether class members’ damages claims satisfy (b)(3). Rule 23(b)(3) provides that a class
may be certified where “the court finds that the questions of law or fact common to class
members predominate over any questions affecting only individual members, and that a class
action is superior to other available methods for fairly and efficiently adjudicating the
controversy.” Fed. R. Civ. P. 23(b)(3). Because Plaintiffs claims are based on a uniform policy
affecting all putative class members, Plaintiffs satisfy both predominance and superiority.
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Predominance. To show predominance, the class “must establish that the issues in the
class action that are subject to generalized proof, thus applicable to the class as a whole,
predominate over those issues that are subject only to individualized proof.” Greenberg v.
Colvin, 63 F. Supp. 3d 37, 45 (D.D.C. 2014); see also Tyson Foods, Inc. v. Bouaphakeo, 136 S.
Ct. 1036, 1045 (2016) (“The predominance inquiry asks whether the common, aggregationenabling, issues in the case are more prevalent or important than the non-common, aggregationdefeating, individual issues.” (citations omitted)). The Supreme Court has held that a single
common issue can be the “most significant” common question in the analysis of predominance.
Tyson Foods, 136 S. Ct. at 1045 (“When ‘one or more of the central issues in the action are
common to the class and can be said to predominate, the action may be considered proper under
Rule 23(b)(3).’”) (quoting 7AA C. Wright, A. Miller, & M. Kane, Federal Practice and
Procedure § 1778)).
While predominance requires a more rigorous showing than commonality, it does not
require a plaintiff to show that there are no individual issues. Rather, “[w]hen one or more of the
central issues in the action are common to the class and can be said to predominate” certification
is proper “even though other important matters will have to be tried separately.” Id. at 1040. In
particular, the existence of some individualized inquiries related to calculating damages does not
defeat certification under (b)(3). To the contrary, the “[r]ecognition that individual damages
calculations do not preclude class certification under Rule 23(b)(3) is well nigh universal.”
Comcast v. Behrend, 133 S. Ct. 1426, 1437 (2013); see also In re Rail Freight Surcharge
Antitrust Litig.-MDL No. 1869, 725 F.3d 244, 252 (D.C. Cir. 2013) (disclaiming any requirement
that the class “demonstrate through common evidence the precise amount of damages incurred
by each class member”). What is required, instead is only that the fact of damages be subject to

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common proof. See, e.g., Coleman ex rel Bunn, 306 F.R.D. at 87. Finally, Rule 23(b)(3) only
requires a showing that common questions predominate, not that those questions will be
answered on the merits in favor of a class. Amgen, 133 S. Ct. at 1191.
Common questions predominate in this matter. All members of the class are families
who reside or have resided at Brookland Manor since 2014 who face the disparate impact of
Defendants’ redevelopment plan. The contents of this plan, its effect on housing availability,
and its asserted discriminatory impact on families are all questions that are common to the class.
A class action is particularly appropriate where the plaintiffs are allegedly aggrieved by a single
policy of the defendants such as a single redevelopment plan. See Maziarz, 281 F.R.D. at 84
(certifying a Rule 23(b)(3) class under the FHA and stating that “[a] class action is particularly
appropriate where the plaintiffs are allegedly aggrieved by a single policy of the defendants”).
Moreover, all class members face the same categorical harm: costs associated with loss
of their homes, and the resulting need to identify, secure, and move to new appropriately sized
homes. Although the precise amount of damages arising from such displacement may vary
among individual class members, the existence and nature of these damages are subject to
common proof. If Plaintiffs are unsuccessful in securing an injunction under Rule 23(b)(2) in
time, families inevitably will be displaced, and they will all incur associated relocation costs. 7
Indeed, it is appropriate given the inevitable nature of relocation expenses to presume the class
members will suffer this injury. See Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310–

7

To the extent that the Court finds the individualized nature of the damages inquiry
inappropriate for certification as a (b)(3) class, the Court should certify a (b)(2) class in
conjunction with a (c)(4) class for the purposes of resolving questions of liability. See, e.g.,
Taylor, 241 F.R.D. at 47; see also In re Nassau Cnty. Strip Search Cases, 461 F.3d 219, 226 (2d
Cir. 2006). After a determination of liability, Plaintiffs could proceed to seek damages claims
via individual Teamsters hearings. See, e.g., In re Johnson, 760 F.3d 66, 75 (D.C. Cir. 2014).
22

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11 (1986) (“When a plaintiff seeks compensation for an injury that is likely to have occurred but
difficult to establish, some form of presumed damages may possibly be appropriate.”). A set
figure for relocation costs for each family displaced can be generated by analyzing the market for
moving and apartment brokerage services in the D.C.-metro area and how far, on average,
families are displaced from Brookland Manor. It is clear that families will need to move a
significant distance away from the Brookland Manor neighborhood if their homes are lost, likely
across the Anacostia River to Southeast D.C. or potentially out of the District entirely.
Beveridge Decl. at ¶ 16. Plaintiffs can use a common damages model that incorporates the
average distance of displacement, average broker and security deposit fees, and the average permile moving costs to account for the monetary harm incurred by displacement.
Similarly, individualized inquiries about whether a family should appropriately reside in
a 3-, 4-, or 5-bedroom apartment do not predominate over the major common questions of this
case. To the extent that such individualized inquiries exist, they can be easily resolved through
common proof. As illustrated by Plaintiffs’ expert, Beveridge Decl. at ¶ 10, a classwide model
can determine the unit type required for each class member based on a common legal standard
for determining residential occupancy rates. See Ramirez v. Greenpoint Mortg. Funding, Inc.,
268 F.R.D. 627, 642 (N.D. Cal. 2010) (certifying a Rule 23(b)(3) class under the FHA and Equal
Credit Opportunity Act and stating with regards to the predominance requirement that “[p]roof
of disparate impact is based not on an examination of individual claims, but on a statistical
analysis of the class as a whole”).
Superiority. In addition to the predominance requirement, superiority is also satisfied.
Superiority requires that that “common questions of law or fact permit the court to consolidate
otherwise identical actions into a single efficient unit.” Bynum v. District of Columbia, 214

