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Civil Procedure Fall 2014

Cheat Sheet on FRCP Rules 23(b) and 23(c)


What follows is some additional notes on FRCP 23(b) and 23(c). In some instances I have simplified slightly what is more complex terrain, but that is why we often offer an upper year class in Class Actions.




RULE 23(b)




Rule 23(b) enumerates three categories of class. If a suit meets the requirements of FRCP 23(a), the judge must then decide if it falls into any of these three categories.




  • Rule 23(b)(1) “Prejudice Class Action”:  If individual actions might create prejudice that a class action suit would avoid, certification under 23(b)(1) requires a “mandatory” class action where absentee members cannot opt out of the class.
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  • 23(b)(1)(A) creates a mandatory class where there would be prejudice to nonclass parties due to “incompatible standards of conduct” required of the party opposing the class. Keep in mind that this requirement does not deal with cases where damages are owed to some plaintiffs but not others. A frequent example is a claim related to eligibility to vote. Imagine a voting rights organization sues Massachusetts about a voter eligibility question, whether undergraduate students can vote. Imagine one student wins and is allowed to vote and another student loses and has no judgment saying she can vote. The state will not know what to do about the third student who has not yet sought a judgment. A class action would bind all similarly situated individuals as members of the class and the board can take appropriate and consistent action towards all of the individuals.
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  • 23(b)(1)(B) deals with prejudice to class members where individual actions “would be dispositive of the interests” or “substantially impair or impede” the ability of other potential class members to protect their interests. The most frequent example is multiple claimants against a common fund, such as an insurance policy. Because this type of class action may result in some plaintiffs getting less than they would have gotten if they had been the first past the post, courts are careful about certifying this kind of class. Some courts have emphasized the need for plaintiffs to do more than merely assert the funds available are inadequate to cover all of the claims of class members.
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    **NOTE: Rule 23(b) creates mandatory class actions where class members may not opt out. This is a very powerful litigation tool.




  • Rule 23(b)(2) “Injunctive/Declarative Relief Class Action”: This rule deals with class actions for injunctive and declaratory relief. This provision is the most commonly invoked of the 23(b) categories, especially for claims involving civil rights, employment discrimination, consumer protection, environmental damage, where plaintiffs aim to change a defendant’s conduct rather than seek monetary damages. However, to be within 23(b)(2) the defendant’s conduct must be “generally applicable” to the class. A showing of harm or offense to each class member is not required. Rule 23(b)(2) creates a mandatory class with no ability to opt-out, but no notice is required. This type of class action is the most common and often the most successful.
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  • Rule 23(b)(3) “Damages Class Action”: Rule 23(b)(3) is frequently invoked for class actions seeking damages, such as mass torts, where the defendant has allegedly injured all the class members in the same way. To qualify for this category, plaintiffs must meet the requirement of ‘predominance” such that the common questions of law or fact predominate over differences. In addition, plaintiffs must show that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3) requires mandatory notice and opt-outfor absent class members.
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  • Courts consider four factors in determining whether superior and predominance requirements have been met, including “class members’ interests in individually controlling” their claims, the “extent and nature of any litigation” related to the controversy already begun by class members, and “the desirability of concentrating the litigation” in a particular forum, and the most important factor, the problems of managing the class action, such as the size and similarity of the class, the number of likely intervenors, and the burden of notice requirements. However, these factors are often not well defined and courts struggle with the questions inherent in determining whether class actions are the best vehicle for deciding a suit. Consider how the court approaches these factors when reading Castano v. American Tobacco Co.
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    Often courts struggle with certifying class actions under Rule 23(b) where plaintiffs seek both monetary damages and injunctive relief.  The Advisory Committee Note to Rule 23 (b)(2) notes that the rule “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.”


    In Johnson v. General Motors, the Fifth Circuit reasoned that where “individual monetary claims are at stake, the balance swings in favor of the provision of some form of notice. It will not always be necessary for the notice in such cases to be equivalent to that required in (b)(3) actions…Before an absent class member maybe forever barred from pursuing an individual damage claim, however, due process requires that he receive some form of notice that the class action is pending and that his damage claim may be adjudicated as part of it.” 598 F.2d 432, 437-38 (5th Cir. 1979). The Ninth Circuit in Dukes v. Wal-Mart found FRCP 23(b)(2) certification property where plaintiff’s claim for money damages did not predominate over claims for injunctive relief. Consider the Supreme Court’s opinion in Dukes below.




    RULE 23(c): Timing and Certification 


    Under Rule 23(c), the district court is required to certify the class “[at] an early practicable time.” Rule 23(c)(1)(A). A practicable time is not always on day one and defendants often try to delay certification of the class to run up plaintiffs’ litigation costs. After certification, a court can change the certification order any time “before final judgment.” Rule 23(c)(1)(A). Thus, the court has ongoing oversight to ensure that even if the class changes based on facts that may come to light as discovery progresses, certification is still proper. Under Rule 23(c), the court is required to define the class. Rule 23(c)(1)(B). The court’s certification order must also define the substantive claims, issues or defenses that the suit will consider. Rule 23(c)(1)(B). Judges also have discretion to certify partial class actions, where they may only consider a few issues on a class basis related to a larger cause of action. For example, a court might certify a partial class with regard to what a pharmaceutical company knew about a drug’s side effects before it introduced it to the market. Plaintiffs would still pursue individual actions on other questions of law and fact regarding individual injury caused by the drug.