Professional Documents
Culture Documents
Hansberry proved only 54% of the relevant homeowners ever signed the covenant.
Court recognized, but concluded that the judgment in Burke v. Kleiman bound the people who were trying to sell the
Hansberrys.
Holding: SC reversed. Held that the people selling to the Hansberrys were not bound by the class action judgment in Burke.
Generally, one cannot be bound by a judgment unless she is a party to the case. However, to an extent not precisely defined
by judicial opinion, a judgment in a class action may bind members of the class or those represented who were not made
parties to it. Here, the claims of the class members were different, because they were not held jointly. Rather, each person
who signed the covenant entered an agreement with the others who signed the agreement. Those in favor of the covenant and
those opposed to it are not members of the same class. So a representative from one camp cannot bind someone in the other.
Takeaway: Under Hansberry, due process permits a class judgment to bind class members only if they are members of the
same class as the representative. If the representative and the class members disagree on the key issue in the litigation, they
are not members of the same class; the representative cannot represent people who disagree with her on that key issue. Need
proper represenatation.
o Can be disagreement on remedy and strategy. SLA as class members and the representative are united on the core
issues in litigation, however, there will be no constitutional problem with the judgments binding all class members.
o Notice: Nothing stated in Hansberry. Later Mullane notice reasonably certain to reach most of those interested in
objecting is likely to safeguard the interest of all, since any objection sustained would inure to the benefit of all.
Rule 23: requires notice of the pendency of class action in only one of three types of class action. IN all class cases, however,
the representation must be adequate. So the drafters of the Rule seem to have concluded that, at least in some types of class
action, adequate representation (without notice) satisfies due process.
Smith v. Swormstead
- Class of one group of clergy members sued another group to recover its share of a book fund established by the church.
Members split North-South over slavery. Though 5k preachers were not joined as parties, all were bound by the class
litigation because the parties interested are numerous, and the suit is for an object common to them all.
Supreme Tribe of Ben_hur v. Cauble
- A class-action on behalf of the members of a fraternal benefits organization bound all 70k members. As in smith, the class
members shared a identical and non-separable interests.
Prerequisites of Any Class Action Under Rule 23 (a)
- The rule prescribes specific factors for determining at the outset whether a case should proceed as a class action. Satisfaction
of the requirements of Rule 23 will avoid the constitutional problems of the type encountered in Hansberry.
- The class representatives complaint contains all the elements of any complaint under Rule 8(a). alleges it is a class action,
will define the class, says she is suing on behalf of the class.
- The case does not become a class until the court enters an order certifying it as such.
- Thus, at some point after filing the case (and after the D has responded to the complaint) the class representative will make a
motion to certify the case as a class action.
o Focus on the motion will be whether the class 1) satisfies the prerequisites of a class in Rule 23(a), and 2) falls
within one of three types of classes recognized in Rule 23 (b).
Implicit Requirements of a Class
- The prudent lawyer will continually assure the judge that his will be a manageable task.
- There is no need to name each class member. Defining the group by salient characteristics is sufficient. The idea is to reassure
the judge that if the court eventually has to distribute a remedy, it can find the people who should get it.
- Different level of specificity depends on the type of class.
- Class can include future members, but only in rare instances group needs to be well-defined, relatively small, and discrete.
o Robertson v. NBA: Basketball player brought suit against merger, saying it brought anti-competitive behavior.
Wanted to include members that would become basketball players in the future. Court said ok, because only so
many people would become basketball players in the future and they would be easily identifiable and manageable.
The Four Express Prerequisites
- Party seeking certification has burden of persuading court that all requirements are satisfied.
1. Rule 23(a)(1) Numerosity:
o Does not appear in Rule 23; courts made it up to cover the requirement in Rule 23 (a)(1) that the class be so
numerous that joinder of all members is impracticable.:
Otherwise the affected persons can join as co-plaintiffs under Rule 20(a)(1).
o Will be done on a case-by-case basis.
o Sheer number of putative numbers is a factor. No magic number. General rule
Fewer than 21 insufficient, more than 40 sufficient, in between varies depending on other factors.
However, even exceptions to these.
o Geographic dispersion of class members is relevant.
o For diversity of citizenship purposes looks only at representative if joinder would make it impossible to satisfy
complete diversity, joinder is arguably impracticable.
If individual claims are so small that members would not be expected to pursue them, joinder may be seen as
impracticable.
Philliphs Petroluem v. Shutts: Case involving a class of claimants whose claim averaged 100 dollars; the
Court explained most Ps would have no realistic day in court if class action were not available.
o Mental disability, ability to speak English, individuals too intimidated alone factors to be considered.
2. Rule 23 (a)(2): Commonality:
o The rule requires there be questions of law or factcommon to the class.
o Through the years, the only difficult issue about commonality came up not under Rule 23 (a)(2), but under Rule 23
(b)(3). That provision requires that common questions predominate over individual questions.
Wal-Mart Stores, Inc. v. Dukes
- Court reversed a Ninth Circuit decision which upheld a class of potentially 1.5 million members.
- Consisted of female employees of Wal-Mart, and alleged gender discrimination in violation of Title VII.
