Edward F. Sherman · February 2011
79 GEO. WASH. L. REV. 483 (2011)
Plaintiff class counsel sometimes seek class certification for only some of the possible claims to which the class members are entitled. The reasons may include to avoid (or take advantage of) venue or jurisdictional limitations, to prevent removal to federal court of a state-court class action, to evade evidentiary issues that could be harmful to existing claims, or simply to drop claims as to which the plaintiffs had little hope of success. Such limitation of claims may be accomplished by not pursuing all possible clams when filing the original complaint, or in a motion to amend or sever claims sometime after the suit is filed. The term “abandoned claims” has been applied to the latter and, in the eyes of some, carries a pejorative connotation that valid claims are being jettisoned to the detriment of the class members.
Challenges to class certification have increasingly been made on the ground that class counsel are not adequate if they fail to raise all possible claims, and therefore the class cannot be certified. The challengers view failure to raise all possible claims as splitting the cause of action, thereby leaving the class members at risk that a later court will find the omitted claims to be precluded. This Essay proposes a number of steps under the rubric of judicial supervision to reduce the risk of preclusion and a finding of inadequate representation, which would lead to denying class certification when fewer than all possible claims are asserted.
