Updated 2014 by Sarah Somers
The process of successfully defining and managing a class action includes consideration of many factors. Counsel must carefully select the named plaintiffs and define the class, keeping in mind the Rule 23 (a) and (b) issues discussed above. Next, counsel must address pre-certification issues and the process of moving for class certification. Finally, the possibility of interlocutory appeals, notice and opt-out procedures and communication with the class are all important issues that will be discussed below.
7.3.A. Selection of Named Plaintiff(s)
The careful selection of class representatives avoids many procedural problems and presents the case in its best light. If the only available client would not be a suitable class representative, do not bring the case as a class action.
When evaluating a potential class representative, be alert for conflicts between the interests of the named plaintiff and the putative class; the possibility of mootness of the named plaintiff’s claim; whether the injuries suffered by the named representative are typical of those in the putative class; and the standing of the named plaintiff to seek each type of relief sought. In addition, counsel must consider the ability of the plaintiff to cooperate with, and withstand successfully anticipated discovery, and determine whether plaintiffs are required to exhaust administrative remedies prior to bringing suit.
Consideration should also be given to the potential media exposure, possible retaliation by defendants, and the plaintiff’s ability to cope with such pressures. As in any other situation, weaknesses in the client’s case, difficulties in their background and countervailing strengths or poignant facts must be identified.
7.3.B. Defining the Class
Rule 23(c)(1)(C) provides that the class may be defined or redefined at any time before final judgment. This may occur either following a motion of either party or by the court.1 Thus, counsel should reevaluate the initially drafted definition as discovery proceeds and the case takes shape. Counsel should request redefinition if appropriate.
When defining the class, counsel must consider: (1) the time frame, which will determine who may be included; (2) the geographic size of the class; and (3) the common claims and injuries experienced by the class as a whole, all with an eye to the relief requested. The effect on similar ongoing or planned litigation should also be considered.
7.3.B.1. Time Frame
The applicable statute of limitations determines whether to define the class to include individuals harmed before the filing of the case and the cut-off dates to use in determining eligibility for the class. However, the inclusion of class members in a putative class whose individual claims may be subject to affirmative defenses, such as a statute of limitations, does not preclude class certification so long as common issues otherwise predominate.2
Other factors to be considered in defining the class include: (1) the date and duration of defendant’s challenged action and (2) whether the action is a continuous one. Where the injury is continuous, retroactive and/or prospective relief may be available. In evaluating whether to seek retroactive relief, counsel must determine whether the Eleventh Amendment limits such relief3 and whether the difficulty in finding class members makes such relief impracticable. The class definition may also include individuals who may be harmed in the future.4
7.3.B.2. Geographic Scope
Counsel must consider whether there is ongoing or planned litigation in the same or an overlapping geographical area. If other attorneys are likely to bring the same or very similar case in a different geographic area soon, limiting the geographic size of the class is probably a good idea. While expanding the geographic scope may help in establishing numerosity, complications can arise with commonality, management of the class, and relief. At the same time, nationwide class actions are certainly permissible.5 They may be helpful in avoiding inconsistent applications of policy.
7.3.B.3. Common Claims and Injuries
To assure standing, the class definition should be tied to the injury suffered by class members and to the relief sought. For example, rather than drafting a class definition as “all residents of X public mental institution,” it is better to define the class more specifically as “all residents of X public mental institution who, since [date] have been or will be placed in isolation or restraints without written standards or appeal rights.” The latter definition more precisely shows that the class members suffered an injury, that the injury is caused by the defendants, and that the relief requested by the class will remedy the harm.
