Making the Motion for Class Certification (Federal)
 

Making the Motion for Class Certification (Federal)

Posted on 11-02-2018

By: Jim Wagstaffe and The Wagstaffe Group

CLASS CERTIFICATION PROCEDURES ARE GOVERNED BY Rule 23(c)(1)(A) of the Federal Rules of Civil Procedure (Rule 23): “At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.”1 If the court denies certification, the action will proceed as an individual action. The court should not consider the impact of denying class certification in making its ruling.2

Procedures

Use of the term “at an early practicable time” in Rule 23(c)(1) (A) indicates that the court must balance an early resolution of the certification question against the needs of the parties to have a meaningful amount of time to muster the resources to bring or defend against a motion for certification.3

Local rules and case management orders frequently state deadlines for disclosing class certification expert reports and filing certification motions.

It is within the court’s sound discretion to deny an untimely motion for certification, particularly if the motion is filed past a court-set deadline.4

Especially in an action seeking money damages, certification nearly always takes place before a merits determination. This prevents against the one-way intervention problem, by which non-parties join a successful suit after the fact and avoid any risk. The one-way intervention rule prevents defendants from “being pecked to death by ducks. One plaintiff could sue and lose; another could sue and lose; and another and another until one finally prevailed; then everyone else would ride on that single success.” 5

A court retains the discretion to rule on dispositive motions before class certification, particularly if the plaintiff’s claims are weak or frivolous or if an easily adjudicated affirmative defense may impact class certification.6

The one-way intervention rule does not prevent a district court from issuing a preliminary injunction in a putative class action, because the injunction ruling is merely a prediction regarding the merits and not a final determination.7

A district court has the obligation to determine whether class allegations may proceed prior to any party moving for a ruling.8 A court may deny class certification even before the plaintiff files a motion requesting certification.9

Certification Motions

Upon motion, either party may seek an order certifying a class or a preemptive motion to decertify a class.10

The defendant’s motion may take the form of a motion to strike the class allegations. However, early motions to strike are not likely to be granted if the plaintiff has not had an adequate time to support his or her Rule 23 allegations.11

The party seeking class certification always bears the burden of establishing the Rule 23(a) requirements by a preponderance of the evidence.12

The court may examine the merits if there are issues with the Rule 23 question. The “‘rigorous analysis’ (of Rule 23) will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped...Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, for example, jurisdiction and venue, is a familiar feature of litigation.”13 In Amgen Inc. v. Conn. Ret. Plans & Tr. Funds, 568 U.S. 455, 459 (2013), the U.S. Supreme Court ruled that there are limits to merits analysis at the class certification stage. “Rule 23(b) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class.”14

However, a court may not decline to certify a class action simply on the basis that the claims lack merit.15

As with any other motion, the plaintiff must include the evidence needed to establish all four of the Rule 23(a) factors and the grounds that establish the requested Rule 23(b) class.16

The Supreme Court has clearly stated that Rule 23 does not set forth “a mere pleading standard.” Instead, evidence sufficient to support a rigorous analysis is needed.17

The evidence presented in support of a motion for class certification need not be presented in a form that would be admissible at trial.18

Evidence Considered

Evidence that may be considered on a motion includes:

  • Pleadings. While not conclusive, the pleadings set forth the touchstone for the Rule 23(a) analysis.19 In rare cases, a denial of class certification may be solely based on pleadings that conclusively show the inability to meet Rule 23 requirements.20
  • Sufficient extrinsic evidence. The parties should supplement the pleadings with sufficient material, for example, deposition testimony, discovery responses, or items subject to judicial notice, to allow an informed judgment on each of Rule 23(a)’s requirements.21
  • Expert reports. Expert reports are frequently used in class certification motions. The court may consider relevant expert opinions in making its certification decision. In dicta, the Supreme Court has suggested that the heightened evidentiary Daubert standard applies to expert reports related to certification.22 Some courts require an expert opinion in support of class certification to meet the same standard of admissibility used at trial.23 Other courts, recognizing the limits of the certification inquiry, simply consider the expert testimony as it relates to the standards relevant to class certification.24
  • Sampling evidence. Sampling evidence, either scientific or anecdotal, may be used in a class certification motion, provided it meets relevant evidentiary standards and is truly representative, in that it supports the commonality and predominance factors.25 The Supreme Court has recently disavowed a “categorical exclusion” of representative evidence. Instead, “Its permissibility turns . . . on the degree to which the evidence is reliable.”26 For example, where workers were not paid for donning or doffing their work uniforms, damages varied between class members, and defendant did not keep accurate records, the plaintiff class properly relied on “representative evidence” to determine the total number of hours that were not compensated. Class certification was properly granted.27
  • Matters subject to judicial notice. The court may consider matters of which it may take judicial notice in ruling on class certification issues.28

