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47 F.R.D. 169
Federal Rules Decisions
1969, 1970
CLASS ACTIONS 1
Charles Alan Wright a1
Copyright 1969, 1970 West Group
The class action was an invention of equity *** mothered by the practical necessity of providing a procedural device so that
mere numbers would not disable large groups of individuals, united in interest, from enforcing their equitable rights nor grant
them immunity from their equitable wrongs. *** By Rule 23 the Supreme Court has extended the use of the class action device
to the entire field of federal civil litigation by making it applicable to all civil actions. 2 It provides a means by which, where a
large group of persons are interested in a matter, one or more may sue or be sued as representatives of the class without needing
to join every member of the class. This procedure should be available in federal court, even in diversity actions in states that
do not recognize the class suit, though the state law will define the substantive interest of the members of the class and the
capacity to sue or be sued of the named representatives. 3
*170 Potentially class actions could serve an important function in our judicial system. By establishing a technique whereby
the claims of many individuals can be resolved at the same time, the class suit both eliminates the possibility of repetitious
litigation and provides small claimants with a method of obtaining redress for claims which would otherwise be too small
to warrant individual litigation. 4 Thus effective use of the class action device could serve the interests both of judicial
administration and of justice. Whether it will work out this way remains a matter on which judgment must be reserved.
As originally adopted in 1938, Rule 23 made a bold and well-intentioned attempt to encourage more frequent use of class
actions. The rule made this procedure available in actions for legal relief as well as in those that were historically equitable,
and it sought to give guidance on the kind of cases for which class treatment was appropriate. But, as has often been pointed
out, 5 and as will be referred to more specifically later in this section, a quarter century of experience demonstrated very serious
defects in the original rule. Accordingly in 1966 the rule was extensively amended. The amended rule, like the companion
amendments that year to Rules 19 and 24, sought to substitute functional tests for the conceptualisms of the old rule. In addition,
it sought to provide better guidance on the measures that may be taken by the court in managing the class action. Unfortunately
the new rule, though generously described as complicated, 6 still tends to ask more questions than it answers. 7
*171 And the Supreme Court, which had given such a hospitable reading to the 1966 amendment of Rule 19, 8 has considerably
lessened the usefulness of amended Rule 23 by its decision in Snyder v. Harris, 9 in which it held that the old conceptualisms that
it was sought to discard are still controlling in class actions in determining the amount in controversy. Finally the amended rule
is in jeopardy from those who embrace it too enthusiastically just as it is from those who approach it with distaste. Admonitions
that the amended rule should be given a liberal rather than a restrictive interpretation 10 and that if there is to be an error
made, let it be in favor and not against the maintenance of the class action 11 convey a receptive spirit. But if they encourage
courts to allow maintenance of class actions in controversies that are unmanageable by this device, 12 the rule may come into

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CLASS ACTIONS, 47 F.R.D. 169

disrepute even for the cases to which it is well suited. It may well be that it will take a generation or so before we can fully
appreciate the scope, the virtues, and the vices of the new Rule 23. 13 Certainly the jury is not yet in.
There are two general requirements for the maintenance of a class suit. Amended Rule 23(a) states them in slightly different
form than the old rule did, 14 but it made no change in their substance, and pre-1966 decisions on the meaning of these general
*172 requirements should still be authoritative. 15 These two requirements are that the persons constituting the class must
be so numerous that it is impracticable to bring them all before the court, and the named representatives must be such as will
fairly insure the adequate representation of them all.
For the class to be large enough to permit a class suit, impossibility of joinder is not required. Extreme difficulty or
impracticability of joinder is sufficient. 16 One court has referred to the numbers game aspect of Rule 23, 17 but it is clear
that no numerical test is possible. Groups of as many as 39 have been held too small for a class action, 18 while groups of 40
or more have been held sufficient, 19 but this does not mean that such results should always be reached. The requirement of a
numerous class is intended to protect members of a small class from being deprived of their rights without a day in court, 20
and in a particular case this object should be weighed in the light of the situation that exists. 21
Adequacy of representation is essential. The representative must not hold interests that conflict with those of the class he seeks to
represent. 22 The adequacy of representation should be scrutinized with particular care where suit is brought, as the rule *173
has always permitted, 23 against a class of defendants. Plaintiffs must not be allowed to succumb to the temptation to name
as representatives of the defendant class persons whose defense will be less than zealous. 24 It seems fairly obvious that the
members of a class cannot be adequately represented if their interests are in conflict, but the application of this principle leads
to considerable difficulty. In the leading case of Hansberry v. Lee, 25 involving the validity of a class action testing whether a
restrictive agreement had been adopted by a group of landowners, it was held that landowners who sought to secure the benefits
of the agreement could not be regarded as members of the same class as those who wished to challenge the agreement. In the
course of the opinion Chief Justice Stone wrote, for the Court: It is one thing to say that some members of a class may represent
other members in a litigation where the sole and common interest of the class in the litigation, is either to assert a common
right or to challenge an asserted obligation. *** It is quite another to hold that all those who are free alternatively either to
assert rights or to challenge them are of a single class, so that any group merely because it is of the class so constituted, may be
deemed adequately to represent any others of the class in litigating their interests in either alternative. 26
There were excellent reasons for deciding Hansberry v. Lee as the Court did. The action that was claimed to bind all members
of the class was a collusive action in which the crucial fact was established by a false stipulation. 27 The language of the Court,
*174 however, seems unduly broad. In any conceivable case, some of the members of the class will wish to assert their rights
while others will not wish to do so. Thus the familiar case of the stockholders' derivative suit is almost invariably brought
by minority stockholders to challenge action that a majority of the stockholders approve. Yet it is routinely regarded as an
appropriate class suit. 28 Another familiar class suit is that in which one or more taxpayers of a community, suing on behalf of
all, challenge the validity of a proposed public expenditure. It is difficult to believe that there has ever been such a case in which
a good many of the taxpayers would not have preferred that their rights not be enforced, because of their interest in having the
expenditure made. Yet no one has ever doubted the propriety of bringing such a suit as a class action. 29

