Class actions are an exception to the general rule that litigation must be conducted by individual named parties. See Comcast Corp. v. Behrend, ___ U.S. ___, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). Rule 23 of the Federal Rules of Civil Procedure contains the procedural requirements for class action litigation. A party seeking to bring a class action "must affirmatively demonstrate his[or her] compliance" with Rule 23. Id. An inquiry under Rule 23 begins with a determination of whether the plaintiff has satisfied the prerequisites of Rule 23(a): numerosity, commonality, typicality, and adequacy of the class representative. Depending on the type of class the movant seeks to certify, s/he must also demonstrate that the class meets certain requirements of Rule 23(b). Shelton v. Bledsoe, 775 F. 3d 554 (3rd Cir. 2015).
Because a class action is an exception to the usual rule that only a named party before the court can have her claims adjudicated, the class representative must be part of the class and possess the same interest and suffer the same injury. Wal-Mart Stores v. Dukes, ___ U.S. ___, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011). The general gate-keeping function of Federal Rule 23(a) ensures that they are. All class actions, no matter what type, must meet the four explicit requirements of Federal Rule of Civil Procedure 23(a):
(1) the class is so numerous that joinder of all members is impracticable (numerosity);
(2) there are questions of law or fact common to the class (commonality);
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class (typicality); and
(4) the representative parties will fairly and adequately protect the interests of the class (adequacy of representation).Fed.R.Civ.P. 23(a) Chicago Teachers Union v. Bd. of Educ., 797 F. 3d 426 (7th Cir. 2015).
The word "ascertainable" does not appear in the text of Rule 23. However, "[a]lthough not specifically mentioned in the rule, an essential prerequisite of an action under Rule 23 is that there must be a 'class.'" 7A C. Wright, A. Miller, & M. Kane, Fed. Prac. & Proc. Civ. § 1760 (3d ed.2005). Courts have generally articulated this "essential prerequisite" as the implied requirement of "ascertainability"—that the members of a class are identifiable at the moment of certification. Because the question is intensely fact-specific and the origins of the requirement murky, a precise definition of the judicially-created requirement of ascertainability is elusive. See Alliance to End Repression v. Rochford, 565 F.2d 975, 980 n. 6 (7th Cir. 1977) (noting that "[i]t is not clear whether the source of th[e] implied requirement [of ascertainability] is ... Rule 23(a)(2) or more simply something inherent in the very notion of a 'class'"). Shelton v. Bledsoe, ibid.
In addition, the district court must be satisfied that certification is appropriate under Rule 23(b). Comcast, 133 S.Ct. at 1432. One of the bases for certification under Rule 23(b), [ ] allows for certification if both (1) "questions of law or fact common to class members predominate over any questions affecting only individual members," and (2) "a class action is superior to other available methods for fairly and efficiently adjudicating the controversy." Fed.R.Civ.P. 23(b)(3). Predominance is satisfied "if resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof, and if these particular issues are more substantial than the issues subject only to individualized proof." Catholic Healthcare W. v. U.S. Foodservice Inc. (In re U.S. Foodservice Inc. Pricing Litig.), 729 F.3d 108, 118 (2d Cir.2013) (quoting UFCW Local 1776 v. Eli Lilly & Co., 620 F.3d 121, 131 (2d Cir.2010)) (internal quotation marks omitted). Roach v. TL Cannon Corp., 778 F. 3d 401 (2nd Cir. 2015).
Wal-Mart reaffirmed existing precedent that courts must rigorously examine whether plaintiffs have met the prerequisites of Rule 23(a) at the certification stage, an analysis that will often overlap with the merits of a claim. Wal-Mart, 131 S.Ct. at 2551 (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160-61, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). But as the Court later clarified, "Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage." Amgen Inc. v. Conn. Ret. Plans & Trust Funds, ___ U.S. ___, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013). Instead, the merits of a claim may be considered only when "relevant to determining whether the Rule 23 prerequisites for class certification are satisfied." Id. at 1195. Brown v. Nucor Corp., 785 F. 3d 895 (4th Cir. 2015).
Relevant to the question of whether a class can include uninjured members, three principles are established. First, a class action is improper unless the theory of liability is limited to the injury caused by the defendants. In other words, the defendants cannot be held liable for damages beyond the injury they caused. The Supreme Court emphasized this principle in Comcast. The plaintiffs in that case had initially relied on four theories of liability and had calculated aggregate damages based on all four theories. 133 S.Ct. at 1434. But the district court certified the class based on only one theory, and plaintiffs did not provide a damages calculation for that one theory standing alone. Id. Because the plaintiffs relied on "a methodology that identifies damages that are not the result of the wrong[,]" they did not establish that "damages are capable of measurement on a classwide basis," failing to meet the Rule 23(b)(3) requirement. Id. at 1434, 1433. [Footnote omitted.] In re Nexium Antitrust Litigation, 777 F. 3d 9 (1st Cir. 2015).
