Case 3:22-cv-00033-MAD-ML Document 33 Filed 02/04/22 Page 1 of 3

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

William A. Jacobson, on behalf of

himself and others similarly situated,

Plaintiff,

v. Case No. 3:22-cv-00033-MAD-ML

Mary T. Bassett, in her official capacity

as Acting Commissioner of the New
York Department of Health,

Defendant.

PLAINTIFF’S NOTICE OF MOTION FOR CLASS

CERTIFICATION
PLEASE TAKE NOTICE that, pursuant to the schedule ordered by this Court
and upon the annexed memorandum of law, declaration, and all other pleadings and
proceedings, Plaintiff William A. Jacobson respectfully moves this Court under Rule
23(b)(2) of the Federal Rules of Civil Procedure for an order:
1. Certifying the proposed class consisting of all individuals in New York State
who do not qualify as “[n]on-white race or Hispanic/Latino ethnicity” under the
New York Department of Health’s guidelines for distributing COVID-19 treatments;

and
2. Appointing Plaintiff William A. Jacobson as class representative.

plaintiff’s motion for class certification Page 1 of 3

 Case 3:22-cv-00033-MAD-ML Document 33 Filed 02/04/22 Page 2 of 3

Respectfully submitted.

/s/ Jonathan F. Mitchell

Gene P. Hamilton* Jonathan F. Mitchell*
Virginia Bar No. 80434 Texas Bar No. 24075463
Vice-President and General Counsel Mitchell Law PLLC
America First Legal Foundation 111 Congress Avenue, Suite 400
300 Independence Avenue SE Austin, Texas 78701
Washington, DC 20003 (512) 686-3940 (phone)
(202) 964-3721 (512) 686-3941 (fax)
[email protected] [email protected]

Adam K. Mortara* Jeffrey Harris*

Illinois Bar No. 6282005 Michael Connolly*
Lawfair LLC James Hasson*
125 South Wacker Drive Suite 300 Consovoy McCarthy PLLC
Chicago, Illinois 60606 1600 Wilson Boulevard, Suite 700
(773) 750-7154 (703) 243-9423
[email protected] Arlington, Virginia 22209
[email protected]
James P. Trainor [email protected]
New York Bar No. 505767 [email protected]
Trainor Law PLLC
2452 U.S. Route 9
Malta, New York 12020
518-899-9200 (phone) * admitted pro hac vice or
518-899-9300 (fax) pro hac vice application pending
[email protected]
Counsel for Plaintiff and
Dated: February 4, 2022 the Proposed Class

plaintiff’s motion for class certification Page 2 of 3

 Case 3:22-cv-00033-MAD-ML Document 33 Filed 02/04/22 Page 3 of 3

CERTIFICATE OF SERVICE
I certify that on February 4, 2022, I electronically filed this document with the
clerk of court using the CM/ECF System, which will automatically send e-mail noti-

fication to all counsel of record.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Counsel for Plaintiff and
the Proposed Class

plaintiff’s motion for class certification Page 3 of 3

 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 1 of 9

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

William A. Jacobson, on behalf of

himself and others similarly situated,

Plaintiff,

v. Case No. 3:22-cv-00033-MAD-ML

Mary T. Bassett, in her official capacity

as Acting Commissioner of the New
York Department of Health,

Defendant.

BRIEF IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 2 of 9

TABLE OF CONTENTS
Table of contents .................................................................................................... i
Table of authorities ................................................................................................ ii
I. The Court should certify the proposed class under Rule 23(b)(2)................ 1
A. The proposed classes are so numerous that joinder of all members
is impractical ......................................................................................... 1
B. There are questions of law or fact common to the members of the
class....................................................................................................... 1
C. Mr. Jacobson’s claims are typical of the claims of the class....................... 2
D. Mr. Jacobson will fairly and adequately protect the interests of the
class....................................................................................................... 3
E. The proposed class satisfies Rule 23(b)(2) .............................................. 4
Conclusion ............................................................................................................ 5
Certificate of service .............................................................................................. 6
 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 3 of 9

TABLE OF AUTHORITIES
Cases
Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997) ............................................ 3
In re Nat’l Football League Players Concussion Injury Litig.,
821 F.3d 410 (3d Cir. 2016) ............................................................................. 1
M.D. v. Perry, 675 F.3d 832 (5th Cir. 2012).......................................................... 2
Marisol A. v. Giuliani, 126 F.3d 372 (2d Cir. 1997) .............................................. 2
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ...................................... 2, 3, 4
Rules
Fed. R. Civ. P. 23(b)(2) ......................................................................................... 4
 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 4 of 9

The plaintiff respectfully moves to certify a class under Rule 23(b)(2). The pro-
posed class will be represented by plaintiff William A. Jacobson, and it consists of all

individuals in New York State who do not qualify as “[n]on-white race or His-
panic/Latino ethnicity” under the New York Department of Health’s guidelines for
distributing oral antiviral COVID-19 treatments.