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CLASS ACTIONS, 47 F.R.D. 169

It has frequently been said that a sufficient number of members of the class must appear as parties to insure a fair representation
of the class, 30 but it has increasingly come to be recognized that the quality of the representation is more important than
numbers, and that even a single representative of the class may be enough. 31
*175 If the requirements of a sufficiently large class and adequate representation are met, it is still necessary to decide whether
the action falls into one of the categories for which a class suit is permissible. The original rule permitted three kinds of class
suits, popularly known as true, hybrid, and spurious. The rule was cast in terms of jural relations, with a particular suit
falling in one class or another according to the character of the right sought to be enforced for or against the class. 32 Thus
a true class action was permitted if the right involved was joint, or common or secondary in the sense that the owner of a
primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it. Where the right
involved was several but the object of the action was adjudication of claims that did or might affect specific property involved
in the action, the label hybrid was applied. Finally an action to enforce several rights, where there was a common question
of law or fact affecting such rights and common relief was sought was a spurious class action. 33
The spurious class action was a particularly puzzling creation. In any case in which such an action could have been brought
under the former rule, it would have been possible to join all the parties under Rule 20(a). Thus it was said that the spurious
action was only a permissive joinder device, 34 though if this were true it duplicated Rule 20(a). 35 It was usually thought not
to have any binding effect on those who were not named as parties, 36 *176 even though a non-binding class suit seems to
involve a contradiction in terms. If the judgment were effective only with regard to the named parties, it was mere surplusage
to say in the pleadings that others similarly situated were involved.
Under the old rule the limited effect given the judgment in the spurious action was in contrast to a true class suit, in which all
the members of the class were bound, and the hybrid class suit, where the members of the class were bound only as to rights,
if any, in the property involved. But this was not the only respect in which important consequences turned on the label applied
to the class suit. Such matters as jurisdiction, venue, intervention, and tolling of the statute of limitations were all thought to
vary depending on which kind of class suit was involved.
This was the most serious defect in the old rule, and was of much more consequence than the anomaly of a class suit that did not
bind the class. If matters of importance turn on the classification given a particular suit, then it is vital that it be clearly understood
which classification applies. The fact was that the task of determining which label was appropriate for a particular suit baffled
both courts and commentators. 37 The terms joint, common, and several had little or no clear and ascertainable meaning
in or out of the context of class actions, 38 and most persons who had to work with them shared the frustration of Professor
Chafee who confessed that he was having as much trouble telling a common right from a several one as in deciding whether
some ties were green or blue. 39 Cases challenging racial discrimination provided a particularly striking example. Some courts
thought this a true class action, others called it spurious, while most simply said that it was a permissible *177 class action
and avoided the unrewarding task of further identification. 40
The principal reason for rewriting Rule 23 in 1966 was to get away from the conceptually-defined categories of the old rule.
The new rule does describe categories of cases that may be appropriate for class treatment, and procedural consequences may
depend on which category is involved, but the new categories are described functionally rather than conceptually. Inevitably
there is some overlap among the categories. 41 Because there are three categories in the new rule, just as there were in the old,
there has been some tendency to suppose that the old names, true, hybrid, and spurious, may still be used, though with
their definitions in the rule altered. 42 This is not only wrong but dangerously wrong. Nothing in the new rule corresponds
to the former spurious class action, since it is expected that the judgment in a class action under the new rule will bind all

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CLASS ACTIONS, 47 F.R.D. 169

members of the class, except those who have been expressly excluded. Nor do any of the clauses of new Rule 23(b) correspond
with the old true or hybrid class actions. The new rule must be approached on its own pragmatic terms, rather than with
preconceptions derived from the old conceptual categories. 43
Rule 23(b)(1) permits a class action where this is necessary to avoid possible adverse effects on the opponents of the class or on
absent members of the class. The party opposing the class would be prejudiced if inconsistent results in individual adjudications
establish incompatible standards of conduct to which he must adhere, as in a suit by taxpayers to invalidate municipal *178
action or in a suit involving the rights and duties of riparian owners. 44 Individual members of the class would be prejudiced
if adjudications in individual actions would as a practical matter impair their ability to protect their interests, as in a suit to
compel reorganization of a fraternal association or a suit by stockholders to compel declaration of a dividend. 45
Rule 23(b)(2) permits a class action where the party opposing the class has acted or refused to act on grounds generally applicable
to the class. It is intended primarily for civil rights cases, though there may well be other kinds of cases that will fall within
it. 46 It is expressly limited to cases in which final injunctive relief or corresponding declaratory relief with respect to the class
as a whole will be appropriate, and thus deliberately excludes actions for damages, 47 in which it might otherwise be asserted
that a party's denial of fault, and refusal to pay claims against it, was a refusal to act on a ground generally applicable to a class.
The most complicated and controversial portion of the 1966 revision is Rule 23(b)(3). This authorizes a class action where
the only justification for such a procedure is the presence of common questions of law or fact. Though this bears a superficial
resemblance to the old spurious action, the spurious action was not really a class action at all while a suit under (b)(3) is a
class action in all respects. The court has discretion whether to allow a (b)(3) action. Before permitting it to be maintained the
court must find that the questions of law or fact common to the members of the class predominate over any questions affecting
only individual members, 48 and that a class action is superior to other available methods for the fair and efficient adjudication
of the controversy. 49 The rule itself lists four factors that the *179 court is to consider, among others, in determining whether
a class action is superior to other methods. 50
Predictions that not very many actions would be allowed to proceed under (b)(3) 51 have proved quite ill-founded. The great
bulk of reported cases in which class actions have been allowed under the revised rule have been (b)(3) actions. This device has
been especially useful in cases involving securities frauds, where individual investors allegedly injured are in a poor position to
seek redress, either because they do not know enough or because the cost of suit is disproportionate to each individual claim. 52
In drafting the amended rule the Advisory Committee observed that a class action is ordinarily not appropriate in cases of
mass tort, because of the likelihood that significant questions of damages, liability, and defenses to liability would affect the
individuals in different ways. 53 There has been no sign to date that class actions are being attempted in mass tort cases, although
the need for more efficient methods of disposing of large numbers of cases arising out of a single disaster has a high priority
in improving judicial administration.
If the court permits a (b)(3) class action to be maintained, it must direct to the members of the class the best notice practicable
under the circumstances, including individual notice to all members who can be identified through reasonable effort. 54 This
notice is crucial to the whole scheme of (b)(3). Arguably notice is not constitutionally compelled as a condition to binding
absentees. 55 In the leading case of Hansberry v. Lee, the Supreme *180 Court said that a judgment in a class action will
bind absentees whenever the procedure adopted fairly insures the protection of the absent parties who are to be bound by
it, 56 and that even where the only circumstance defining the class is a common issue of fact or law, as in the (b)(3) action,
the judgment might be made binding on all members of the class provided that the procedure were so devised and applied