Comcast d[oes] not require that plaintiffs show that all members of the putative class had suffered injury at the class certification stage—simply that at class certification, the damages calculation must reflect the liability theory. 133 S.Ct. at 1434. In re Nexium Antitrust Litigation, ibid.
Second, the definition of the class must be "definite," that is, the standards must allow the class members to be ascertainable. See William B. Rubenstein, Newberg on Class Actions §§ 3:1, 3:3 (5th ed.2013) (explaining that an "implied" requirement for certification is that "a putative class [is] ascertainable with reference to objective criteria"); Matamoros v. Starbucks Corp., 699 F.3d 129, 139 (1st Cir. 2012) (holding that a class was not "unascertainable and overbroad" where it was defined in terms of an "objective criterion"); Carrera v. Bayer Corp., 727 F.3d 300, 306 (3d Cir.2013) (As an "essential prerequisite of a class action," plaintiffs "must show, by a preponderance of the evidence, that the class is currently and readily ascertainable based on objective criteria." (citing Marcus v. BMW of North America, LLC, 687 F.3d 583, 592-93 (3d Cir.2012) In re Nexium Antitrust Litigation, ibid.
Third, where an individual claims process is conducted at the liability and damages stage of the litigation, the payout of the amount for which the defendants were held liable must be limited to injured parties. [Footnote omitted.] At the class certification stage, the court must be satisfied that, prior to judgment, it will be possible to establish a mechanism for distinguishing the injured from the uninjured class members. The court may proceed with certification so long as this mechanism will be "administratively feasible," see Carrera, 727 F.3d at 307, and protective of defendants' Seventh Amendment and due process rights, see American Law Institute, Principles of the Law: Aggregate Litigation, §§ 2.02(a)(3), 2.07(d) cmt. j (2009) (indicating that the court should exercise discretion to authorize aggregate treatment only if it would "not compromise the fairness of procedures for resolving any remaining issues presented by such claims" and that "due process in aggregation ... extend[s] to persons opposing the aggregate group litigating related claims on an aggregate basis"). In re Nexium Antitrust Litigation, ibid.
In 1975, the Supreme Court modified the general rule of mootness, which is that a class action becomes moot when the putative representative plaintiff's claim has been rendered moot before a class is certified. The Court declined to find mootness where the named class action plaintiff's claim becomes moot after the class was certified. Sosna v. Iowa, 419 U.S. 393, 402-03, 95 S.Ct. 553, 559, 42 L.Ed.2d 532 (1975). Important to the Court's reasoning was that "[w]hen the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by [the named plaintiff]." 419 U.S. at 400, 95 S.Ct. at 557. Consequently, a live controversy continued to exist. Id. at 399-402, 95 S.Ct. at 558. The Court concluded:
There must ... be a named plaintiff who has such a case or controversy at the time the complaint is filed, and at the time the class is certified by the District Court.... The controversy may exist, however, between a named defendant and a member of the class represented by the named plaintiff, even though the claim of the named plaintiff has become moot.
419 U.S. at 402, 95 S.Ct. at 559. Fontenot v. McCraw, 777 F. 3d 741 (5th Cir. 2015).
The Court subsequently applied Sosna's reasoning to mootness that follows an order denying class certification. U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 404, 100 S.Ct. 1202, 1212, 63 L.Ed.2d 479 (1980). The Court there held that a putative class representative can maintain an action when the suit "would have acquired the independent legal status described in Sosna but for the district court's erroneous denial of class certification[.]" Genesis Healthcare Corp. v. Symczyk, ___ U.S. ___, 133 S.Ct. 1523, 1530, 185 L.Ed.2d 636 (2013) (discussing Geraghty). Geraghty was explicitly limited to cases in which the named plaintiff's claim becomes moot after the time the district court denied certification and the district court's "erroneous[] deni[al] ... if correctly decided, would have prevented the action from becoming moot." Geraghty, 445 U.S. at 404, 100 S.Ct. at 1212. In that scenario, "the corrected ruling 'relates back' to the date of the original denial." Id. at 404, 100 S.Ct. at 1213. Fontenot v. McCraw, ibid.
THIS CASEBOOK contains a selection of 226 U. S. Court of Appeals decisions that analyze and interpret the class certification provisions of Rule 23 of the Federal Rules of Civil Procedure. The selection of decisions spans from 2004 to the date of publication.