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Wednesday, December 05, 2007


Kassra Nassiri

This is not exactly a novel issue. It's the flip side of the "one-way intervention" problem addressed by the 1966 amendments to Rule 23, which generally require that class certification issues are decided prior to adjudication on the merits. See American Pipe, 414 US 538, 547 (1974). If merits were decided prior to identification of class members, then potential class members could "sit on the sidelines" and wait to see if their participation would be favorable or not. It was perceived to be unfair to defendants to allow members of a plaintiff class to benefit from a favorable judgment without subjecting themselves to the binding effect of an unfavorable one. Thus, Rule 23 is now generally interpreted to require that certification issues be determined prior to inquiries into the merits.

As Kalven and Rosenfield noted in their seminal 1941 article, it isn't fair to allow plaintiff class members to "place their bets" after the race is over. Likewise, it's "not cricket" for defendants to force bystanders into a lawsuit defendants have already won.

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