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CLASS ACTIONS, 47 F.R.D. 169

as to insure that those present are of the same class as those absent and that the litigation is so conducted as to insure the full
and fair consideration of the common issue. 57 Nevertheless it is clear that effective notice greatly strengthens the argument
that the absentee is bound.
The requirement of notice has been troublesome in the early cases under the amended rule. Courts, perhaps responding to
different factual situations, have variously permitted notice by publication 58 or required individual notice 59 or suggested a
combination of both. 60 It is not yet settled-and indeed it may be there should not be one single rule-whether notice is to come
from the court, 61 from the representatives of the class, 62 or perhaps even from the party opposing the class. 63
The notice to the absentee in a (b)(3) action advises him of his rights in the action, including the right if he wishes to appear
through his counsel, that he will be excluded from the class if *181 he so requests by a date and procedure specified in the
notice, and that the judgment will include him if he has not requested exclusion.
Critical to the entire operation of the revised rule is the effect of the judgment. It is clearly contemplated that every judgment in
every class action will bind all of the members of the class, except for those who have asked to be excluded in a (b)(3) action. 64
The rule does not say this. It says only that the judgment shall include and describe those whom the court finds to be members
of the class, and who have not asked to be excluded from a (b)(3) action. 65 This recognizes that a court conducting an action
cannot predetermine its res judicata effect, and that this can be tested only in a subsequent action. 66 It recognizes, too, that
even a party named in the judgment will not be bound if he has been denied due process of law. But the rule is intended to
provide due process to absentees and it plainly contemplates that they will be bound.
The absentee has an absolute right to be excluded from a (b)(3) action. If he does, and the judgment ultimately is favorable to the
class, he should not be entitled to rely on it as collateral estoppel, in those jurisdictions that have departed from the requirement
of mutuality for estoppel. To permit him to do this would make a mockery of the (b)(3) procedure, and would restore in a
different form the one way intervention that the amended rule was expressly intended to preclude. 67 Notions of collateral
estoppel are not so inexorable that a party who has affirmatively obtained exclusion from a judgment need be allowed later to
claim the benefits of the judgment. 68
The court is required to make a determination as early as is practicable whether the action can be maintained as a class action.
This is especially important with (b)(3) actions but it is *182 required for all. 69 This is a tentative determination, and may
be altered later if events indicate that this would be wise. 70 Until the court has ruled that an action cannot continue as a class
action, it must be regarded as a class action if the pleadings so provide, and the procedural provisions applicable to class actions,
including notably the rule that a class action cannot be dismissed or compromised without the approval of the court, 71 are
controlling. 72
It has long been the rule that in a class action only the citizenship of the named representatives is to be considered, and that
it is no objection to jurisdiction that other members of the class, not named as parties, are of such citizenship as would defeat
diversity. 73 Although doubt has been expressed on this point, 74 this ought to continue to be held under the amended rule. It
is true that (b)(3) now permits persons to be bound by a judgment though they are linked only by common questions of law
and fact. Nevertheless (b)(3), and perhaps the whole rule, would be totally unworkable in a diversity case if the citizenship
of all members of the class, many of them unknown, had to be considered. The considerations of procedural convenience and
economy that have led to robust use of ancillary jurisdiction with regard to other procedural innovations 75 should suffice
here. 76 Similarly for purposes of venue only the residence of the named parties should be considered. 77