Ruling on Certification

If the court denies certification, the action will proceed as an individual action. The court should not consider the impact of denying class certification in making its ruling.29

If the court grants certification, it must issue an order pursuant to Rule 23(c)(1)(B) that:

  • Defines the class
  • Identifies the class claims, issues, or defenses
  • Appoints class counsel

For classes certified under Fed. R. Civ. P. 23(b)(3), the order must also direct the best notice practicable under the circumstances.

Certification may be conditional. The order granting or denying class certification may be conditional based on certain developments in the action.30

A court may order subclasses. Each subclass must meet the requirements of Rule 23.31

Certification on Single Issue (Rule 23(c)(4))

“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”32 After the certified common issues have been decided, the litigation proceeds on an individual basis with respect to the remaining issues.33

Courts may certify the issue of liability only, leaving the ascertainment of damages to individualized treatment.34

At least one case holds that the action as a whole must satisfy the predominance requirement of Rule 23(b)(3) and that Rule 23(c)(4) is merely “a housekeeping rule that allows courts to sever the common issues for a class trial.”35

Timing of Ruling

The timing of the certification ruling may depend on the type of class certified. Because notice is not mandatory in Rule 23(b)(1)-(2) classes, the court may properly defer a ruling on certification until trial and judgment.36 However, in a class action under Rule 23(b)(3) (most frequently used for money damages), individual notice to class members is required. Thus, notice must be sent before the case proceeds to judgment.37

Practically speaking, rulings are generally made well before trial.

Appointing Counsel

The court must appoint class counsel at certification.38

The court may appoint interim counsel before certification.39 “When appointing interim class counsel, courts generally look to the same factors used in determining the adequacy of class counsel under Rule 23(g)(1)(A) of the Federal Rules of Civil Procedure.”40

In appointing class counsel, a court must consider:41

  • Work done by counsel in identifying or investigating potential claims in the pending action
  • Counsel’s knowledge of the applicable law
  • The resources counsel will commit to representing the class
  • Any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class

How Appointed

The court generally issues an order to class counsel applicants to provide the court with information and argument as to why they should be selected.42 Where there are many applicants, the court must appoint the applicant “best able to represent the interests of the class.”43 If there is only one counsel seeking appointment, the court still must analyze the Rule 23(g) factors.

Be prepared to show the court that you and your firm have the necessary experience to represent the class by pointing to past successes and/or association with other experienced counsel.

Other necessary orders may be issued by the court related to the appointment, including but not limited to, procedures for awarding attorney’s fees and costs.44

The court may allow the parties to bid for class counsel by permitting attorneys to “… propose terms for attorney’s fees and nontaxable costs.”45

The Private Securities Litigation Reform Act governs the selection of class counsel in securities fraud cases.

Counsel’s Adequacy

An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.46 In determining if proposed class counsel is adequate to represent the class, consider:

  • Counsel as partner or relative of class representative. The named plaintiff may not employ as class counsel a close familial or business relation such as an attorney from the same firm or a member of the family.47
  • Conflicts of interest may exist if:
    • The attorney previously represented the defendant.48
    • The attorney is a potential witness in the class action.49
    • The attorney sued the same defendant in another class action.50
    • The attorney represents opposing parties within the same proposed class.51

Most jurisdictions permit class counsel to advance costs in the litigation.52

If there is opposition to class counsel, the court may permit discovery into the issue.53