The definition of the injury should be factually specific, as opposed to tied to a legal term. This avoids requiring the court to make an individual legal determination regarding each person’s inclusion in the class.6 The type of relief requested may have an impact on the class definition. For example, in a case where administrative action is challenged, the class may have to be defined as having exhausted administrative remedies in order to obtain relief7 unless plaintiffs can show that exhausting administrative remedies would be futile.8
Reviewing the type of injury suffered by class members may reveal that (1) different legal theories support relief for some, but not all; (2) different injuries are experienced by various groups within the class; or (3) the interests of some of the class conflict with the interests of other class members. In such situations, subclasses may be appropriate.9 In the first two scenarios, subclasses would probably help clarify the issues and ensure that the claims of the named representative are typical of the claims of the class. In the third, when conflicts arise, most courts will require that the subclasses be represented by independent counsel. Remember that subclasses must independently meet all of the Rule 23 requirements.10
7.3.C. Precertification Discovery
After counsel has selected and defined the class and filed suit, the next questions are whether pre-certification discovery will be allowed and what the scope is of that discovery. The two main issues are: (1) whether discovery related to the existence of the class should be permitted before class certification and (2) whether discovery on the merits should be held in abeyance until the motion for class certification is determined.
7.3.C.1. Class Discovery
Earlier editions of the Manual for Complex Litigation suggested that the determination of whether Rule 23’s requirements are met should generally be decided on the pleadings. Modifying that view somewhat, the most recent edition indicates that class certification decisions may turn on matters outside the pleadings.11 On occasion, the pleadings alone permit a determination of whether the criteria for class certification in Rule 23(a) and (b) are satisfied.12 For example, if the defendant’s opposition to the certification motion is based solely on issues of law, the court may make the determination without discovery. Otherwise, courts have held that it is error to accept factual allegations in the complaint as true13 and, as a result, discovery is often permitted with respect to issues pertaining to class certification requirements.14
Sometimes, a court will refuse discovery but allow declarations or other evidence to supplement the pleadings in support of or in opposition to the motion for class certification, including expert affidavits or other corroborating evidence gathered outside the formal discovery process.15 Reasonable inferences and estimates based on such material may be sufficient to demonstrate that certification is warranted.16 More commonly, however, the court will require an evidentiary hearing and has considerable discretion to determine the scope of such a hearing and what evidence may be admitted at it.17 Whatever type of evidence is used, the plaintiff bears the burden of making a prima facie showing that the prerequisites of class certification are, or can be, satisfied after discovery.18
If precertification discovery is granted, it should aim to give an “informed judicial assessment” of the class certification issue even if such facts overlap with the merits of the case.19 With respect to discovery of defendants, discovery is generally limited to facts relevant to the Rule 23(a) and (b) criteria. Mindful of the requirement that a certification decision should be made "at an early practicable time," courts may limit precertification discovery to that which can be done promptly and with a high probability of relevance. 20
In an effort both to expedite and to narrow the scope of discovery for class certification, courts commonly employ a number of restrictions. First, geographic and time constraints may be used, limiting discovery to a specific region of the country or for a certain duration.21 Second, the number of people from whom information is sought may also be restricted. For example, discovery of the proposed class representatives or class members may be limited to a certain number, group, or percentage of individuals in a particular putative class or subclass.22 If the class defined by the plaintiff is unreasonably broad, a court may also limit discovery relevant to a similar but more practicable class. Third, although depositions are usually acceptable methods for pre-certification discovery, some courts first require a demonstration of good cause for using a deposition. The number and length of requests for production, interrogatories, and depositions are often limited as well.23
Generally the courts are hesitant to allow discovery of absent class members.24 The courts balance the defendant’s need for information against the privacy interests of uninvolved parties who did not initiate the suit.25 Initial discovery is confined to what is necessary for determining whether a proper class action exists. In some instances, however, courts allow discovery of absent class members.26 For example, some courts are willing to subject absent class members to discovery where the proponent shows that (1) the discovery is not designed to take undue advantage of class members or to reduce the size of the class; (2) the discovery is necessary; (3) responding to the discovery requests would not require the assistance of counsel or other technical advice; and (4) the discovery seeks information not already known by the proponent.27 Other courts allow discovery of absent class members only “where a strong showing is made that the information sought: (1) is not sought for the purpose of harassment or altering membership of the class; (2) is directly relevant to common questions and unavailable from the representative parties; and (3) is necessary at trial for issues common to the class.”28
Representative plaintiffs must be capable of fully financing litigation on behalf of their class, but discovery of financial information is strictly limited.29 As a result, sworn statements or affidavits often suffice to prove financial adequacy.30
Rule 23(d) authorizes district courts to order defendants to aid in determining the identity of absent class members.31 If the identification can be done with less difficulty and expense by the defendant, a court normally compels assistance. Otherwise, the plaintiffs bear the costs and efforts of such investigatory work.