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Amount in controversy is a different matter, because of the decision of the Supreme Court in Snyder v. Harris. 78 For more
than a half century the rule generally has been that parties jointly or commonly interested may aggregate their claims but that
this *183 is not permitted if their claims are several and distinct. 79 This rule had been thought controlling in class actions. 80
Accordingly prior to 1966 the accepted learning was that the amount in controversy was measured by the claims of the entire
class in a true class action, since the rights involved were, by terms of the rule, joint or common, but that in a hybrid
or spurious class action, involving, by hypothesis, several rights, each named party must have the requisite amount in
controversy. 81
There was reason to hope that these restrictions would not be applied to the amended rule. 82 Since the entire class is now
to be bound by the judgment, and the result cannot vary from one member of the class to another, realistically the amount in
controversy is the amount sought on behalf of the entire class. To permit aggregation in these circumstances would have been
entirely consonant with the stated purpose of the amount in controversy requirement, to avoid having the federal courts fritter
away their time in the trial of petty controversies. 83 The Supreme Court, however, has held to the contrary, and has refused
to permit aggregation where several rights are involved. This means that the old conceptual tests of joint, common,
and several, deliberately discarded in the new rule in favor of more functional and more meaningful provisions, continue to
control in determining whether jurisdiction exists.
The Snyder decision should pose no problems in (b)(2) class actions, at least so long as those actions are to redress racial
discrimination, since that kind of action can be brought without regard to amount in controversy. 84 In most (b)(1) actions
aggregation is apparently permissible, but the (b)(1) action is not coextensive with the former true class action, and it cannot
automatically be assumed that aggregation is always permissible. It will be necessary in those cases to determine whether
the right involved is joint or common on the one hand, or several on *184 the other, no matter how meaningless and
arbitrary such a distinction may seem.
In a (b)(3) action it appears that the right being enforced must always be labelled several, and thus the Snyder decision
precludes aggregation. This will not affect the securities fraud cases or other federal question cases in which no amount in
controversy is required. 85 The Snyder case certainly precludes use of the (b)(3) class action in diversity cases in which no
member of the class has a claim in excess of $10,000. There are indications that it also means that that device cannot be used
in diversity cases save for the extraordinary situation in which every member of the class has a claim in excess of $10,000, 86
though this is not an inevitable conclusion and it would aggravate the damaging effect the Snyder decision has had on the
attempt to modernize the law of class actions. It seems unlikely that the Court will overrule Snyder. It would be highly desirable
if Congress were to amend 28 U.S.C.A. 1332 to provide that in any case permitted to be maintained as a class action under
the Federal Rules of Civil Procedure, the aggregate claims for or against all members of the class shall be regarded as the
matter in controversy.
There should be no problem with regard to the statute of limitations under the amended rule. Since the judgment is now binding
in all class actions, commencement of the action should toll the statute of limitations for all members of the class. 87 This
result should be reached even if the court, for reasons of judicial housekeeping, ultimately holds that it will not allow the suit to
proceed as a class action, since otherwise members of the class *185 would have to file a protective individual suit pending
that determination. 88
Because of the representative nature of a class action, the court has more control over it than over ordinary actions, and must
assume a more active role than it normally does. 89 Rule 23(d), added in 1966, spells out in some detail the flexible powers

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CLASS ACTIONS, 47 F.R.D. 169

the court has over the conduct of the action. 90 If the suit results in a recovery beneficial to the class, the court may award an
attorneys' fee to the attorneys for the representatives out of the sum recovered. 91
Until 1966 actions involving unincorporated associations were often brought under the general rule applicable to all class
actions, in situations in which the association could not be treated as an entity under Rule 17(b). 92 In 1966 a new Rule 23.2
was adopted, permitting suit by or against the members of an unincorporated association as a class only if it appears that the
members named as representatives will fairly and adequately protect the interests of the association and its members. Rule 23(d),
listing orders the court may make in the conduct of a class action, is specifically incorporated by reference for unincorporated
association actions, as is Rule 23(e), requiring approval of the court, after notice, for the dismissal or compromise of any class
action. The explicit incorporation by reference of two subdivisions of Rule 23 suggests that the other parts of Rule 23, including
notably the limitations in subdivisions (a) and (b) on when a class action may be maintained, do not apply to actions relating
to unincorporated associations, but the committee note is wholly silent on this question. 93

Footnotes
a1
Charles Alan Wright, McCormick Professor of Law at The University of Texas Law School, is one of the authors of the recentlypublished new treatise on Federal Practice and Procedure based on the Federal Rules of Criminal, Civil and Appellate Procedure.
This discussion by Professor Wright of class actions under Federal Rule 23 as amended in 1966 will appear as section 72 of the
forthcoming second edition of his Handbook of the Law of Federal Courts. Professor Wright has been since 1964 a member of the
Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States. Prior to that time he was a
member of the Advisory Committee on Civil Rules. He is a member of the Council of the American Law Institute and was Reporter
for the Institute's Study of Division of Jurisdiction between State and Federal Courts.

2 Barron & Holtzoff (Wright ed.), 561-563, 567-572; Frankel, Some Preliminary Observations Concerning Civil Rule 23, 1967,
43 F.R.D. 39: Symposium, Federal Rule 23-The Class Action, 1969, 10 B.C.Ind. & Com.L.Rev. 497; Note, Revised Federal Rule
23, Class Actions: Surviving Difficulties and New Problems Require Further Amendment, 1967, 52 Minn.L.Rev. 509.

Montgomery Ward & Co. v. Langer, C.C.A.8th, 1948, 168 F.2d 182, 187.

Edgerton v. Armour & Co., D.C.Cal.1950, 94 F.Supp. 549; cf. Hanna v. Plumer, 1965, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8,
discussed 59 above. Compare Oskoian v. Canuel, C.A.1st, 1959, 269 F.2d 311, with Underwood v. Maloney, C.A.3d, 1958, 256
F.2d 334, certiorari denied 358 U.S. 864, 79 S.Ct. 93, 3 L.Ed.2d 97. The last two cases are discussed, and distinguished, at 2 Barron
& Holtzoff (Wright ed.), 561, pp. 258-259.

Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 560. See also Ford, Federal Rule 23: A Device for Aiding the Small
Claimant, 1969, 10 B.C.Ind. & Com.L.Rev. 501.

2 Barron & Holtzoff (Wright ed.), 572; Chafee, Some Problems of Equity, 1950, pp. 199-295; Advisory Committee Note to 1966
Amendment, 1966, 39 F.R.D. 98-99; Kalven & Rosenfield, The Contemporary Function of the Class Suit, 1941, 8 U.Chi.L.Rev. 684;
Keeffe, Levy, & Donovan, Lee Defeats Ben Hur, 1948, 33 Corn.L.Q. 327; Weinstein, Revision of Procedure: Some Problems in
Class Actions, 1960, 9 Buffalo L.Rev. 433; Simeone, Procedure Problems of Class Suits, 1962, 60 Mich.L.Rev. 905.