Modifying or Decertifying a Certification Order

An order granting or denying certification may be altered, amended, or vacated at any time before final judgment.54 However, after final judgment, the court may amend a certification order only for “egregious error.”55

Decertification Procedures

Either sua sponte or upon motion, the court may decertify the class.56

A class may be decertified if the Rule 23(a) and (b) factors are found not to exist.57

It is unclear which party has the burden of proof on a decertification motion.58 A defendant has a difficult burden in challenging certification if the initial certification decision was carefully considered and made after certificationrelated discovery.59

A motion to decertify must be made “before final judgment.”60 Accordingly, a defendant may not wait until after a merits decision to challenge the certification order in a belated attempt to limit damages.

The failure of some plaintiffs or defendants to meet the class definition does not, by itself, require decertification of an entire class.61

If subsequent events lead to the named representative being disqualified, the representative may be substituted for with another adequate class representative.62

Appeal

Decertification orders are appealable under Rule 23(f).63

Circuits are split as to whether a plaintiff can force appellate review of an order denying class certification by voluntarily dismissing the claims under Fed. R. Civ. P. 41.64 The U.S. Courts of Appeal for the Second and Ninth Circuits have allowed an appeal. Most other circuits have rejected it.

A proposed amendment to Rule 23(f) would clarify that interlocutory appeals may be sought only after class certification is granted or denied, not from an order to give notice under Rule 23(e)(1). The committee note explains that, in cases where a class has not yet been certified, the court’s decision to order notice is sometimes inaccurately referred to as “preliminary approval” or “conditional certification,” although it does not, in fact, grant or deny class certification.65 This amendment codifies current practice and case law

Denial of Certification and Statute of Limitations

When federal claims have a limitations period, the period is generally tolled from filing until the denial of class certification.66

Absent putative class members may intervene in the action or file their new actions following denial of certification.67 Of course, they must do so within the time remaining in the limitations period.68 The reason for tolling is that the utility of class actions would be greatly diminished if absent class members had to intervene or file their own actions to preserve their claims while class certification was pending.

However, if a class certification decision is never made, the equitable tolling ends on the date set by the court for the party seeking class certification to do so.69

Additional issues involving this equitable tolling rule include:

  • Application when certification denied. The equitable tolling rule is applied regardless of the reason for denial of class certification.70 Most courts agree equitable tolling applies to actions that would otherwise be untimely when the certification motion is heard.71
  • Application to opt-in to statutory actions. The limitations period can be tolled to allow class members to opt-in for class actions such as those under the Age Discrimination in Employment Act.72
  • No indefinite tolling for subsequent class actions. The equitable tolling rule will not apply when a later plaintiff files a new class action without the defects that led to the dismissal of the earlier action.73
  • Tolling of potential federal claim during state law class action. The limitations period on a federal claim is not tolled during a state court class action raising similar state claims.74
  • Effect of tolling on intervenor’s class claims. A party intervening after expiration of the statute of limitations is allowed to assert both individual and class claims.75
  • Period of tolling after class certification. Post-certification, tolling continues throughout the action.76
  • Effect of limiting class definition. If the class certified is more narrow than the class defined in the complaint, courts have held that the tolling applies only to the narrower class.77
  • Tolling for state law claims. When the limitations period is set forth, or derived from, state law, federal courts must apply state tolling rules under Erie principles.78
  • States following tolling rule. Many states follow the federal tolling rule for class actions.79
  • When federal claim uses state limitations period. If a federal claim uses a state limitations period, the court follows the state rule on tolling. In a 42 U.S.C.S. § 1983 federal civil rights suit, the court uses an analogous state statute of limitations. If the state rule is that the statute runs anew upon denial of certification, the federal courts must also allow a new statutory period for individual suits.80

There is some authority supporting the argument that denial of class certification creates a preclusive effect on future attempts by absent class members to obtain class certification.81 Other courts disagree.82

Class Notice

Rules governing notice to the class include:

