7.3 Defining and Managing a Class (part two)

Updated 2017 by Sarah Somers

7.3.D. Moving for Class Certification

Rule 23(c)(1) now requires that the court rule on class certification “ at an early practicable time.”1 Many local rules set specific time limits, generally ninety days from the filing of the complaint, for the filing of the motion.2 Other local rules have shorter3 or longer4 time frames. Whatever the local rule provides, counsel should consider filing the motion for class certification at the time of filing the complaint.5 Failure to file a timely motion for class certification can result in the striking of the class claims or the denial of the motion for lack of adequate representation.6 If there is a need for a clear deadline for filing and discovery, plaintiffs should seek a stipulation or file a motion to be allowed to file the class certification motion after completion of class discovery.

If plaintiffs, pursuant to Rule 65, move for preliminary relief on behalf of the class, filing the motion for class certification with or before the motion is appropriate. If mootness is a potential problem, a motion for class certification should be filed quickly.7 Generally, once a class is certified, certification “relates back” to the date of filing of the complaint; post-filing mootness is immaterial so long as mootness occurred after certification. An exception to the “relates-back” rule is made, however, if class certification cannot reasonably be decided before the class representatives’ claims become moot because of the transitory nature of the claims.8 Plaintiffs should nevertheless file for certification quickly and urge expedited action on the motion if necessary.9

The motion for class certification should set forth briefly how the named representative or class or both meet each requirement of Rule 23 and the specific class definition requested by plaintiffs.10 Merely reciting Rule 23 boilerplate language without relating each requirement to the particular class action is not useful. Any documents necessary to prove the Rule 23 requirements should be filed with the motion.11 These may include documents collected during discovery if class discovery is completed. If discovery is not completed, the motion should discuss the discovery requested. Consideration should also be given to filing motions to shorten discovery in order to move the class certification issue forward.

Prior to the 2003 amendments to Rule 23, courts were permitted to conditionally certify a class pursuant to Federal Rule of Civil Procedure 23(c)(1) and to reserve the opportunity to reexamine the certification following more extensive discovery.12 Conditional certification has now been removed from Rule 23(c)(1).13   Nonetheless, one circuit court has found that conditional certification still may be appropriate.14

7.3.E. Interlocutory Appellate Review of Denial or Grant of Certification

Rule 23(f) now permits a circuit court, in its discretion, to permit an interlocutory appeal of an order granting or denying class certification. A petition to file permission to appeal must be filed within 14 days.15 The courts caution, however, that granting these types of appeals should not become routine.16 Courts describe the relevant considerations as: (1) whether the district court’s ruling is likely to be dispositive of the litigation by creating a “death knell” for either party; (2) whether the party seeking review shows a substantial weakness in the certification decision such that the decision would likely constitute an abuse of discretion; (3) whether the appeal would permit the resolution of an unsettled legal issue important to the case and important in and of itself, particularly if it involves Rule 23 jurisprudence; (4) whether the court should consider the nature and status of the litigation before the district court; and (5) whether future events may make interlocutory appeal more or less appropriate.17

7.3.F. Notice of Class Certification

Once the class has been certified, counsel must decide whether notice of class certification is required, what kind of notice is required and whether notice of opt-out rights is required for their particular class action. Rule 23(c)(2) sets forth the notice requirements in class action suits. Notice requirements for class actions brought under 23(b)(1) and (2) are flexible and do not require individual notice while individual notice is required in Rule 23(b)(3) suits. Notice of opt-out rights is required in Rule 23(b)(3) cases. The court has discretion under Rule 23(d)(1)(B) to order notice at any time in any Rule 23 lawsuit for the protection of the class members or the fair conduct of the lawsuit.

Rule 23(c)(2)(A) simply provides that in class actions brought under Rule 23(b)(1) or (b)(2), “the court may direct appropriate notice to the class.” Notice is not required either before or after certification, or, indeed, at all.18 Because there is no right to opt out of a Rule 23(b)(1) or 23(b)(2) class, the need for notice is diminished and should be "exercised with care."19 Unlike suits brought under Rule 23(b)(3), if notice is required, it need not be individual.20 This flexible approach recognizes that the cost of notice may “prove crippling and the benefits may be relatively small.”21

However, notice to all class members of the pendency of the action before certification or judgment is frequently helpful, for a number of reasons. It may be helpful in locating additional witnesses or obtaining other evidence from class members. Early notice may expose potential conflicts among class members. Locating and notifying as many class members as possible also preserves plaintiffs’ ability to locate the class and administer relief after judgment. If the court is not inclined to order individualized notice, use discovery to obtain lists of class members and consider hiring an outside firm to find last known addresses. This approach may avoid the problem of some class members not receiving the relief to which they are entitled because they cannot be located after many years of litigation.