Note, Revised Federal Rule 23, Class Actions: Surviving Difficulties and New Problems Require Further Amendment, 1967, 52
Minn.L.Rev. 509. The present author, less generously, has referred to the amended rule as extremely complicated. Wright, Recent
Changes in the Federal Rules of Procedure, 1966, 42 F.R.D. 552, 563.

Frankel, Some Preliminary Observations Concerning Civil Rule 23, 1967, 43 F.R.D. 39. In a letter to the author, the draftsman of
the rule, Professor Benjamin Kaplan, suggests that a rule that came out looking smoother would simply have remitted a series of

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CLASS ACTIONS, 47 F.R.D. 169

problems to the courts with fewer guides; and that the purpose of procedural rules of this order of difficulty must be precisely that
of asking questions-I mean the right ones.

Provident Tradesmens Bank & Trust Co. v. Patterson, 1968, 390 U.S. 102, 88 S.Ct. 733, 19 L.Ed.2d 936. See Wright, Federal Courts,
70.

1969, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319.

10

Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 563.

11

Esplin v. Hirschi, C.A.10th, 1968, 402 F.2d 94, 99.

12

See the dissenting opinion in Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 570-572.

13

Frankel, Some Preliminary Observations Concerning Civil Rule 23, 1967, 43 F.R.D. 39, 52, quoting Professor Benjamin Kaplan.

14

The requirement in Rule 23(a)(2) that there must be questions of law or fact common to the class will always be met when the further
tests of Rule 23(b) are satisfied. The requirement in Rule 23(a)(3) that the claims or defenses of the representatives must be typical
of those of the class is probably no more than a cryptic way of saying that the representative must not have interests that conflict with
those he purports to represent. Mersay v. First Republic Corp. of America, D.C.N.Y.1968, 43 F.R.D. 465, 468. That requirement,
certainly applicable under both the old and new rule, is here considered an aspect of the adequacy of representation. See generally
Donelan, Prerequisites to a Class Action under New Rule 23, 1969, 10 B.C.Ind. & Com.L.Rev. 527.

15

Demarco v. Edens, C.A.2d, 1968, 390 F.2d 836, 845; Lucas v. Seagrave Corp., D.C.Minn.1967, 277 F.Supp. 338, 347. Under the old
rule courts considered that adequacy of representation was less important in the spurious class action since it supposedly bound
no one except the named parties. The new rule does not provide for a non-binding class action, and adequacy of representation will
therefore always be of importance. Hohmann v. Packard Instrument, D.C.Ill.1967, 43 F.R.D. 192, 196-197.

16

Harris v. Palm Springs Alpine Estates, Inc., C.A.9th. 1964, 329 F.2d 909, 913-914; Goldstein v. North Jersey Trust Co.,
D.C.N.Y.1966, 39 F.R.D. 363.

17

Phillips v. Sherman, D.C.N.Y.1961, 197 F.Supp. 866, 869.

18

Atwood v. National Bank of Lima, C.C.A.6th, 1940, 115 F.2d 861. But a class of 18 was held sufficient in Cypress v. Newport News
Gen. & Nonsectarian Hosp. Ass'n, C.A.4th, 1967, 375 F.2d 648, 653.

19

Citizens Banking Co. v. Monticello State Bank, C.C.A.8th, 1944, 143 F.2d 261. For other cases ruling whether a particular class was
large enough, see 2 Barron & Holtzoff (Wright ed.), 562.4 nn. 60, 60.1.

20

Matthies v. Seymour Mfg. Co., C.A.2d, 1959, 270 F.2d 365, certiorari denied 361 U.S. 962, 80 S.Ct. 591, 4 L.Ed.2d 544, noted
1960, 69 Yale L.J. 816.

21

Demarco v. Edens, C.A.2d, 1968, 390 F.2d 836, 845; Rank v. Krug, D.C.Cal.1950, 90 F.Supp. 773, 804-805.

22

Anderson v. Moorer, C.A.5th, 1967, 372 F.2d 747; Troup v. McCart, C.A.5th, 1956, 238 F.2d 289; Redmond v. Commerce Trust
Co., C.C.A.8 th, 1944, 144 F.2d 140, certiorari denied 323 U.S. 776, 65 S.Ct. 187, 89 L.Ed. 620; and cases cited 2 Barron & Holtzoff
(Wright ed.), 567 n. 1.

23

Calagaz v. Calhoun, C.A.5th, 1962, 309 F.2d 248; Technograph Printed Circuits, Ltd. v. Methode Electronics, Inc., D.C.Ill.1968,
285 F.Supp. 714.

24

The danger is illustrated by a well-known state case, where the whole class was held bound by a suit against carefully picked members
of the class with a very small financial interest who made only a token defense. Richardson v. Kelly, 1945, 144 Tex. 497, 191 S.W.2d
857, certiorari denied 329 U.S. 798, 67 S.Ct. 487, 91 L.Ed. 683, criticized in Notes, 1945, 55 Yale L.J. 831, 25 Tex.L.Rev. 64, and
by Chafee, Some Problems of Equity, 1950, pp. 239-242.

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25

1940, 311 U.S. 32, 61 S.Ct. 115, 85 L.Ed. 22, 132 A.L.R. 741.

26

311 U.S. at 44-45, 61 S.Ct. at 119. The amended rule is helpful on this point, by providing that a class may be divided into subclasses.
Rule 23(c)(4)(B). Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 566; Kronenberg v. Hotel Governor Clinton, Inc.,
D.C.N.Y.1966, 41 F.R.D. 42, 46.

27

In the earlier case it had been stipulated that more than 95% of the owners had signed the restrictive agreement, as was required by
its terms before it could take effect. In fact only 54% had signed. See Weinstein, Revision of Procedure: Some Problems in Class
Actions, 1960, 9 Buffalo L.Rev. 433, 460; Keeffe, Levy & Donovan, Lee Defeats Ben Hur, 1948, 33 Corn.L.Q. 327, 337-339.