  • Rule 23(c)(2). Rule 23(c)(2) governs notice in a class action. Consideration must be given to the type, content, and manner of notice to be provided to absent class members.83
  • Discretionary notice in Rule 23(b)(1)-(2) class actions. In class actions maintained under Rule 23(b)(1)-(2), it is not necessary to provide individual notice. These types of class actions are mandatory, and the absent class members do not have opt-out rights. Therefore, notice is not required.84 However, if the court sees fit, the court has the discretionary right to order appropriate notice.85
  • Mandatory notice for Rule 23(b)(3). Notice is mandatory for class actions maintained under Rule 23(b)(3). Absent class members are entitled to “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.”86

Best Practical Notice

Rule 23(c)(2)(B) states that class members must be notified by the “best notice that is practicable under the circumstances …”87

Class Members Reasonably Identifiable

If class members can be identified by reasonable means, individualized notice is preferable.88

First-class mail to each class member has been found to suffice under this standard.89 However, other means of publication may also suffice if first-class mail is not available for class members who are reasonably identifiable.90

Class Members Not Identifiable

If all class members cannot be identified, then some other form of publication may suffice.91

If the best notice practicable was given, an absent class member’s due process rights are not violated although the notice was not received until after the opt-out deadline.92

Notice by email or other digital means, social media, or web sites has been approved, often in connection with mailed notice, to ensure absent class members receive notice per Rule 23(c)(2)(B).93

A proposed rule change would provide that notice may be given by “U.S. mail or electronic or other appropriate means.”94 In the past, some courts have held that notice by first-class mail is required in every case, based on the U.S. Supreme Court’s interpretation of the individual notice requirement in Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974).

This amendment clarifies that electronic notice, such as by email or internet advertising, may be appropriate in some cases, in accord with current practice. However, the court must exercise its discretion in determining “the best notice that is practicable under the circumstances” in the particular case. For example, electronic notice not be may proper if the class does not have internet access.95

Identifying Class Members

Class counsel may be responsible for compiling a list for giving notice, particularly where plaintiff has obtained records showing the same.96

The court may require the defendant (if the class comprises plaintiffs) to identify the class members to receive notice.97

Description of Notice

Rule 23(c)(2)(B) requires the following information “clearly and concisely,” in straightforward language, to be included in the notice:

  • The nature of the action
  • The class definition
  • The class claims, issues, or defenses
  • The ability of a class member to enter an appearance in the class action through an attorney
  • The ability to opt out of the class
  • The time and manner restrictions on doing so
  • The binding nature of a class judgment on all individuals the court finds to be members of the class who did not request to be excluded

The class definition should also indicate when the class period begins and ends.98

For reference and review, a useful Notice Checklist and Plain Language Guide is available at the web site of the Federal Judicial Center.99

Additional considerations regarding the notice include:

  • Gist of notice. The gist of the notice should give “information that a reasonable person would consider to be material in making an informed, intelligent decision of whether to opt out or remain a member of the class . . . ”100 It is not necessary that the notice contain information on every strategic or tactical decision related to the litigation, such as what claims were pursued and why, or the arguments of parties.101
  • Timing of notice. Notice must be provided to absent class members before the merits are adjudicated. Practically speaking, notice usually quickly follows the certification order.102
  • First certification notice may be settlement notice. When a class is settled as part of a certification, it is common that the first notice of certification also includes the notice of settlement.103

Preparation of Notice

Class counsel generally prepares the notice, with the input from the opposite party and the court.104

Unless a statute or the court orders otherwise, class counsel generally bears the cost burden of providing notice to the class.105 However, under exceptional circumstances, a plaintiff class’s counsel can seek to shift the burden to the defendant.106

Examples of when cost shifting is permitted include:

  • When liability was conclusively proven107
  • When it is imposed as a court-ordered sanction108
  • When a settlement requires it109

Certain statutes authorizing collective actions may have their own notice requirements.110


James M. Wagstaffe is a renowned author, litigator, educator, and lecturer, and the premier industry authority on pretrial federal civil procedure. He is a partner and co-founder of Kerr & Wagstaffe LLP, where he heads the firm’s Federal Practice Group. He maintains a diverse litigation practice, including complex litigation, professional and governmental representation, will and trust disputes, legal ethics, First Amendment cases, and appeals in state and federal courts. He has particular expertise on virtual world issues, including electronic discovery and wi-fi technology. In 2017, California Lawyer named him Attorney of the Year for his successful representation of The State Bar of California in a high-profile privacy trial. He has authored and co-authored a number of publications, including The Wagstaffe Group® Practice Guide: Federal Civil Procedure Before Trial. As one of the nation’s top authorities on federal civil procedure, Jim has helped shape the direction and development of federal law.


