THE PUZZLE OF CLASS ACTIONS WITH UNINJURED MEMBERS Joshua P. Davis,1 Eric L. Cramer,2 and Caitlin V. May3 A puzzle has developed regarding class action doctrine. Courts in a number of important recent decisions have reaffirmed that classes may satisfy the predominance standard under Fed.
R. Civ. P. 23(b)(3) and be certified even if they contain members who have not suffered cognizable injury.4 The authors of this Article have in the past defended this position and have criticized other class certification opinions in the antitrust context implying that class certification is appropriate only where plaintiffs proffer class-wide evidence capable of showing harm to all or nearly all members of the class. The authors have argued, inter alia, that under 1 Associate Dean for Faculty Scholarship and Professor, University of San Francisco School of 2 A Managing Shareholder, Berger & Montague, P.C.
3 Class of 2013, University of San Francisco School of Law.
4To be a bit more precise, the issue at the class certification stage is whether plaintiffs have offered sufficient class-wide evidence capable of establishing harm to an appropriate portion of the class. We use the language in the text about having unharmed class members (as opposed to postulating inadequate class-wide evidence of harm to all class members) because it poses the issue we want to discuss in a more straightforward way. Moreover, if we make our case that class certification can be appropriate when a class does contain uninjured members, then, a fortiorari, it is appropriate if a class merely may contain uninjured class members. See Kohen v. Pac. Inv. Mgmt. Co., 571 F.3d 672, 677 (7th Cir. 2009) (Posner, J.) (“PIMCO”) (“[A] class will often include persons who have not been injured by the defendant’s conduct; indeed this is almost inevitable because . . . many of the members of the class may be unknown, or if they are known still the facts bearing on their claims may be unknown. Such a possibility or indeed inevitability does not preclude class certification, despite statements in some cases that it must be reasonably clear at the outset that all class members were injured by the defendant’s conduct.”) (citations omitted); Pella Corp. v. Saltzman, 606 F.3d 391, 394 (7th Cir. 2010) (“While it is almost inevitable that a class will include some people who have not been injured by the defendant’s conduct because at the outset of the case many members may be unknown, or the facts bearing on their claims may be unknown, this possibility does not preclude class certification.”); In re Wellbutrin SR Direct Purchaser Antitrust Litig., No. 04-CV-5525, 2008 WL 1946848, at *10 (E.D. Pa. May 2, 2008) (collecting antitrust cases holding that presence of some uninjured class members does not preclude class certification); Meijer, Inc. v. Warner Chilcott Holdings Co. III, 246 F.R.D. 293, 310 (D.D.C. 2007) (finding class certification appropriate even though injury cannot be shown as to certain class members).
Rule 23(b)(3) common issues need merely predominate; not all issues need to be common.
They have also noted that an “all or nearly all” requirement would be inconsistent with plaintiffs’ burden at trial where courts have not required a showing of injury to all class members to obtain a class-wide judgment. The authors have further observed that in antitrust cases, where plaintiffs are often able to compute aggregate class-wide damages accurately even where classes contain uninjured members, no party is prejudiced by their presence given that the defendant’s exposure This Article will take as a point of departure the conclusion of the authors’ earlier writings—namely that certifying classes with uninjured members reflects a proper interpretation of Rule 23—and will explore the implications of such a rule for three doctrines: standing, due process, and the Rules Enabling Act. For instance, why doesn’t standing doctrine require that all class members suffer a legally cognizable injury? How can it be that due process rights—of named plaintiffs, absent class members, or defendants—are not violated if a class includes members who would have no basis for recovering in individual litigation? Why doesn’t litigating on behalf of uninjured absent class members modify substantive rights in violation of The answer to these questions may vary depending, in part, on the stage of the proceedings. For instance, litigating common issues on behalf of a class up to the start of trial may not be objectionable—even if some of the class members’ claims lack merit for individual 5 See Joshua Davis & Eric L. Cramer, Antitrust, Class Certification, and the Politics of Procedure, 17 George Mason Law Review 4 (2010) (; Joshua Davis & Eric L. Cramer, Of Vulnerable Monopolists?: Questionable Innovation in the Standard for Class Certification in Antitrust Cases, 41 Rutgers Law Journal 355 (2009-2010) (; see also Joshua P. Davis, Class-Wide Recoveries, __ Geo.
reasons—while the propriety of awarding a recovery on an aggregate basis to the same class after a trial requires a more searching analysis.
In addressing these issues, the Article seeks both to clarify the relevant doctrines and to apply them to the class context. While the analysis requires some care, we can offer a brief summary of our main conclusions. First, as to standing, some courts have suggested that only a named plaintiff needs to have standing to pursue class claims and 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 only a named plaintiff must make a showing in support of its claims whereas absent class members need merely be in the group who 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.6 Appropriate balancing, this Article suggests, leads to the conclusion that, in some cases, neither certification of classes containing uninjured members nor awarding of class-wide recoveries to those classes after trial deprives any litigants of the process Finally, the Article contends that the Supreme Court’s recent decision in Shady Grove undermines the argument that certification of a class with uninjured members violates the Rules Enabling Act.7 Shady Grove appears to have held that as long as a Federal Rule of Civil Procedure addresses only the means by which claims are litigated, it does not violate the Rules Enabling Act, even if it has a significant effect on substantive rights. Merely including uninjured 6 See, e.g., MARTIN REDISH, WHOLESALE JUSTICE: CONSTITUTIONAL DEMOCRACY AND THE PROBLEM OF THE CLASS ACTION LAWSUIT, 135-136 (2009).
7 Shady Grove Orthopedic Associates, P.A. v. Allstate Insur. Co., __ U.S., __, __, 130 S. Ct.
persons in a class—and even resolving common issues on their behalf—would seem to fit within this rule. On other hand, the Article notes that the permissibility under the Rules Enabling Act of class-wide recoveries—ones that compensate uninjured members—is not fully resolved by Shady Grove and then offers some suggestions for how to frame the relevant analysis.


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