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, afortiorari, 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. WarnerChilcott 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 ofProcedure, 17 George Mason Law Review 4 (2010) (http://ssrn.com/abstract=1578459); Joshua
Davis & Eric L. Cramer, Of Vulnerable Monopolists?: Questionable Innovation in the Standardfor Class Certification in Antitrust Cases, 41 Rutgers Law Journal 355 (2009-2010)
(http://ssrn.com/abstract=1542143); 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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