I. The Court Should Certify the Proposed Class Under Rule

23(b)(2)
A party that moves for class certification must satisfy each requirement of Rule
23(a) and at least one subdivision in Rule 23(b). The proposed classes meet each of
these requirements.

A. The Proposed Classes Are So Numerous That Joinder Of All

Members Is Impractical
The number of New York residents who are facing discrimination from the De-
partment of Health on account of their race and ethnicity easily exceeds the numer-
osity threshold. See In re Nat’l Football League Players Concussion Injury Litig., 821
F.3d 410, 426 (3d Cir. 2016) (“[N]umerosity is generally satisfied if there are more
than 40 class members.”). According to the 2020 census, New York state has

20,201,249 residents, and 55.2% of that total (approximately 11.15 million) is “white
alone.” See New York: 2020 Census, U.S. Census Bureau (Aug. 25, 2021),

https://bit.ly/3glpdCM. And only 19.5% of New York’s population (approximately

3.94 million) reported Hispanic or Latino ethnicity. See id. Thus, at a minimum, there
are more than 7.2 million people in New York who are white and not of Hispanic or
Latino ethnicity, which is well in excess of the numerosity threshold.

B. There Are Questions Of Law Or Fact Common To The Members

Of The Class
Mr. Jacobson seeks to litigate three questions of law common to each member of
the class:

1
 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 5 of 9

1. Whether the New York Department of Health is violating the Equal

Protection Clause by rationing lifesaving COVID-19 medications
on the basis of race and ethnicity.

2. Whether the New York Department of Health is violating Title VI

by rationing lifesaving COVID-19 medications on the basis of race
and ethnicity.

3. Whether the New York Department of Health is violating section

1557 of the Affordable Care Act by rationing lifesaving COVID-19
medications on the basis of race and ethnicity.
These questions affect all class members because each of them is subject to dis-

crimination on account of their race and ethnicity, as each of them is excluded from
the Department-preferred category of “[n]on-white race or Hispanic/Latino ethnic-
ity.” Each class member will “suffer the same injury,” and that is all that needed to
satisfy Rule 23(a)(2)’s commonality requirement. Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 348 (2011) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S.
395, 403 (1977)); see also id. at 360 (“[E]ven a single [common] question will do.”
(citation and internal quotation marks omitted)). And a ruling on these issues “will
resolve an issue that is central to the validity of each one of the claims in one stroke.”
Id. at 350.

C. Mr. Jacobson’s Claims Are Typical Of The Claims Of The Class

Mr. Jacobson’s claims are more than typical: they are precisely the same as those
from all members of the proposed class. The New York Department of Health has

implemented a program that actively discriminates against all of the class members
based on their race or ethnicity. Each class member’s claim arises from the same course
of events — the Department of Health’s decision to establish and enforce racially dis-
criminatory criteria for distributing COVID-19 medications. And each class member
is making the same legal arguments to prove the defendant’s liability. See Marisol A.
v. Giuliani, 126 F.3d 372, 376 (2d Cir. 1997) (“Typicality . . . requires that the claims
of the class representatives be typical of those of the class, and is satisfied when each

2
 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 6 of 9

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.” (citation and internal

quotation marks omitted); see also Wal-Mart, 564 U.S. at 350 n.5 (“[T]he common-
ality and typicality requirements of Rule 23(a) tend to merge.” (quoting Gen. Tel. Co.
of Sw. v. Falcon, 457 U.S. 147, 157–58 n.13 (1982)).

D. Mr. Jacobson Will Fairly and Adequately Protect the Interests of

The Class
Mr. Jacobson will fairly and adequately represent the interests of his fellow class
members, and there are no conflicts of interest between the plaintiff and the other
members of this class.
The class consists of “all individuals in New York State who do not qualify as
‘[n]on-white race or Hispanic/Latino ethnicity’ under the New York Department of
Health’s guidelines for distributing COVID-19 treatments.” There is no conceivable
conflict of interest that could arise from the plaintiff’s efforts to prevent the Depart-
ment discriminating against members of the class. 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 repre-
sent.”). A classwide injunction will serve only to protect the class members’ constitu-
tional rights, as well as rights guaranteed under the Civil Rights Act of 1964 and
section 1557 of the Affordable Care Act. Mr. Jacobson is an appropriate class repre-
sentative because he has a vested interest in ensuring the success of this litigation and
preventing Commissioner Bassett from discriminating against anyone because of their
race or ethnicity. And the interests of Mr. Jacobson are aligned with those of the class,
as each class member benefits from a ruling that prevents the Department of Health
from discriminating against them because of their race or ethnicity.