7.3.C.2. Bifurcation Of Class and Merits Discovery
The Manual for Complex Litigation suggests that bifurcation of discovery may be useful when the merits discovery is not related to the certification issues.32 Where discovery is bifurcated, pre-certification discovery proceeds while merits discovery is stayed. If merits discovery is stayed, the discovery plan should make clear when the stay will be lifted. Nonetheless, often no bright line distinguishes class and merits discovery.33
Consequently, courts must balance the interest in gathering a complete record from which to decide class certification and the risk of potentially burdensome or unnecessary discovery if the class certification motion is denied. If the case would likely continue even if class certification is denied, the downside of discovery is less and the court more likely to be permissive with pre-certification discovery.34
Updated 2014 by Sarah Somers
- 1. See, e.g., Hnot v. Willis Group Holdings, 241 F.R.D. 204, 207-08 (S.D.N.Y. 2007) (reconsideration of class certification orders justified by intervening events); Conant v. McCaffrey, 172 F.R.D. 681, 693-94 (N.D. Cal. 1997) (class redefined by court and recognizing that court can redefine the class at any point in the litigation).
- 2. See, e.g., Smilow v. Sw. Bell Mobile Sys., Inc., 323 F.3d 32, 39-40 (1st Cir. 2003).
- 3. See Chapter 8.1 of this MANUAL for a discussion of the Eleventh Amendment.
- 4. Future class members are commonly included, especially when conditions continue to harm individuals coming into the class, if the offending behavior may continue after current class members’ claims are resolved. See, e.g. J.D. v. Nagin, 255 F.R.D. 406, 414 (E.D. La. 2009); Reynolds v. Giuliani, 118 F. Supp. 2d. 352, 388-89 (S.D.N.Y. 2000). See also Armstead v. Coler, 914 F.2d 1464, 1465 (11th Cir. 1990).
- 5. For a recent example, see Luiken v. Domino’s Pizza, LLC, No. 09-516 (D. Minn. June 21, 2010) (in any state except New York and California); see also the following definition of “class” in a nationwide class action attacking Nissan’s financing scheme: “[A]ll African American consumers who obtained vehicle financing from NMAC in the United States pursuant to NMAC’s ‘retail plan—without recourse’ between January 1, 1990, and the date of judgment.” Cason v. Nissan Motor Acceptance Corp., 212 F.R.D. 518, 523 (M.D. Tenn. 2002). The classic case for nationwide classes was Califano v. Yamasaki, 442 U.S. 682 (1979), which specifically approved the concept.
- 6. See Kline v. Sec. Guards Inc., 196 F.R.D. 261, 265-69 (E.D. Pa. 2000), vacated on other grounds, 386 F.3d 246 (3d Cir. 2004), for an example of plaintiffs struggling to define a class that does not require the court to reach the merits to determine whether a putative class member is covered in the class definition (plaintiffs’ class definition of “all persons whose communications were intercepted by electronic surveillance” was found unacceptable since definition would require “minihearings” on whether interceptions had occurred and whose communications were actually intercepted).
- 7. For a discussion of exhaustion of administrative remedies, see Chapter 3.4 of this MANUAL.
- 8. DL v. District of Columbia, 450 F.Supp.2d 11 (D.D.C. 2006) (class challenging municipality's failure to provide free and appropriate public education because of breach of "child find" duty need not exhaust administrative remedies); DL v. District of Columbia, 237 F.R.D. 319, 323 (D.D.C. 2006) (certifying class over exhaustion defenses). Note, however, that the grant of certification in DL was vacated on other grounds in 2013. See DL v. District of Columbia, 713 F.3d 120 (D.D.C. 2013).