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1. Fed. R. Civ. P. 23(c)(1)(A). 2. Kovaleff v. Piano, 142 F.R.D. 406, 408 (S.D.N.Y. 1992) (whether denial of class certification would result in the putative class never obtaining relief is irrelevant to whether the named plaintiffs meet the requirements of Rule 23). 3. Fed. R. Civ. P. 23(c)(1)(A); Adv. Comm. Notes to 2003 Amendments to Fed. R. Civ. P. 23. 4. McCarthy v. Kleindienst, 741 F.2d 1406, 1411–12 (D.C. Cir. 1984); Burkhalter v. Montgomery Ward & Co., 676 F.2d 291, 294 (8th Cir. 1982) (failure to file motion for class certification by the time set by the court justified striking of class allegations); Nicholas v. Deposit Guar. Nat’l Bank, 182 F.R.D. 226, 235 (S.D. Miss. 1998). 5. Premier Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n., Inc., 814 F.2d 358, 362 (7th Cir. 1987); see also Philip Morris Cos. v. Nat’l Asbestos Workers Med. Fund, 214 F.3d 132, 135 (2d Cir. 2000). 6. Authors Guild, Inc. v. Google Inc., 721 F.3d 132, 134 (2d Cir. 2013); Thomas v. UBS AG, 706 F.3d 846, 848 (7th Cir. 2013). 7. Gooch v. Life Inv’rs Ins. Co. of Am., 672 F.3d 402, 433 (6th Cir. 2012). 8. Bieneman v. Chicago, 838 F.2d 962, 963–64 (7th Cir. 1988); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554, 559 (5th Cir. 1981). 9. Kasalo v. Harris & Harris, Ltd., 656 F.3d 557, 563 (7th Cir. 2011). 10. Fed. R. Civ. P. Rule 23; Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 941 (9th Cir. 2009) (“A defendant may move to deny class certification before a plaintiff files a motion to certify a class”). 11. Cholakyan v. Mercedes-Benz USA, LLC, 796 F. Supp. 2d 1220, 1245 (C.D. Cal. 2011) (rare to strike class allegations at the pleading stage). 12. In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir. 2009); Teamsters Local 445 Freight Div. Pension Fund v. Bombardier Inc., 546 F.3d 196, 202 (2d Cir. 2008); Busby v. JRHBW Realty, Inc., 513 F.3d 1314, 1322 (11th Cir. 2008). 13. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 351 (2011). 14. Comcast Corp. v. Behrend, 569 U.S. 27, 35 (2013) (merits inquiries permitted as needed for Rule 23 analysis). 15. Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1112 (9th Cir. 2014) (forbidding “free ranging merits inquiries” to prevent class certification). 16. Marlo v. UPS, Inc., 639 F.3d 942, 947 (9th Cir. 2011). 17. Wal-Mart Stores, 564 U.S. at 351; Parsons v. Ryan, 754 F.3d 657, 674 (9th Cir. 2014). 18. Brown v. Abercrombie & Fitch Co., 2015 U.S. Dist. LEXIS 176214, at *12 (C.D. Cal. July 16, 2015). 19. Wal-Mart Stores, 564 U.S. at 350-51; Blackie v. Barrack, 524 F.2d 891, 900–01 (9th Cir. 1975). 20. Huff v. N.D. Cass Co., 485 F.2d 710, 713 (5th Cir. 1973). 21. Wal-Mart Stores, 564 U.S. at 350-1; Blackie, 524 F.2d at 901 n.17. 22. Wal-Mart Stores, 564 U.S. at 354 (“The District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings. We doubt that is so . . . ”). 23. Am. Honda Motor Co., Inc. v. Allen, 600 F.3d 813, 815–16 (7th Cir. 2010). 