In Rodriguez v. Hayes, ___ F.3d ___ (Aug. 20, 2009), the Ninth Circuit reversed an order denying class certification under Rule 23(b)(2) in a federal habeas corpus case. The opinion contains an interesting discussion of the elements of class certification. This language jumps out in particular in light of Tobacco:
The fact that some class members may have suffered no injury or different injuries from the challenged practice does not prevent the class from meeting the requirements of Rule 23(b)(2).
Slip op. at 11412 (citations omitted) (emphasis added).
This decision came to my attention because it was mentioned in an article called "Class Confusion" by attorney Aashish Y. Desai in the Daily Journal on Tuesday, August 25, 2009. Aashish's article points out another interesting aspect of Rodriguez:
On Aug. 20, the 9th Circuit jumped into the debate when it reversed a denial of class certification in Rodriguez v. Hayes, 2009 DJDAR 12450. The interesting and somewhat related point here was that the district court's decision was not afforded the "traditional deference" that normally comes with such decisions because the court made "no findings whatsoever" in support of its denial of class certification. As a result, the 9th Circuit analyzed the certification de novo, noting that "we may evaluate for ourselves" whether the class should have been certified in the first instance. While the respondents were quick to point out "multiple reasons" for denying certification, the 9th Circuit did not buy those arguments. Instead, it recognized that it "would be engaging in mere guesswork were we to assume the district court relied on any particular reason or reasons." [Quoting Hayes, slip op. at 11391.]