Joshua P. Davis, Eric L. Cramer, and Caitlin V. May · May 2014
82 GEO. WASH. L. REV. 858 (2014)
A puzzle has developed regarding class action doctrine. A number of recent judicial decisions have reaffirmed that classes may be certified under Federal Rule of Civil Procedure 23(b)(3) even if they contain members who have not suffered cognizable injury. This Article assumes these decisions interpret Rule 23 properly and explores the implications for three doctrines: standing, due process, and the Rules Enabling Act. In doing so, this Article seeks both to clarify the relevant doctrines and to apply them in the class setting.
Although this analysis requires some care, we can briefly summarize the Article’s main conclusions. First, as to standing, some courts have suggested that only a named plaintiff needs to have standing to pursue class claims, while others have indicated that all members of a potential class must have standing. The Article attempts to reconcile these apparently conflicting positions, explaining that the precedents make sense if the requirement is that only a named plaintiff must make an individualized showing in support of her claims, while absent class members need merely be in the group that could potentially have viable claims.
Second, as to due process rights, the Article argues that critics of class action doctrine have adopted an overly rigid approach, one incompatible with the flexible cost-benefit analysis integral to the due process standard. Appropriate balancing, this Article contends, suggests that neither the certification of classes containing uninjured members nor the awarding of classwide recoveries to those classes after trial necessarily deprives any litigants of the process they are due.
Finally, the Article contends that, under the Supreme Court’s decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., including uninjured members in a certified class can be permissible under the Rules Enabling Act as long as it changes only the means by which claims are litigated and not the parties’ substantive rights, even if the class process has a significant effect on those substantive rights.
