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7.3.1 Defining and Managing a Class (part one)

Updated 2017 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 2017 by Sarah Somers