The 2003 Amendments continue the requirement that individual notice to class members in Rule 23(b)(3) cases must be provided after the class is certified and before judgment. However, it added a requirement that the notice “must concisely and clearly state in plain, easily understood language” information about the nature of the action, the class definition, the claims, issues or defenses, the right to enter an appearance through counsel, the right to opt-out, and the binding effect of the judgment.22

A court has discretion to order the defendant to cover the expense of developing the list of class members in certain circumstances.23 Also, a court may order defendants to give the notice when they may do so with less difficulty or expense than the representative plaintiffs, or when liability has been established.24 Notice may also be ordered after the class is certified and before judgment.25

Regardless of whether the class action is certified under subdivision (b)(1) or (b)(2), or (b)(3) notice after a judgment in favor of the plaintiffs or after settlement may be very helpful depending on the type of case. If the relief requires the defendant to do something retroactively the class members need to know of their entitlement. Further, even in prospective relief cases the class members may need to know of their right, for example, to apply or reapply for benefits. Without notice, class members are unaware of either the prospective change in their legal status or their right to relief. Notice should inform the class members of the legal ruling, the effect of the ruling both prospectively and retrospectively, the mechanism for obtaining retroactive monetary relief if available (with a form to begin the process, if appropriate), the names and addresses of counsel for the plaintiffs, and a phone contact to ask questions or to report problems in obtaining relief. 

Unlike the cost of pre-certification notice, the cost of post-judgment notice is properly borne by the defendant. Indeed, courts have ordered defendants to bear the costs of notice once it has ruled against the defendant on the merits.26 Whether class notice is required under Rule 23(c)(2) or is requested under Rule 23(d)(1), the prayer for relief in the complaint should include a request for notice of the relief. Likewise, at the time of judgment or settlement, plaintiffs should include a request for notice in the proposed order or settlement document, attach a copy of the actual proposed notice, and detail the proposed or agreed-upon method of distribution.

Notices sent to class members should be drafted in plain English and translated if appropriate.27 Individual notification of class members may not be required. Other forms of notice may be utilized such as publication in newspapers, posting on bulletin boards where class members are likely to see the notice (unemployment offices, public housing offices, nurses’ stations), inclusion in regular newsletters, and the like—depending on the circumstances of the case.28

Plaintiffs’ counsel should try to obtain the most current addresses possible for all class members. Sometimes this can be done through the defendant’s files. Posting of notices in places where class members are likely to see them or placement of notices in newspapers commonly read by class members may assist counsel in identifying additional class members. Plaintiffs cannot reach every class member, however, but should nevertheless make every effort to locate members and to obtain full relief for each of them. Responding to questions from class members and assisting them in obtaining relief, even when only a small percentage responds, is frequently a major commitment of time and resources by an office and must be carefully orchestrated.

7.3.G. Communication with Class Members

Class counsel frequently wants to communicate informally with potential class members. The question of whether plaintiffs’ counsel or defendant’s counsel can have access to information identifying class members or communicate with them during litigation arises regularly.

In Gulf Oil v. Bernard, the Supreme Court prohibited limits on communications without a clear record and specific findings reflecting that the need for limits outweighed the interference with the rights of the parties.29 Even in those circumstances justifying a limitation, the Court stated that any court intervention should be carefully and narrowly drawn to minimize interference with First Amendment rights.

Since Gulf Oil, courts generally have not imposed case-specific limitations on communications between plaintiffs’ counsel and class members. Absent a record of coercive or misleading communications, there would seem to be no basis for restraining communications. Courts, however, have intervened when defendants urged class members to “opt out” of the class action or were making factual misrepresentations to the plaintiff class members.30



Updated 2017 by Sarah Somers