- P asserted discretion of managers with regards to setting pay and awarding promotion, exercised disproportionately in favor
of men.
- Sought desultory and injunctive
- Punitive and back-pay
o
Holding: Court held 5-4 that the class failed to satisfy commonality requirement of Rule 23 (a)(2). (Court held unanimously that the
class could not be certified under Rule 23 (b)(2).)
- Majority said Rule 23 (a)(2) requires only a single question of law or fact in common to the class, but held that there was
none. Saying that all Ps suffered a violation of federal employment law was insufficient. Rather, they need to have suffered
the same injury so their claims can productively be litigated at once.
- The court required evidence supporting the Ps contention that they satisfied the prerequisites of Rule 23 (a) Court held that
a party seeking class certification must proffer convincing proof that the requirements are met.
- Ps also failed in their attack on the Wal-Mart policy of allowing local managers to exercise discretion over pay and
promotion. They failed to identify a common mode of exercising discretion that pervades the entire company. Anecdotal
evidence did not suffice Affidavits from some members not good enough.
3.
4.
But representative must pay various coasts of the litigation as they are incurred Court must be convinced that the
representative can finance this aspect of litigation.
E.g. In a class action under Rule 23 (b)(3), the representative must pay to give the required notice to class
members.
Filing and Certification of a Class Action (and Possible Appellate Review of the Certification Decision)
Putative and Certified Classes
- Starts by filing a complaint, just a putative class. Not considered a class until the court certifies it.
- Rule 23 (c)(1)(A) says the court must make the certification determination at and early practicable time. often after
discovery, the representative might refine the class definition in the complaint.
- Often a watershed moment hugely litigated. If accepted as a class huge incentive to settle by D. If the claims
individually are small, litigation might not proceed.
Possible Appellate Review of Certification Decision
- Federal Rule 23(f) grants courts of appeals the discretion to review orders either granting or denying class certification.
- Study found that 53% of the cases in which courts of appeals undertook review under Rule 23 (f) resulted in reversal of class
action. Only 10% resulted in reversals of denial. good for Ds, bad for Ps.
- Most state courts have not adopted Rule 23(f) strong incentive to litigate in state court. However, Ds been given a strong
tool to remove state court class actions to federal court.
Definition of the Class and Appointment of Class Counsel
- IF the district court grants certification, it enters an order that, under Rule 23 (c)(1)(B) must define the class and the class
claims, issues, or defenses, and must appoint class counsel under Rule 23(g). not necessarily permanent. Rule 23(c)(1)(C)
expressly recognizes that an order regarding certification may be altered or amended before final judgment.
- Unless a statute provides otherwise, the court certifying a class action must appoint class counsel.
- Rule 23(g)(4): Class counsel must fairly and adequately represent the interests of the class.
- Rule 23(g)(1)(A) lists various factors the court must consider in making a finding, including work undertaken by the lawyer
in identifying and investigating the class claims, experience in handling complex litigation, her knowledge of the applicable
law, and the resources she will commit to representing the class.
- Rule 23 (b)(1)(B) counsels the court to look to any other facts pertinent to the lawyers ability to represent the class interests
fairly and adequately.
- Rule 23 (g)(2) provides detailed procedures for the appointment of class counsel.
- Multiple applicants, must appoint the best able to represent the interests of the class. Rule (g)(2)(B)
- The award may include any relevant provisions about the award of attorneys fees or nontaxable costs under Rule 23(h).
Certification on Fewer than all issues; Subclasses
- E.g. might be possible to have a class determination of the Ds liability. If successful, the court might permit individual proof
of damages.
- Subclasses, for instance if a class asserts a claim on which the standard of liability varies slightly from state to state.
- Courts take inconsistent with problem of authority with Rule 23(b)(3) classes, in which common questions must predominate
over individual questions.
Can the Court Look at the Merits?
- Court may consider the merits of the underlying dispute in ruling on class certificationbut only as required to make that
ruling.
Wal-Mart v. Dukes
First, it haled that a party seeking class certification must proffer convincing proof that the requirements are met.
Second, it hinted strongly that when considering expert witness testimony in the context of a certification, the trial judge must
apply the full federal standard for admissibility.
The court holds a fairness hearing to determine whether to approve the settlement. Though the judge will consider the
reaction of the class members to the proposal, the court retains the ultimate authority whether to approve. Rule 23(e)(2).
Under Rule 23(e)(4), the court may refuse to approve settlement of a certified Rule 23(b)(3) class action unless the settlement
affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request
exclusion but did not do so.
In addition, Rule 23 (e)(3) requires the parties seeking approval to identify any agreement made in connection with the
proposed settlement, voluntary dismissal, or compromise.
Sometimes lawyers will agree to settlement terms before that notice is sent out. In such a case, the class may receive unified
notice under Rule 23(c)(2)(B) and Rule 23(e). They will be told that they are members of a Rule 23(b)(3) class and have the
right to request exclusion, and that the case is provisionally settled on terms listen in the notice.
SC held that the court must certify the class before approving settlement. Amchem Products, Inc. v. Windsor.
No special venue provision for class actions. Generally, 28 USC Section 1391 will apply. General choices for venue are any
district where all Ds reside or in which a substantial part of the claim arose.