24. In re Zurn Pex Plumbing Products Liab. Litig., 644 F.3d 604, 613 (8th Cir. 2011). 25. Wal-Mart Stores, 564 U.S. at 358; Tyson Foods, Inc. v. Bouaphakeo, 136 S. Ct. 1036, 1045-49 (2016). 26. Tyson Foods, 136 S. Ct. at 1046; Day v. Celadon Trucking Servs., 827 F.3d 817 (8th Cir. 2016). 27. Tyson Foods, at 1047-49 (2016). 28. Fed. R. Evid. 201; Brown, 2015 U.S. Dist. LEXIS 176214, at *17 (noting limitations of judicial notice). 29. Kovaleff, 142 F.R.D. at 408 (whether denial of class certification would result in the putative class never obtaining relief is irrelevant to whether the named plaintiffs meet the requirements of Rule 23). 30. Fed. R. Civ. P. 23(c)(1)(C); Gunnells v. Healthplan Servs., 348 F.3d 417, 426 (4th Cir. 2003); Vizcaino v. United States Dist. Court, 173 F.3d 713, 721 (9th Cir. 1999). 31. Fed. R. Civ. P. 23(c)(5); Payne v. Travenol Labs., Inc., 673 F.2d 798, 812 (5th Cir. 1982). 32. Fed. R. Civ. P. 23(c)(4). 33. Neal v. Casey, 43 F.3d 48, 63 (3d Cir. 1994). 34. Pierce v. County of Orange, 526 F.3d 1190, 1200 (9th Cir. 2008); Nix v. Grand Lodge of Int’l Ass’n of Mach. & Aerospace Workers, 479 F.2d 382, 385 (5th Cir. 1973). 35. Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996). 36. Larionoff v. United States, 533 F.2d 1167, 1183 (D.C. Cir. 1976); see Izaguirre v. Tankersley, 516 F. Supp. 755, 757 (D. Or. 1981). 37. Jimenez v. Weinberger, 523 F.2d 689, 697 (7th Cir. 1975). 38. Fed. R. Civ. P. 23(g)(1)(A). 39. Fed. R. Civ. P. 23(g)(3). 40. Buonasera v. Honest Co., 318 F.R.D. 17 (S.D.N.Y. 2016). 41. Fed. R. Civ. P. 23(g)(1)(A)-(B); Patel v. Trans Union, LLC, 308 F.R.D. 292, 308 (N.D. Cal. 2015). 42. Fed. R. Civ. P. 23(g)(1)(C). 43. Fed. R. Civ. P. 23(g)(2). 44. Fed. R. Civ. P. 23(g)(1)(C). 45. Fed. R. Civ. P. 23(g)(1)(C); see In re Oracle Sec. Litig., 131 F.R.D. 688, 691 (N.D. Cal. 1990). 46. Fed. R. Civ. P. 23(g)(1)(B); Eubank v. Pella Corp., 753 F.3d 718, 724 (7th Cir. 2014); Prof’l Firefighters Ass’n of Omaha, Local 385 v. Zalewski, 678 F.3d 640, 646–47 (8th Cir. 2012). 47. Zylstra v. Safeway Stores, Inc., 578 F.2d 102, 104 (5th Cir. 1978). 48. In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 161 (3d Cir. 1984); Doe v. A Corp., 709 F.2d 1043, 1047–48 (5th Cir. 1983). 49. Sicinski v. Reliance Funding Corp., 82 F.R.D. 730, 734 (S.D.N.Y. 1979). 50. Sullivan v. Chase Inv. Servs of Boston, Inc., 79 F.R.D. 246, 258 (N.D. Cal. 1978). 51. Piambino v. Bailey, 757 F.2d 1112, 1144–45 (11th Cir. 1985). 52. Rand v. Monsanto Co., 926 F.2d 596, 600 (7th Cir. 1991) (“The very feature that makes class treatment appropriate— small individual stakes and large aggregate ones—ensures that the representative will be unwilling to vouch for the entire cost.”). 53. Stahler v. Jamesway Corp., 85 F.R.D. 85, 86 (E.D. Pa. 1979). 54. Fed. R. Civ. P. 23(c)(1)(C). 55. Jeff D. v. Andrus, 899 F.2d 753, 758 (9th Cir. 1989). 56. Fed. R. Civ. P. 23(c)(1). 