June 2011, Volume 97, Issue 4
Disorder Certifying a Class: Misinterpretations of Rule 23(c)(1)(B) and a Proposed Alternative
by Adam Milasincic
97 Va. L. Rev. 979 (2011)
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Rule 23(c)(1)(B) was added to the Federal Rules of Civil Procedure in 2003 as one of several amendments to govern the mechanics of class-action litigation. Although the Rule generated almost no concern among practitioners or scholars at the time of its enactment, it has since become an unexpected fount of litigation. The Rule does not address the all-important question of whether to certify a particular class; it simply specifies the contents of the order that district courts must compose after deciding that certification is proper. In short, certification orders must “define the class claims, issues, or defenses.” The leading opinion construing the Rule holds that it requires courts to provide detailed lists of the claims, issues, and defenses that will be resolved in the class action. That opinion is wrong. The text, history, and purposes of Rule 23(c)(1)(B) reveal the Rule’s limited scope: In ordinary cases, a certification order that simply references counts from the plaintiffs’ complaint or certifies “all of plaintiffs’ claims” would easily satisfy the Rule. Because many courts misread the Rule as requiring extensive detail, litigants have incentives to pursue wasteful motion battles over the mere formatting of class-certification orders. By debunking misinterpretations of the Rule, this Note attempts to end such battles.
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