Arguing Class Actions is a monthly column by Adam J. Levitt for the National Law Journal.
Reprinted with permission from the May, 6 2024 edition of the National Law Journal. © 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
Often in the law, much hinges on the choice of a particular word. This is true of a contract, a statute, and it is no less true of the Federal Rules of Civil Procedure. There is one word in the Federal Rules, however, that has increasingly been interpreted contrary to its plain meaning. That word is “predominate,” in Federal Rule of Civil Procedure 23(b)(3). Rule 23(b)(3) says that a case may proceed as a class action when “questions of law or fact common to class members predominate over any questions affecting only individual members.” The choice of the word “predominate” unambiguously conveys the intent that cases be certified as class actions, even when there are a number of individual issues, as long as those individual issues are outweighed by common issues; that is, a finding that common issues “predominate” over individual issues. Yet, in class actions seeking Rule 23(b)(3) class certification, litigation often turns into a fight to prove that all issues are common across the class—thus erroneously conflating predominance with perfection, which is not what the rule contemplates or requires.
To read an implicit requirement into Rule 23(b)(3) that all, or nearly all, issues of law and fact must be common across the class is not only at odds with the choice of the word “predominate,” it is also at odds with the intention behind Rule 23(b)(3). When the Federal Rules were amended in 1966 and Rule 23(b)(3) was introduced, the Advisory Committee stated that the new rule was intended to allow for class actions where certification would “achieve economies of time, effort, and expense, and promote uniformity of decisions as to persons similarly situated.” Fed. R. Civ. P. 23(b)(3) advisory committee’s note to 1966 amendment. Benjamin Kaplan, reporter to the 1966 U.S. Judicial Conference Advisory Committee on Civil Rules, explained, “The reform of Rule 23 was intended to shake the law of class actions free of abstract categories … and to rebuild the law on functional lines responsive to those recurrent life patterns which call for mass litigation through respective parties.” (See Benjamin Kaplan, “A Prefatory Note,” 10 B.C. Indus. & Com. L. Rev. 497, 497 (1969).) In the same comment, Kaplan noted that the rule’s reconstruction sought “to promote more vigorously than before the dual missions of the class-action device,” by way of (1) reducing the amount of litigation by consolidating cases that may otherwise be duplicative and (2) providing a means of vindication “for groups of people who individually would be without effective strength to bring their opponents into court at all.” As the Supreme Court later stated in Phillips Petroleum v. Shutts, 472 U.S. 797, 809 (1985), Rule 23(b)(3) permits “plaintiffs to pool claims which would be uneconomical to litigate individually.”
In challenging predominance at the class certification stage, class action defendants have, particularly in recent years, pushed an interpretation of Rule 23(b)(3) that requires an overwhelming predominance, if not complete uniformity, of common issues. For instance, defendants have homed in on differences between class members that, they argue, precludes class certification regardless of whether those differences would truly be material. The defense bar makes no secret of how it would prefer that “predominance” be applied; it has proposed that language be added to Rule 23(b)(3) that could drastically narrow when predominance could be satisfied by allowing a defendant to use “any fact or defense” to drive a wedge between class members. See DRI: The Voice of the Defense Bar, Comment to the Rule 23 Subcommittee, Advisory Committee on Civil Rules 1, 7 (Sept. 10, 15), available at //www.uscourts.gov/sites/default/files/15-cv-dd-suggestion_dri_0.pdf.
It is important for courts to recognize that this is simply not what the plain meaning of “predominance” in Rule 23(b)(3) provides. See Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989) (the Federal Rules of Civil Procedure are given their plain meaning). “Predominate” does not mean “overwhelm”; it simply means, as the Supreme Court noted, that the common issues “are more prevalent or important” than the individual ones. Tyson Foods v. Bouaphakeo, 577 U.S. 442, 453 (2016) (citation omitted). When properly applied consistent with its plain meaning, the predominance requirement ensures that respective class members’ interests are cohesive enough to permit class-wide adjudication. See 2 Newberg & Rubenstein on Class Actions § 4:49 (6th ed.). As the Advisory Committee notes state, it is only where “predominance exists that economies can be achieved by means of the class-action device.” Fed. R. Civ. P. 23(b)(3) advisory committee’s note to 1966 amendment. And when it comes to low damages claims that cannot prudently be pursued on an individual basis, the amount by which common issues must predominate in order to achieve such economies will almost always tolerate a handful of individual issues.
In Siqueiros v. General Motors LLC, for example, when the defendant contested class certification on the basis of potentially individual issues relating to its statute of limitations defense, the court granted plaintiffs’ motion to certify the class under Rule 23(b)(3), holding that “individual issues regarding [d]efendant’s statute of limitations defense could be addressed following the class-wide trial.” 2021 WL 2115400, at *23 (N.D. Cal. May 25, 2021). As it turned out, those individual issues did not feature at all in the class trial; the jury resolved the statute of limitations defense on a class-wide basis with no need for post-trial proceedings. See generally 2023 WL 7272508 (Nov. 2, 2023).
Rule 23(b)(3) provides plaintiffs with the flexibility to bring claims in an efficient and cost-effective manner, while simultaneously providing courts with the tools to guarantee that the class members share common interests so as to warrant class-wide review. See generally Amchem Products v. Windsor, 521 U.S. 591, 615 (1997). When used appropriately, class actions protect public health and safety, consumer rights, and the environment by issuing groupwide redress, rather than allowing thousands of individual cases, with similarly situated plaintiffs, to congest the courts and overwhelm judicial resources. See Working Papers of the Advisory Committee on Civil Rules on Proposed Amendments to Civil Rule 23 (May 1, 1997), available at //www.uscourts.gov/sites/default/files/workingpapers-vol2.pdf (referencing In re Three Mile Island Litigation, 87 F.RD. 433 (M.D. Pa. 1980); In re School Asbestos Litigation, 789 F.2d 996 (3d Cir. 1986); In re Agent Orange Litigation, 818 F.2d. 145 (2d. Cir. 1987)). Many courts, including the Supreme Court, have reinforced the importance of class actions as a tool for efficient and economically-sound litigation. See Phillips Petroleum, 472 U.S. at 809 (“Class actions may permit the plaintiffs to pool claims which would be uneconomical to litigate individually”); Parko v. Shell Oil, 739 F.3d 1083, 1085 (7th Cir. 2014) (noting that “predominance of issues common to all class members, like the other requirements for certification of a suit as a class action, goes to the efficiency of a class action as an alternative to individual suits”).
Reading into Rule 23(b)(3) a more exacting standard that requires uniformity among the claims of the class members, however, would undermine the rule’s intended purpose and limit its usefulness in determining liability in a class-wide adjudication. This is especially true in consumer cases, where certain claims may not be large enough to warrant individual litigation. If courts elect to hew to a narrow understanding of Rule 23(b)(3)’s predominance requirement, plaintiffs who nevertheless suffered injury at the hands of a defendant wrongdoer may not be able to seek adequate redress given that minor, immaterial case distinctions would preclude much-needed certification. Not only does such an approach undermine Rule 23’s purpose, plain language, and intent, but it effectively closes the courthouse doors to investors, consumers, small businesses, and others seeking to use the class action vehicle to achieve economic justice.
Thank you to DiCello Levitt associate Julia Veeser for contributing to this column.
Adam J. Levitt is a founding partner of DiCello Levitt, where he heads the firm’s class action and public client practice groups. He can be reached at [email protected].