28

See Wright, Federal Courts, 73. The suggestion that derivative suits are not actually class actions at all-see Note, Shareholder
Derivative Suits: Are They Class Actions?, 1957, 42 Iowa L.Rev. 568-is heretical and unhistorical. See Louisell & Hazard, Cases
on Pleading and Procedure, 1962, p. 721.

29

See Tisa v. Potofsky, D.C.N.Y.1950, 90 F.Supp. 175, where it was held that the members of the executive board of a labor organization
constitute a class which can be sued in a representative capacity to enjoin action of the board, even though some members of the
board opposed that action. And see also Harris v. Palm Springs Alpine Estates, Inc., C.A.9th, 1964, 329 F.2d 909, 914. But compare
Bailey v. Patterson, D.C.Miss.1962, 206 F.Supp. 67, an action to enjoin segregation on common carriers, in which the court found
that the interest of the Negro plaintiffs was antagonistic to and not wholly compatible with the interests of those whom they purport
to represent, and held that the suit was not a proper class action. The decree thus provided that only the named plaintiffs were
entitled to unsegregated transportation. This strange decision was properly reversed. Bailey v. Patterson, C.A.5th, 1963, 323 F.2d
201, certiorari denied City of Jackson v. Bailey, 376 U.S. 910, 84 S.Ct. 666, 11 L.Ed.2d 609.

30

Knowles v. War Damage Corp., C.A.1958, 83 U.S.App.D.C. 388, 171 F.2d 15, certiorari denied 336 U.S. 914, 69 S.Ct. 604, 93 L.Ed.
1077; Pelelas v. Caterpillar Tractor Co., C.C.A.7th, 1940, 113 F.2d 629, certiorari denied 311 U.S. 700, 61 S.Ct. 138, 85 L.Ed. 454.

31

Hohmann v. Packard Instrument Co., C.A.7th, 1968, 399 F.2d 711; Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555,
562-563, noted 1968, 18 Amer.U.L.Rev. 225, 44 Notre Dame Law. 151, 43 Tul.L.Rev. 369, 21 Vand.L.Rev. 1124, 1968, 47
N.C.L.Rev. 393; Dolgow v. Anderson, D.C.N.Y.1968, 43 F.R.D. 472, 495-497; Siegel v. Chicken Delight, Inc., D.C.Cal.1967, 271
F.Supp. 722, 728, noted 1968, 54 Va.L.Rev. 314.

32

This tribute to the memory of Wesley Hohfield would be more suitable in a law review article than in an enactment which is to
guide the actions of practical men day in and day out. Chafee, Some Problems of Equity, 1950, p. 246. A lonely minority view,
finding meaning and value in the tripartite classification, was that of VanDercreek, The Is and Ought of Class Actions Under
Federal Rule 23, 1963, 48 Iowa L.Rev. 273, 280-283.

33

2 Barron & Holtzoff (Wright ed.), 562.

34

E.g., Weeks v. Bareco Oil Co., C.C.A.7th, 1941, 125 F.2d 84, 89 n. 5; California Apparel Creators v. Wieder of Cal., Inc., C.C.A.2d,
1947, 162 F.2d 893, 897, 174 A.L.R. 481, certiorari denied 332 U.S. 816, 68 S.Ct. 156, 92 L.Ed. 393; Shipley v. Pittsburgh & L.
E. R. Co., D.C.Pa.1947, 70 F.Supp. 870, 874.

35

Union Carbide & Carbon Corp. v. Nisley, C.A.10th, 1961, 300 F.2d 561, 589, certiorari dismissed, Wade v. Union Carbide & Carbon
Corp., 1962, 371 U.S. 801, 83 S.Ct. 13, 9 L.Ed.2d 46.

36

All American Airways v. Elderd, C.A.2d, 1954, 209 F.2d 247, 248; and cases cited 2 Barron & Holtzoff (Wright ed.), 572 n. 89.
This was in accord with the view of Professor Moore, a view that was properly given great influence because of his important role
in drafting original Rule 23. Moore, Federal Rules of Civil Procedure: Some Problems Raised by the Preliminary Draft, 1937, 25
Geo.L.J. 511; Moore & Cohn, Federal Class Actions, Jurisdiction and Effect of Judgment, 1938, 22 Ill.L.Rev. 555. But see Cherner
v. Transitron Electronic Corp., D.C.Mass.1963, 221 F.Supp. 48, 53-54.

37

Note, Federal Class Actions: A Suggested Revision of Rule 23, 1946, 46 Col.L.Rev. 818, 822. One well-known case was variously
characterized as a class bill, Deckert v. Independence Shares Corp., D.C.Pa.1939, 27 F.Supp. 763, 769, as spurious, C.C.A.3d,

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CLASS ACTIONS, 47 F.R.D. 169

1939, 108 F.2d 51, 55, and as hybrid, D.C.Pa.1941, 39 F.Supp. 592, 595. Finally the court of appeals said names are not important,
Pennsylvania Co. for Insurances v. Deckert, C.C.A.3d, 1941, 123 F.2d 979, 983.

38

Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 1967, 81 Harv.L.Rev.
356, 380. See also the authorities cited note 5 above.

39

Chafee, Some Problems of Equity, 1950, p. 257.

40

See Brunson v. Board of Trustees of School District No. 1, Clarendon County, S. C., C.A.4th, 1962, 311 F.2d 107, 109; Potts v. Flax,
C.A.5th, 1963, 313 F.2d 284; and cases cited at 2 Barron & Holtzoff (Wright ed.), 562.1 nn. 26.2 et seq.

