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In Wojciechowski v.

A class action generally will encompass only those claims appropriate for class certification, leaving out individual claims that may not be appropriate for class action treatment. One or more plaintiffs may later seek to bring, in another court, a claim against the class action’s defendant that arises from the same events that gave rise to the class claim. The defendant is likely to protest that the subsequent claim was extinguished by the prior class action.

Under Cooper, res judicata will not preclude subsequent litigation of uncertified individual claims when the district court “pointedly refuse[s] to decide [these] individual claims.”⁶⁵ The class attorney should therefore request that a court’s order certifying the class be specific as to what claims are and are not included in the class action in order to protect the rights of class members to litigate other possible claims separately.

The doctrine of collateral estoppel or “issue preclusion” precludes relitigation, under some circumstances, of a factual or legal issue actually adjudicated in prior litigation.

The plaintiff should file the motion requesting the court to certify the case as a class action expeditiously, while also ensuring sufficient time to gather discovery to prove each element of Rule 23.

Generally speaking, the filing of a class action complaint tolls the statute of limitations for all members of the putative class until the denial of class certification.¹¹ Thus, there is generally no need to be concerned that the statute of limitations may run if there is delay in filing the motion for class certification.¹²

The class motion is a relatively short document that will be supported by the memorandum of points and authorities. Sample motions for class certification are available online as companion material to this treatise.

Most courts decide class certification after the parties’ briefing and oral argument.¹⁹ Factual issues, if any, typically are addressed using declarations, admissions, stipulations, expert reports and/or submitted deposition testimony.

Under the “common fund” doctrine, a lawyer who recovers a common fund for the benefit of a class is generally entitled to a reasonable attorney fee from the fund itself.⁷ The court’s jurisdiction over the subject matter of the suit makes possible an award that will operate to spread the fees and costs proportionately among the members of the class.⁸ When the litigation results in a common fund, no separate statutory basis is necessary for recovery of attorney fees.

Buckhannon only controls as to federal law.

After winning a class case or settling it on a favorable basis, the plaintiff’s attorney is entitled to fees, subject to the court’s determination that the fees are reasonable. The attorney fee award is the compensation for the effort expended to benefit the class. Counsel will not undertake actions of this nature unless they can receive adequate compensation for (1) their time, (2) the risk of not prevailing, (3) the delay in receipt of fees, and (4) the investment (money as well as time) that must be made in a case.

The issue of attorney fees has long been considered for Erie purposes to be substantive and not procedural.

Over time, the courts have shifted their views on the correct approach to computing attorney fees under a common fund theory—use of a lodestar or use of a percentage of the common fund. Prior to the 1970s, the federal courts awarded fees in common fund cases based on a percentage of the benefit conferred.⁸⁶ From 1973 to around 1985, the lodestar method, often with a multiplier, was temporarily in vogue in the federal courts.⁸⁷

A class action complaint must include a separate and specific class definition.¹ This section of the complaint is critical to both class certification and identification of—and notice to—class members.

Ideally, the class definition proposed to the court when seeking certification will be comprised only of persons who were exposed to and injured by the practice challenged in the case. However, for a variety of reasons, this sometimes is not possible. The information necessary to craft a perfect definition may not be available to the plaintiffs’ counsel.

Definitions that require individual factual determinations or that entail individual legal issues should be avoided or kept to an absolute minimum. The more individual issues that arise, the more likely the defendant’s challenge to class certification will succeed.

In most instances, courts require that a class definition include a firm starting date for class membership. The statute of limitations on the legal claims being asserted will often, though not always, provide the applicable starting date. If the alleged activities took place during a discrete period of time that is wholly within all applicable statutes of limitations, a recital in the complaint explaining the time period involved is appropriate, but this recital does not need to become part of the class definition.

Time limitations that are shorter than the applicable statutes of limitations may be necessary or desirable in a class definition for numerous reasons: the defendant’s practices may have begun on a more recent date; the defendant may have been routinely destroying its records after a certain period of time³²; or a specific date may constitute an essential element of the claim—for example, when the claim is based on a statute that applies only to transactions after a certain date.

The plaintiff must also consider whether to include a closing date in the class definition. This choice will often depend on various factors—for example, the continuing nature and extent of the defendant’s practices, whether the plaintiff wishes to force the defendant to change its practices, whether there is a cap on statutory damages, and the manageability of a continuing class that increases in number as the litigation continues. Another consideration is whether the class should be defined to include future members. Doing so can prevent or help overcome a numerosity challenge.

One of the most problematic questions when choosing a class definition arises from the “multistate class” issue. Many defendants transact business in multiple states, or even nationwide, and the plaintiff’s attorney will have to decide whether to limit the class to only consumers residing in one state, to include those in certain selected states, or perhaps to seek nationwide certification. This is a tactical and practical question that has become even more important in light of the Class Action Fairness Act’s federalization of a large majority of class action lawsuits.

If the claim at issue in the case arises under a federal statute, then a multistate class does not raise choice-of-law issues. The primary disadvantage of a multistate class would then be the substantial increase in the costs of potential notice and the administrative and practical concerns that can come out of having a far larger class, one that is spread across many states. These concerns may seem remote at the commencement of the case, but, in practical terms, obtaining documents or testimony or communicating with class members in many states can become time consuming and expensive.

“In addition to asking whether there are objective criteria by which class membership may be determined, [the First, Third, Fourth, and Sixth Circuits] also require that the class certification proponent demonstrate that the analysis of class membership be ‘administratively feasible,’ while [the Second, Seventh, Eighth, Ninth, and Eleventh Circuits] have explicitly rejected the administrative feasibility inquiry or have a more relaxed approach to it.

Rule 23(c)(5) states that, “[w]hen appropriate, a class may be divided into subclasses that are each treated as a class under this rule.” The 1966 Advisory Committee Note to the original version of this provision (formerly Rule 23(c)(4)(B)) reveal that this provision was intended as a mechanism for preventing uncommon issues from making a class action unmanageable on the one hand or preventing certification on the other.¹⁰⁴

Defendants will sometimes move to strike all or portions of a class definition for one reason or another, relying on Federal Rule of Civil Procedure 12(f), which authorizes a motion to strike “from a pleading . . . any . . . immaterial . . . matter.” Generally, courts deny such motions as more appropriately considered at the time class certification is decided.¹²⁰

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and