- 9. Fed. R. Civ. P. 23(c)(4)(B).
- 10. See Warren v. Xerox Corporation, No. 01-CV-2909 (E.D.N.Y. Jan. 26, 2004).
- 11. Compare Federal Judicial Center, Manual for Complex Litigation (Third) § 30.1 with Federal Judicial Center, Manual for Complex Litigation (Fourth) § 21.14. For discussions that emphasize the importance of the pleadings as a basis for certification decisions, see In re Am. Med. Sys., Inc., 75 F.3d 1069, 1086 (6th Cir. 1996) (decision on certification should be deferred pending discovery if existing record inadequate for determination).
- 12. See Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982); Roe v. Operation Rescue, Inc., 123 F.R.D. 500, 502 (E.D. Pa. 1988) (denying class discovery and certifying class as court need only inquire into facts as presented in pleadings and affidavits if documents sufficiently indicate requirements met).
- 13. Gariety v. Grant Thornton, LLP, 368 F.3d 356, 365-67 (4th Cir. 2004).
- 14. See, e.g., Vinole v. Countrywide Home Loans, 571 F.3d 935, 942 (9th Cir. 2009); Mills v. Foremost Ins. Co., 511 F.3d 1300, 1309-11 (11th Cir. 2008). Consult your local rules of court, which may offer guidance or impose requirements on pre-certification discovery and the process for obtaining it.
- 15. Campbell v. A.C. Petersen Farms, Inc., 69 F.R.D. 457 (D. Conn. 1975) (employment discrimination (class discovery unnecessary when pleadings and affidavits present sufficient facts on contested numerousness issue).
- 16. 3 William Rubenstein, Alba Conte & Herbert B. Newberg, Newberg on Class Actions § 7:8 (4th ed. 2002 & June 2010 Supp.).
- 17. In re Initial Public Offering Securities Litig., 471 F.3d 24, 41 (2d Cir. 2006). For a general discussion of evidentiary hearings, see 3 Rubenstein, Conte & Newberg, supra note 16, § 7:9. See also Manual for Complex Litigation (Fourth), supra note 11, § 21.21 (evidentiary hearing “may be” but not “is” necessary in challenge to factual basis for class certification);
- 18. See, e.g., Heerwagen v. Clear Channel Commc’ns, 435 F.3d 219, 234 (2d Cir. 2006); Lienhart v. Dryvit Systems, Inc., 255 F.3d 138, 146 (4th Cir. 2001).
- 19. Manual for Complex Litigation (Fourth), supra note 11, § 21.14. See also, Fed. R. Civ. P. 23(c)(1) advisory committee’s notes, 2003 amends.
- 20. Fed. R. Civ. P. 23(c)(1) advisory committee’s notes, 2003 amends.; See, e.g., Gene & Gene LLC v. Biopay LLC, 624 F.3d 698, 703, n.3 (5th Cir. 2010); Bell v. Lockheed Martin Corp., 270 F.R.D. 186, 198-99 (D.N.J. 2010).
- 21. Manual for Complex Litigation (Fourth), supra note 11, § 21.14.
- 22. See West v. Circle K Stores, Inc., No. CIV. S-04-0438, 2006 U.S. Dist. LEXIS 25164, at *2; 2006 WL 1652598 (E.D. Cal. Feb. 14, 2006) (pre-certification discovery may be limited to particular subclass); Transamerican Ref. Corp. v. Dravo Corp., 139 F.R.D. 619, 621-22 (S.D. Tex. 1991) (limiting discovery to fifty of 6,000 absent class members).
- 23. Manual for Complex Litigation (Fourth), supra note 11, § 21.14.