57. Owner-Operator Indep. Drivers Ass’n, Inc. v. Landstar Sys., 622 F.3d 1307, 1326 (11th Cir. 2010); Pierce, 526 F.3d at 1200; Lamphere v. Brown Univ., 553 F.2d 714, 720 (1st Cir. 1977). 58. Day, 827 F.3d at 823 (“Our circuit has yet to address which party bears the burden on a motion to decertify a class.”). 59. Id. 60. Fed. R. Civ. P. 23(c)(1)(C). 61. Day, 827 F.3d 817. 62. See East Tex. Motor Freight Sys. v. Rodriguez, 431 U.S. 395, 406 n.12 (1977); Birmingham Steel Corp. v. TVA, 353 F.3d 1331, 1339 (11th Cir. 2003). 63. Matz v. Household Int’l Tax Reduction Inv. Plan, 687 F.3d 824, 825–26 (7th Cir. 2012). 64. Microsoft v. Baker, 136 S. Ct. 890 (2016) (cert. granted). 65. See http://www.uscourts.gov/rules-policies/proposedamendments-published-public-comment. 66. Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 552–53 (1974). 67. Crown v. Parker, 462 U.S. 345, 354 (1983); Yang v. Odom, 392 F.3d 97, 111 (3d Cir. 2004). 68. Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1380 (11th Cir. 1998). 69. Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1019 (9th Cir. 2000). 70. Armstrong, 138 F.3d at 1379. 71. See Hanford Nuclear Reservation Litig. v. E.I. DuPont de Nemours & Co., 534 F.3d 986, 1008 (9th Cir. 2008) (plaintiffs who file before certification are entitled to tolling); Ca. Pub. Emples. Ret. Sys. v. CabotoGruppo Intesa BCI, 496 F.3d 245, 254 (2d Cir. 2007); State Farm Mut. Auto. Ins. Co. v. Boellstorff, 540 F.3d 1223, 1228 (10th Cir. 2008) (same); Wyser-Pratte Mgmt. Co., Inc. v. Telxon Corp., 413 F.3d 553, 568–69 (6th Cir. 2005) (plaintiff who chooses to file independent action without waiting for determination on class certification issue may not rely on American Pipe tolling doctrine). 72. Bright v. United States, 603 F.3d 1273, 1285 (Fed. Cir. 2010). 73. Griffin v. Singletary, 17 F.3d 356, 359 (11th Cir. 1994). 74. In re Copper Antitrust Litig., 436 F.3d 782, 794 (7th Cir. 2006) (“[I]t is necessary at some point to file suit in federal court if the plaintiff desires to invoke federal antitrust protection. This procedural requirement is unaffected by the status of an ongoing state class action”). 75. McKowan Lowe & Co., Ltd. v. Jasmine, Ltd., 295 F.3d 380, 389 (3d Cir. 2002) (“[C]lass claims of intervening class members are tolled if a district court declines to certify a class for reasons unrelated to the appropriateness of the substantive claims for certification”). 76. Taylor v. UPS, Inc., 554 F.3d 510, 520–21 (5th Cir. 2008). 77. See Smith v. Pennington, 352 F.3d 884, 894 (4th Cir. 2003). 78. Chardon v. Fumero Soto, 462 U.S. 650 (1983). 79. See Giovanniello v. ALM Media, LLC, 726 F.3d 106, 115–16 (2d Cir. 2013); State Farm, 540 F.3d at 1228. 80. Chardon, 462 U.S. at 661. 81. In re Bridgestone/Firestone, Tires Prods. Liab. Litig., 333 F.3d 763, 769 (7th Cir. 2003) (“Every person included in the district court’s class definition still has the right to proceed on his own. What such a person now lacks is the right to represent a . . . class of others similarly situated . . . ”). 