41

Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 1967, 81 Harv.L.Rev.
356, 390 n. 130. Problems that this overlap may cause are discussed in Note, Revised Federal Rules 23, Class Actions: Surviving
Difficulties and New Problems Require Further Amendment, 1967, 52 Minn.L.Rev. 483, 515-527. In Technograph Printed Circuits,
Ltd. v. Methode Electronics, Inc., D.C.Ill.1968, 285 F.Supp. 714, the suit was held to satisfy every one of the tests of Rule 23(b).

42

E.g., Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 565; Hartman v. Secretary of Dept. of Housing and Urban
Development, D.C.Mass.1968, 294 F.Supp. 794, 796; see Frankel, Some Preliminary Observations Concerning Civil Rule 23, 1967,
43 F.R.D. 39, 43.

43

See Van Gemert v. Boeing Co., D.C.N.Y.1966, 259 F.Supp. 125, 129; Booth v. General Dynamics Corp., D.C.Ill.1967, 264 F.Supp.
465, 470-471.

44

Rule 23(b)(1)(A). See Advisory Committee Note, 39 F.R.D. 98, 100; Booth v. General Dynamics Corp., D.C.Ill.1967, 264 F.Supp.
465.

45

Rule 23(b)(1)(B). See Advisory Committee Note, 39 F.R.D. 98, 100-102; cf. Federal Savings & Loan Ins. Corp. v. Huttner,
D.C.Ill.1967, 265 F.Supp. 40.

46

Compare Advisory Committee Note, 39 F.R.D. 98, 102, with Note, Proposed Rule 23: Class Actions Reclassified, 1965, 51 Va.L.Rev.
629, 648-649.

47

Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 564.

48

E.g., Esplin v. Hirschi, C.A.10th, 1968, 402 F.2d 94; Doglow v. Anderson, D.C.N.Y.1968, 43 F.R.D. 472, 488-491. Individual issues
were found to dominate in School Dist. of Philadelphia v. Harper & Row Publishers, Inc., D.C.Pa.1967, 267 F.Supp. 1001, noted
1968, 54 Va.L.Rev. 314. See 2 Barron & Holtzoff (Wright & Elliott Supp.), 562 n. 24.

49

E.g., Hohmann v. Packard Instrument Co., C.A.7th, 1968, 399 F.2d 711; Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555;
Brennan v. Midwestern United Life Ins. Co., D.C.Ind.1966, 259 F.Supp. 673, 684. See cases cited 2 Barron & Holtzoff (Wright &
Elliott Supp.), 562 nn. 25, 26.

50

As listed in Rule 23(b)(3), these are: (A) the interest of members of the class in individually controlling the prosecution or defense of
separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of
the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties
likely to be encountered in the management of a class action.

51

Wright, Recent Changes in the Federal Rules of Procedure, 1966, 42 F.R.D. 552, 567.

52

Dolgow v. Anderson, D.C.N.Y.1968, 43 F.R.D. 472, 484-485; Note, Class Action Treatment of Securities Fraud Suits Under the
Revised Rule 23, 1968, 36 Geo.Wash.L.Rev. 1150; Comment, Spurious Class Actions Based upon Securities Frauds Under the
Revised Federal Rules of Civil Procedure, 1966, 35 Ford.L.Rev. 295. This does not mean that a (b)(3) action is always appropriate
in this kind of case. See Advisory Committee Note, 39 F.R.D. 98, 103.

53

See Advisory Committee Note, 39 F.R.D. 98, 103.

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54

Rule 23(c)(2). See Ward & Elliott, The Contents and Mechanics of Rule 23 Notice, 1969, 10 B.C.Ind. & Com.L.Rev. 557; Comment,
1968, 116 U.Pa.L.Rev. 889.

55

Notes, 1965, 51 Va.L.Rev. 629, 638-640, 1969, 43 Tul.L.Rev. 369. Contra: Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d
555. The leading case on the requirement of notice is Mullane v. Central Hanover Bank & Trust Co., 1950, 339 U.S. 306, 70 S.Ct.
652, 94 L.Ed. 865.

56

311 U.S. at 42, 61 S.Ct. at 118. See also Sam Fox Pub. Co. v. United States, 1961, 366 U.S. 683, 691, 81 S.Ct. 1309, 1314, 6 L.Ed.2d
604.

57

311 U.S. at 43, 61 S.Ct. at 119.

58

Booth v. General Dynamics Corp., D.C.Ill.1967, 264 F.Supp. 465, 472.

59

Mader v. Armel, C.A.6th, 1968, 402 F.2d 158, 161; Northern Natural Gas Co. v. Grounds, D.C.Kan.1968, 292 F.Supp. 619, 636;
Kronenberg v. Hotel Governor Clinton, Inc., D.C.N.Y., 41 F.R.D. 42, 46; Harris v. Jones, D.C.Utah 1966, 41 F.R.D. 70, 74-75.

60

Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 568-570; Dolgow v. Anderson, D.C.N.Y.1968, 43 F.R.D. 472, 497-501.

61

School Dist. of Philadelphia v. Harper & Row Publishers, Inc., D. C.Pa.1967, 267 F.Supp. 1001, 1004-1005; Brennan v. Midwestern
United Life Ins. Co., D.C.Ind.1966, 259 F.Supp. 673, 685.

62

Eisen v. Carlisle & Jacquelin, C.A.2d, 1968, 391 F.2d 555, 568. If this is done, the court must approve the form of notice so that
it does not become a device for solicitation. Philadelphia Elec. Co. v. Anaconda American Brass Co., D.C.Pa.1968, 43 F.R.D. 452,
462-465. See Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 1967,
81 Harv.L.Rev. 356, 398-399.

63

Dolgow v. Anderson, D.C.N.Y.1968, 43 F.R.D. 472, 498-500.

