DC Circuit Ruling Highlights Divide Over Rule Against ‘Fail-Safe’ Class Definitions
April 6, 2023, National Law Journal
The National Law Journal featured Andrew Soukup's commentary regarding a U.S. Court of Appeals for the D.C. Circuit's decision holding that judges cannot deny class certification based only on a rule against “fail safe” class definitions, or when membership hinges on the case’s outcome on the merits.
According to Andrew, the D.C. Circuit’s approach of redefining a class could lead to a new and problematic definition that includes large numbers of people without a viable claim or who haven’t been injured.
“In that case, the overbroad class would be a class that should be denied because there’s no common issues that sweep across the class that can be answered the same way for every class member,” he said. “[The DC Circuit] is not just saying to redefine the class and then certify the class. What would have to occur in that situation is to look at whether the redefined class still has problems that make the suit unmanageable to maintain as a class action.”
While disagreement among circuits often inspires cert petitions to the U.S. Supreme Court, Andrew said it’s difficult to say whether the justices would want to resolve the divide.
Andrew said the impact of the circuit’s ruling is likely limited, given not many class actions get filed in the D.C. Circuit. And, he added, defendants who argue a class definition makes identifying members impossible must now simply connect that argument to Rule 23 instead of a general rule against “fail-safe” classes.
“What this does is it deepens an already existing circuit split. It’s hard to see many courts outside of the DC Circuit possibly considering reconsidering its approach as a result of the D.C. Circuit’s decision here,” Andrew said.
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