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F.R.D. 27, 40 (D.D.C. 2003). Here, the core questions of liability and redress are common to
each class member. Judicial efficiency would be wasted if each resident had to bring a separate
action against Defendants to resolve these shared questions. The record demonstrates that
Plaintiffs’ proposed class satisfies each of the requirements of Rule 23(b)(3), and therefore a
hybrid class should be certified.
IV.

Plaintiffs’ Counsel Should Be Designated as Class Counsel
A court that certifies a class must appoint class counsel, and in appointing class counsel,

the Court must examine “(i) the work counsel has done in identifying or investigating potential
claims in the action; (ii) counsel’s experience in handling class actions, other complex litigation,
and the types of claims asserted in the action; (iii) counsel’s knowledge of the applicable law;
and (iv) the resources that counsel will commit to representing the class.” Fed. R. Civ. P.
23(g)(1)(A)(i)-(iv). The Court may also consider “any other matter pertinent to counsel’s ability
to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(A).
The undersigned counsel respectfully request that the Court designate Plaintiffs’ counsel
as class counsel. Plaintiffs’ counsel is a combined legal team of attorneys from Covington &
Burling LLP and The Washington Lawyers’ Committee for Civil Rights and Urban Affairs. The
legal team from Covington & Burling LLP is experienced with complex litigation in federal
courts, including fair housing, civil rights, and class action matters. Decl. of Maureen F. Browne
at ¶ 2 [hereinafter Browne Decl.]. The Washington Lawyers’ Committee for Civil Rights and
Urban Affairs is highly experienced in the area of fair housing and civil rights and has litigated
comparable class action cases before this Court. Decl. of Matthew Handley at ¶ 2 [hereinafter
Handley Decl.].
This combined legal team has devoted substantial time and resources since 2015 to
investigate the facts and develop the legal theories of this case. Browne Decl. at ¶ 5; Handley
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Decl. at ¶ 4. Over the past two years, undersigned counsel have devoted hundreds of hours into
meeting with putative class members, reviewing publicly available information on Defendants’
redevelopment plans and conduct towards Brookland Manor residents (including attending D.C.
Zoning Commission hearings), and analyzing the disparate impact on families at Brookland
Manor. In addition, undersigned counsel have engaged (at private expense) the services of Dr.
Andrew Beveridge to serve as an expert in this litigation. Browne Decl. at ¶ 6.
This combined legal team is committed to the fair and diligent representation of the
interests of the proposed class going forward. All work to date and going forward on this matter
is provided by undersigned counsel on an entirely pro bono basis. The only interest of Plaintiffs’
counsel is ensuring that the legal rights of the members of the proposed class are fully protected.
CONCLUSION

As stated at the beginning, this case presents precisely the type of civil rights action that
courts have held is appropriate for class certification. Defendants’ redevelopment plan impacts a
class of individuals at Brookland Manor based on familial status, and adjudication of whether
that plan (and accompanying public statements) violates the FHA and DCHRA should be
conducted through a class action rather than in piecemeal litigation. Mses. Borum and Holloman
have courageously stepped forward on behalf of the families in their community threated by
Defendants’ redevelopment plan and the accompanying discriminatory statements. They are
prepared to fairly and vigorously represent the interests of their neighbors with the assistance of
experienced counsel. For the reasons set forth above, Plaintiffs satisfy all the requirements for
class certification under Rule 23.

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June 13, 2017
Respectfully submitted,
/s/ Maureen F. Browne
Maureen F. Browne (D.C. Bar No. 441440)
(mbrowne@cov.com)
Nooree Lee (D.C. Bar No. 1001687)
(nlee@cov.com)
Samuel Adriance (admitted pro hac vice)
(sadriance@cov.com)
Amber M. Charles (D.C. Bar No. 1035226)
(acharles@cov.com)
COVINGTON & BURLING LLP
One CityCenter
850 10th Street NW
Washington, D.C. 20001
Telephone: (202) 662-6000
/s/ Matthew Handley
Matthew Handley (D.C Bar No. 489946)
(matthew_handley@washlaw.org)
Catherine Cone (D.C. Bar No. 1032267)
(catherine_cone@washlaw.org)
WASHINGTON LAWYERS’
COMMITTEE FOR CIVIL RIGHTS &
URBAN AFFAIRS
11 Dupont Circle, NW, Suite 400
Washington, D.C. 20036
Telephone: (202) 319-1000
Counsel for Plaintiffs Adriann Borum,
Lorretta Holloman, ONE DC, and all those
similarly situated.

26