- 24. See, e.g., Dellums v. Powell, 566 F.2d 167, 187 (D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978); Barham v. Ramsey, 246 F.R.D. 60 (D.D.C. 2007); Bell v. Woodward Governor Co., No. 03 CIV. S-04-0438, 2005 U.S. Dist. LEXIS 26757; 2005 WL 3299179 (N.D. Ill. Nov. 7, 2005); Mehl v. Canadian Pac. Ry., 216 F.R.D. 627, 631 (D.N.D. 2003).
- 25. 7B Charles A. Wright et al., Federal Practice and Procedure (3d ed. 2005 & Supp. 2010) § 1796.1, at 57; In re Carbon Dioxide Industry Antitrust Litig.,155 F.R.D. 209 (M.D. Fla. 1993).
- 26. See, e.g., Sibley v. Sprint Nextel Corporation, No. 08-2063 (D. Kan. Oct. 6, 2009); Schwartz v. Celestial Seasonings Inc., 185 F.R.D. 313 (D. Colo. 1999) (allowing discovery of absent class members in form of clear, good-faith questionnaire relating to damages and alleged reliance); Transamerican Refining Corp. v. Dravo Corp., 139 F.R.D. 619 (S. D. Tex 1991) (discovery by interrogatories and request for documents generally allowed when relevant to common questions, posed in good faith, not unduly burdensome, and information not available to class representatives).
- 27. See Boynton v. Headwaters, Inc., 2009 U.S. Dist. LEXIS 94949, at *3–4, 2009 WL 3103161, at *1 (W.D. Tenn. Jan. 30, 2009); Collins v. Int’l Dairy Queen, 190 F.R.D. 629, 630-31 (M.D. Ga. 1999) (citing Clark v. Universal Builders, 501 F.2d 324 (7th Cir. 1974)).
- 28. Sibley, 2009 U.S. Dist. LEXIS at *6–7, 2009 WL 3244696 at *2; McCarthy v. Paine Webber Group, Inc., 164 F.R.D. 309, 313 (D. Conn. 1995); See also Cox v. Am. Cast Iron Pipe Co., 784 F.2d 1546 (11th Cir. 1986) (requiring special circumstances and good cause be shown).
- 29. Ferraro v. General Motors Corp., 105 F.R.D. 429, 432 (D.N.J. 1984).
- 30. See Brink v. First Credit Res., 185 F.R.D. 567, 571 (D. Ariz. 1999) (plaintiff’s financial commitment sufficient where he avers his willingness to pay his pro rata share of litigation expenses); Waldman v. Electrospace Corp., 68 F.R.D. 281 (S.D.N.Y. 1975); 7A Wright et al., supra note 25, § 1767, at 381-88.
- 31. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 356 (1978). See also Sollenbarger v. Mountain State Tel. and Tel. Co., 121 F.R.D. 417 (D.N.M. 1988) (where cost of alternative method “drastic,” plaintiffs could notify potential class members via insert in monthly bills sent by defendant).
- 32. See, e.g., Randleman v. Fidelity National Title Insurance Company, 646 F.3d 347 (6th Cir. 2011); Manual for Complex Litigation (Fourth), supra note 11, § 21.141.
- 33. See, e.g., Connor v. Perdue Farms, Inc., No. 11-888, 2013 WL 5977361 (D.N.J. Nov. 7, 2013) (granting motion to bifurcate as consistent with fairness, efficiency, and economy); In re SemGroup Energy Partners, L.P., Securities Litigation, No. 08-MD-1989 (N.D. Okla. Dec. 21, 2010) (denying motion to bifurcate class and merit discovery because facts and issues were inextricably intertwined); In re Hamilton Bancorp, Inc. Securities Litigation, No. 01CV0156 (S.D. Fla. Jan. 14, 2002) (directing development of discovery plan that prioritizes class-related discovery but does not deprive parties of merits discovery).
- 34. See Connor, No. 11-888, 2013 WL 5977361; SemGroup Energy Partners, L.P., Securities Litigation, No. 08-MD-1989.