3
 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 7 of 9

E. The Proposed Class Satisfies Rule 23(b)(2)

The final criterion for class certification under Rule 23(b)(2) is that “the party
opposing the class has acted or refused to act on grounds that apply generally to the

class, so that final injunctive relief or corresponding declaratory relief is appropriate

respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). The Supreme Court has
held that this requirement is satisfied “when a single injunction or declaratory judg-
ment would provide relief to each member of the class.” Wal-Mart, 564 U.S. at 360;
see also id. at 361–62 (“[T]he relief sought must perforce affect the entire class at once
. . . .”). That is precisely what the plaintiff requests: a single injunction that stops
Commissioner Bassett from discriminating against any of the class members because
of their race or ethnicity. No one is seeking individualized relief for any class member
or for any subset of the class. The plaintiff requests a simple, classwide injunction that
prevents the class members from being discriminated against because of their race or
ethnicity.
In addition, Commissioner Bassett is “act[ing] . . . on grounds that apply gener-
ally to the class.” Fed. R. Civ. P. 23(b)(2). With respect to the class, the Commissioner

has expressly rationed and prioritized the distribution of COVID-19 treatments on

account of race and ethnicity. Because this discriminates against all class members, it
makes “final injunctive relief or corresponding declaratory relief . . . appropriate re-
specting the class as a whole.” Fed. R. Civ. P. 23(b)(2); see also Wal–Mart, 564 U.S.
at 360 (“Rule 23(b)(2) applies only when a single injunction or declaratory judgment
would provide relief to each member of the class.”).

4
 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 8 of 9

CONCLUSION
The motion for class certification should be granted.

Respectfully submitted.

/s/ Jonathan F. Mitchell

Gene P. Hamilton* Jonathan F. Mitchell*
Virginia Bar No. 80434 Texas Bar No. 24075463
Vice-President and General Counsel Mitchell Law PLLC
America First Legal Foundation 111 Congress Avenue, Suite 400
300 Independence Avenue SE Austin, Texas 78701
Washington, DC 20003 (512) 686-3940 (phone)
(202) 964-3721 (512) 686-3941 (fax)
[email protected] [email protected]

A dam K. Mortara* Jeffrey Harris*

Illinois Bar No. 6282005 Michael Connolly*
Lawfair LLC James Hasson*
125 South Wacker Drive, Suite 300 Consovoy McCarthy PLLC
Chicago, Illinois 60606 1600 Wilson Boulevard, Suite 700
(773) 750-7154 (703) 243-9423
[email protected] Arlington, Virginia 22209
[email protected]
James P. Trainor [email protected]
New York Bar No. 505767 [email protected]
Trainor Law PLLC
2452 U.S. Route 9
Malta, New York 12020
518-899-9200 (phone) * admitted pro hac vice or
518-899-9300 (fax) pro hac vice application pending
[email protected]
Counsel for Plaintiff and
Dated: February 4, 2022 the Proposed Class

5
 Case 3:22-cv-00033-MAD-ML Document 33-1 Filed 02/04/22 Page 9 of 9

CERTIFICATE OF SERVICE
I certify that on February 4, 2022, I electronically filed this document with the
clerk of court using the CM/ECF System, which will automatically send e-mail noti-

fication to all counsel of record.

/s/ Jonathan F. Mitchell

Jonathan F. Mitchell
Counsel for Plaintiff and
the Proposed Class

6
 Case 3:22-cv-00033-MAD-ML Document 33-2 Filed 02/04/22 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NE$T/ YORK

SYIITIAM A.JACOBSON, on beh.alf of

himself and others similarly situated,
Pkinlif, Case N o. 3:22- cv -00033-l\,i:\D-ML

MARY T. IIASSETT, in her official capaciry as

Acting Commissioner ot the Nerv York
Department of Healtl'r,

Defendant.

DECr-ARATTON OF WTLLTAM A. JACOBSON

1. I zm a United States citizen and resident of Tompkins County, New York.

2. I am over the age ot- eighteen arrd under no mental disability or impairment. I have

personal linor.vledge of the follorving facts and, ii called as a rvitness, I r.vould competently testity to

them.

3. I am oF East Europe?rn ancestry zrncl ncit "n<>n-white" imcl not of llispanic/Lating

ethnicity. I am 62years old.