82. In re GMC Pick-Up Truck Fuel Tank Prods. Liab. Litig., 134 F.3d 133, 146 (3d Cir. 1998); Masterson v. Fed. Express Corp., 269 F.R.D. 439, 442 (M.D. Pa. 2010). 83. Fed. R. Civ. P. 23(c)(2). 84. Hammond v. Powell, 462 F.2d 1053, 1055 (4th Cir. 1972); Schaefer v. Tannian (In re Cherry), 164 F.R.D. 630, 634 (E.D. Mich. 1996). 85. Fed. R. Civ. P. 23(c)(2)(A). 86. Fed. R. Civ. P. 23(c)(2)(B); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173 (1974). 87. Fed. R. Civ. P. 23(c)(2)(B). 88. Eisen, 417 U.S. at 167. 89. Weinberger v. Kendrick, 698 F.2d 61, 71 (2d Cir. 1982). 90. Mullins v. Direct Dig., LLC, 795 F.3d 654, 665 (7th Cir. 2015); Hughes v. Kore of Ind. Enter., 731 F.3d 672, 676–77 (7th Cir. 2013). 91. Hughes, 731 F.3d at 676–77; Six (6) Mexican Workers v. Ariz. Citrus Growers, 904 F.2d 1301, 1304 n.2 (9th Cir. 1990); In re Heartland Payment Sys., 851 F. Supp. 2d 1040, 1061 (S.D. Tex. 2012). 92. Silber v. Mabon, 18 F.3d 1449, 1451 (9th Cir. 1994); Juris v. Inamed Corp., 685 F.3d 1294, 1317–19 (11th Cir. 2012). 93. McNeary-Calloway v. JP Morgan Chase Bank, N.A., 863 F. Supp. 2d 928 (N.D. Cal. 2012). 94. Proposed Fed. R. Civ. P. 23(c)(2). 95. See http://www.uscourts.gov/rules-policies/proposed-amendments-published-public-comment. 96. Jones v. Diamond, 594 F.2d 997, 1023 (5th Cir. 1979); In re Nissan Motor Corp. Antitrust Litig., 552 F.2d 1088, 1100 (5th Cir. 1977); see Oscar Gruss & Son v. Geon Indus., 89 F.R.D. 32, 37 (S.D.N.Y. 1980). 97. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340 (1978); see Larson v. AT&T Mobility LLC, 687 F.3d 109, 128–30 (3d Cir. 2012). 98. Fed. R. Civ. P. 23(c)(2)(B); Goldemberg v. Johnson & Johnson Consumer Companies, Inc., 317 F.R.D. 374, 387 (S.D.N.Y. 2016). 99. https://www.fjc.gov/ 100. In re CP Ships Ltd. Sec. Litig., 578 F.3d 1306, 1317 (11th Cir. 2009); Nissan, 552 F.2d at 1105. 101. Rodriguez v. West Publ’g. Corp., 563 F.3d 948, 962 (9th Cir. 2009); Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 338 (2d Cir. 2006). 102. Brown v. Colegio De Abogados De P.R., 613 F.3d 44, 51 (1st Cir. 2010); Schwarzschild v. Tse, 69 F.3d 293, 295 (9th Cir. 1995). 103. Weinberger, 698 F.2d at 72. 104. Harriss v. Pan Am. World Airways, Inc., 74 F.R.D. 24, 52 (N.D. Cal. 1977). 105. Eisen, 417 U.S. at 178-179. 106. See Oppenheimer Fund, 437 U.S. at 356 (defendant ordered to enclose notice in its regular mailings to individuals who comprised the class); Barahona-Gomez v. Reno, 167 F.3d 1228, 1236–1237 (9th Cir. 1999). 107. Hunt v. Imperial Merch. Servs., Inc., 560 F.3d 1137, 1143 (9th Cir. 2009) (costs shifted “after plaintiff’s showing of some success on the merits, whether by preliminary injunction, partial summary judgment, or other procedure”). 108. Nagy v. Jostens, Inc., 91 F.R.D. 431, 432–433 (D. Minn. 1981). 109. Nissan, 552 F.2d at 1103. 110. Hoffmann-La Roche, Inc. v. Sperling, 493 U.S. 165, 171 (1989) (describing special notice procedures in an Age Discrimination in Employment Act action).