64

See School Dist. of Philadelphia v. Harper & Row Publishers, Inc., D.C.Pa.1967, 267 F.Supp. 1001, 1005; Fischer v. Kletz,
D.C.N.Y.1966, 41 F.R.D. 377; Frankel, Some Preliminary Observations Concerning Civil Rule 23, 1966, 43 F.R.D. 39, 45-47.

65

Rule 23(c)(3). This is a statement of how the judgment shall read, not an attempted prescription of its subsequent res judicata effect,
although looking ahead with hope to that effect. Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal
Rules of Civil Procedure, 1967, 81 Harv.L.Rev. 356, 393.

66

Restatement, Judgments, 1942, 86 comm. h., 116. But see Note, 1965, 51 Va.L.Rev. 629, 655-660.

67

Advisory Committee Note, 39 F.R.D. 98, 105-106.

68

See Notes, 1967, 52 Minn.L.Rev. 509, 525-526, 1965, 51 Va.L.Rev. 629, 652-654.

69

Rule 23(c)(1).

70

Rule 23(c)(1), (d)(4). See Kronenberg v. Hotel Governor Clinton, Inc., D.C.N.Y.1966, 41 F.R.D. 42, 45.

71

Rule 23(e). See 2 Barron & Holtzoff (Wright ed.), 570. This now applies to all class actions. Prior to 1966 its application was
more limited.

72

Philadelphia Electric Co. v. Anaconda American Brass Co., D.C.Pa.1967, 42 F.R.D. 324.

73

Supreme Tribe of Ben Hur v. Cauble, 1921, 255 U.S. 356, 41 S.Ct. 338, 65 L.Ed. 673.

74

Cohn, The New Federal Rules of Civil Procedure, 1966, 54 Geo.L.J. 12041, 1219-1222.

75

See Wright, Federal Courts, 9.

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76

This result seems to be assumed in Snyder v. Harris, 1969, 394 U.S. 332, 340-342, 89 S.Ct. 1053, 1059, 22 L.Ed.2d 319, but the
Court may not have been thinking of this problem.

77

City of Philadelphia v. Morton Salt Co., D.C.Pa.1965, 248 F.Supp. 506.

78

1969, 394 U.S. 332, 89 S.Ct. 1053, 22 L.Ed.2d 319.

79

Troy Bank of Troy, Ind. v. G. A. Whitehead & Co., 1911, 222 U.S. 39, 32 S.Ct. 9, 56 L.Ed. 81; Pinel v. Pinel, 1916, 240 U.S. 594,
36 S.Ct. 416, 60 L.Ed. 817. See Wright, Federal Courts, 36.

80

Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001.

81

2 Barron & Holtzoff (Wright ed.), 569.

82

Bangs, Revised Rule 23: Aggregation of Claims for Achievement of Jurisdictional Amount, 1969, 10 B.C.Ind. & Com.L.Rev. 601;
Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure, 1967, 81 Harv.L.Rev.
356, 399-400; Notes, 1969, 43 Tul.L.Rev. 360, 1967, 52 Minn.L.Rev. 509, 514-515. But see Note, 1968, 68 Col.L.Rev. 1554.

83

See Wright, Federal Courts, 32.

84

28 U.S.C.A. 1343. See Wright, Federal Courts, 32.

85

See Wright, Federal Courts, 32.

86

The majority did not speak to the point, and it is related to the general question of whether one party with an insufficient claim may
join with another whose claim is in excess of $10,000. See Wright, Federal Courts, 36. The dissenters in Snyder thought that the rule
there announced would apply in all cases where one or more of the co-plaintiffs has a claim of less than the jurisdictional amount
***. 89 S.Ct. at 1060, 394 U.S. at 343. The majority does cite, with seeming approval, 89 S.Ct. at 1057, 394 U.S. at 336-338, the
case of Clark v. Paul Gray, Inc., 1939, 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001, in which the fact that one plaintiff had a claim of
sufficient size did not preclude dismissal with regard to other members of the class with smaller claims. There is a square holding
to this effect, under the amended rule, in Alvarez v. Pan American Life Ins. Co., C.A.5th, 1967, 375 F.2d 992, 996-997, certiorari
denied 389 U.S. 827, 88 S.Ct. 74, 19 L.Ed.2d 82.

87

Esplin v. Hirschi, C.A.10th, 1968, 402 F.2d 94, 101 n. 14; Comment, Class Actions Under New Rule 23 and Federal Statutes of
Limitation: A Study of Conflicting Rationale, 1968, 13 Vill.L.Rev. 370; cf. Richmond Irons, 1887, 7 S.Ct. 788, 121 U.S. 27, 30 L.Ed.
864. Though the authorities were not uniform, there were decisions that the statute was tolled even by a spurious class action under
the old rule. Escott v. Barchris Const. Corp., C.A.2d, 1965, 340 F.2d 731, 733, certiorari denied Drexel & Co. v. Hall, 382 U.S. 816,
86 S.Ct. 37, 15 L.Ed.2d 63. There is greater reason to reach this result when members of the class are bound.

88

Philadelphia Electric Co. v. Anaconda American Brass Co., D.C.Pa.1968, 43 F.R.D. 452, 460-461; Comment, 1966, 35 Ford.L.Rev.
295, 308-309.

89

Dolgow v. Anderson, D.C.N.Y.1968, 43 F.R.D. 472, 481.

90

2 Barron & Holtzoff (Wright & Elliott Supp.), 571.

91

International Improvement Fund of Florida v. Greenough, 1881, 105 U.S. 527, 26 L.Ed. 1157; Angoff v. Goldfine, C.A.1st, 1959,
270 F.2d 185; 2 Barron & Holtzoff (Wright ed.), 570.1.

92

On when an association may be treated as an entity, see Wright, Federal Courts, 70, and 2 Barron & Holtzoff (Wright ed.), 487.
See generally 2 Barron & Holtzoff (Wright ed.), 563.

93

Advisory Committee Note, 39 F.R.D. 108.

47 F.R.D. 169

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