4' I arn a Clinical Professor of l,inv irt Cornell Llniversity.'I'he universiry recently had a

seYere outbreak of COVID-I9 despite its extensive COVID protocols. More rhan 1,300 people on

campus were infected in iust one week according to reported statjstics. .fee Anil Oza, Hou., the Onicrun

Vaiant and the End of the 5'emeffer C)reated a Perfect |'torn'1for C'ome//'t C'OWD Oatbrvak,I'he Cornell Sun,

(Dec. 1 7, 2021), https:/ /bit .ly / 32zAsG c.

5. As of February 3,2022, there harre been <iver 75 rnillion reported cases of (IOVID-19

in the Uniteci States according to reported statjstics. .fee COl.7D Dal:aTrucker, Centers for Disease

Co ntro I & Prevention, htq:s / / b it. Iy / 3JaSWfB.

:
 Case 3:22-cv-00033-MAD-ML Document 33-2 Filed 02/04/22 Page 2 of 3

6. According to iederal officials, "most people are going to get covid." Aaron Rlake, Most

People Are Goiug to Cel: Cztid': A lvlonentoas lY,lanting al a .fenate Heaing,\Yashington Post (]an. 11,2022),

https : / /rvapo. s t/ 3f clyxVt

7. \X,'hen I inevitably contract COVLD-19, I'uvant to irnmediately access oral zurtiviral

treatments to reduce my risk of serious illness or death.

8. In New York, lt{rrvever, I '.un not'.rutomatically eligible to receive these treatments

beciruse I am notnon-white:rnd ncit of "Ilispanicf I;atino ethnicity." I can only olltain these treatments

iil demonstrate"a medical conclition or other tactors that increase [my] risk for severe illness."

9. Like Nerv Yorkers of other races and ethnicity, I want to be eligible for and obtzrin

these treatments without having to demonstrzte a. "meclical condition or other f?rctors thzrt increase

fmy] risk fbr severe illness."

10. I have n heightenecl concern lviren .l go about my daiiy activities because I knorv that
I arn not automatic'ally eligible for life-silving treatnrents under Nerv York State guidelines solely

because of my race,and ethnicity.

 Case 3:22-cv-00033-MAD-ML Document 33-2 Filed 02/04/22 Page 3 of 3

Pursuant to 28 {"i.S.C. $17i16, I c'lcclare under penalty oiper:jur:y that the foregoing is true anc'l

correct to the best of my knorvlec-lge.

I-ixecutecl ,f-,is{try of F'ebru:rry ,2022

 Case 3:22-cv-00033-MAD-ML Document 33-3 Filed 02/04/22 Page 1 of 2

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF NEW YORK

William A. Jacobson, on behalf of

himself and others similarly situated,

Plaintiff,

v. Case No. 3:22-cv-00033-MAD-ML

Mary T. Bassett, in her official capacity

as Acting Commissioner of the New
York Department of Health,

Defendant.

[PROPOSED] ORDER GRANTING

MOTION FOR CLASS CERTIFICATION
Before the court is the plaintiff’s motion for class certification, filed February 4,
2022. Having considered the motion, case file, and applicable law,
IT IS ORDERED that Plaintiff’s motion is GRANTED.
The Court certifies the following class under Rule 23(b)(2) of the Federal Rules
of Civil Procedure. The class consists of:

All individuals in New York State who do not qualify as “[n]on-white

race or Hispanic/Latino ethnicity” under the New York Department
of Health’s guidelines for distributing COVID-19 treatments.
William A. Jacobson is appointed class representative. Jonathan F. Mitchell, Adam K.
Mortara, Jeffrey Harris, Michael Connolly, James Hasson, Gene P. Hamilton, James
P. Trainor are appointed class counsel under FRCP 23(g). The class claims are:

1. Whether the New York Department of Health is violating the Equal

Protection Clause by rationing lifesaving COVID-19 medications
on the basis of race and ethnicity.

2. Whether the New York Department of Health is violating Title VI

by rationing lifesaving COVID-19 medications on the basis of race
and ethnicity.

proposed order granting motion for class certification Page 1 of 2

 Case 3:22-cv-00033-MAD-ML Document 33-3 Filed 02/04/22 Page 2 of 2

3. Whether the New York Department of Health is violating section

1557 of the Affordable Care Act by rationing lifesaving COVID-19
medications on the basis of race and ethnicity.

____________________________________
MAE A. D’AGOSTINO
Dated: _________________, 2022 UNITED STATES DISTRICT JUDGE

proposed order granting motion for class certification Page 2 of 2